43 C.F.R. Subpart E—Buy American Requirements for Assistance Programs
Title 43 - Public Lands: Interior
Source: 59 FR 36715, July 19, 1994, unless otherwise noted.
This subpart implements section 307 of the Omnibus Consolidated Appropriations Act of 1997 (Public Law 104–208, 110 Stat. 3009) and section 501 of the Energy and Water Development Appropriations Act, 1997 (Public Law 104–206, 110 Stat. 2984). For awards made under the authority of section 307(a) of Public Law 104–208, this subpart requires that no funds made available in the Act may be expended by an entity unless the entity agrees that in expending the funds the entity will comply with sections 2 through 4 of the Act of March 3, 1933 (41 U.S.C. 10a–10c; popularly known as the “Buy American Act”). It applies to procurement contracts under grants and cooperative agreements which provide for the purchase of equipment and products. Section 501 of Public Law 104–206, 110 Stat. 2984, only applies to awards made by the Bureau of Reclamation. In addition, for these awards, there is only a requirement that in providing financial assistance to, or entering into any contract with, any entity using funds made available in this Act, the Secretary, to the greatest extent practicable, will provide to the entity a notice describing a statement within the Act made by Congress. This statement concerns the sense of the Congress that to the greatest extent practicable, all equipment and products purchased with funds made available in the Act, should be American-made. Therefore, for Fiscal Year 1997 awards, only the requirements in Section 12.700 and 12.710 will apply to awards made by the Bureau of Reclamation. [61 FR 68667, Dec. 30, 1996] Components, as used in this subpart, means those articles, materials, and supplies incorporated directly into the end products. Concern, as used in this subpart, means any business entity organized for profit (even if its ownership is in the hands of a nonprofit entity) with a place of business located in the United States and which makes a significant contribution to the U.S. economy through payment of taxes and/or use of American products, to an individual, partnership, corporation, joint venture, association, or cooperative. Domestic end product, as used in this subpart, means (a) an unmanufactured end product mined or produced in the United States; or (b) an end product manufactured in the United States, if the cost of its components mined, produced, or manufactured in the United States exceeds 50 percent of the cost of all its components. (In determining if an end product is domestic, only the end product and its components shall be considered.) The cost of each component includes transportation costs to the place of incorporation into the end product and any applicable duty (whether or not a duty-free entry certificate is issued). Components of foreign origin of the same class or kind for which determinations have been made in accordance with Section 12.710(d) (3) and (4) are treated as domestic. Scrap generated, collected, and prepared for processing in the United States is considered domestic. On acquisitions above $25,000 in value, components of Canadian origin are treated as domestic. Domestic offer, as used in this subpart, means an offered price for a domestic end product, including transportation to destination. End product, as used in this subpart, means those articles, materials, and supplies to be acquired for public use under the grant, cooperative agreement, or procurement contract awarded under the grant or cooperative agreement. Foreign end product, as used in this subpart, means an end product other than a domestic end product. Foreign offer, as used in this subpart, means an offered price for a foreign end product, including transportation to destination and duty (whether or not a duty-free entry certificate is issued). Instrumentality, as used in this subpart, does not include an agency or division of the government of a country. Labor surplus area, as used in this subpart, means a geographical area identified by the Department of Labor in accordance with 20 CFR part 654, subpart A, as an area of concentrated unemployment or underemployment or an area of labor surplus. Labor surplus area concern, as used in this subpart, means a concern that together with its first-tier subcontractors will perform substantially in labor surplus areas. Performance is substantially in labor surplus areas if the costs incurred under the contract on account of manufacturing, production, or performance of appropriate services in labor surplus areas exceed 50 percent of the contract price. United States, as used in this subpart, means the states thereof, the District of Columbia, and the territories and possessions of the United States. [59 FR 36715, July 19, 1994, as amended at 61 FR 68668, Dec. 30, 1996] (a) In the case of any equipment or product that may be authorized to be purchased with financial assistance provided using funds made available under Public Law 104–208, it is the sense of Congress that entities receiving the assistance should, in expending the assistance, purchase only American-made equipment and products. (b) In awarding financial assistance under Public Law 104–208, 110 Stat. 3009, bureaus and offices excluding the Bureau of Reclamation will provide to each recipient of the assistance the following notice:
In the case of any equipment or product that may be authorized to be purchased with financial assistance provided using funds made available in this act, it is the sense of the Congress that entities receiving the assistance should, in expending the assistance, purchase only American-made equipment and products. (c) In awarding financial assistance using funds made available under Public Law 104–206, to the greatest extent practicable, the Bureau of Reclamation will provide to each recipient of the assistance the following notice:
It is the sense of the Congress, that to the greatest extent practicable, all equipment and products purchased with funds made available in this act should be American-made. (d) The Buy American Act requires that only domestic end products be acquired for public use, except articles, materials, and supplies— (1) For use outside the United States; (2) For which the cost would be unreasonable, as determined in accordance with §12.715; (3) For which the agency head determines that domestic preference would be inconsistent with the public interest; or (4) That are not mined, produced, or manufactured in the United States in sufficient and reasonable available commercial quantities, of a satisfactory quality (see §12.720). (e) The grantee's contracting officer may make a nonavailability determination under §12.710(d)(4) for a procurement contract awarded under the grant or cooperative agreement if— (1) The procurement action was conducted by full and open competition; (2) The procurement action was publicly advertised; and (3) No offer for a domestic end product was received; or (f) The head of the grantee's contracting activity or designee may make a nonavailability determination under §12.710(d)(4) for any circumstance other than specified in paragraph (e) of this section. [59 FR 36715, July 19, 1994, as amended at 59 FR 65500, Dec. 20, 1994; 61 FR 39084, July 26, 1996; 61 FR 68668, Dec. 30, 1996] (a) Unless the head of the grantee organization or a designee at a level no lower than the grantee's designated awarding official determines otherwise, the offered price of a domestic end product is unreasonable when the lowest acceptable domestic offer exceeds the lowest acceptable foreign offer (see §12.705), inclusive of duty, by— (1) More than 6 percent, if the domestic offer is from a large business that is not a labor surplus area concern; or (2) More than 12 percent, if the domestic offer is from a small business concern or any labor surplus area concern. (b) The evaluation in paragraph (a) of this section shall be applied on an item-by-item basis or to any group of items on which award may be made as specifically provided by the solicitation. (c) If an award of more than $250,000 would be made to a domestic concern if the 12-percent factor were applied, but not if the 6-percent factor were applied, the head of the grantee organization or a designee at a level no lower than the grantee's designated awarding official shall decide whether award to the domestic concern would involve unreasonable cost. (a) As indicated in the Federal Acquisition Regulation (FAR), one or more agencies have determined that the articles, materials, and supplies on the list referred to in paragraph (b) of this section are not mined, produced, or manufactured in the United States in sufficient and reasonably available commercial quantities of a satisfactory quality. This referenced list in paragraph (b) of this section is furnished for information only; an article, material or supply listed therein may be treated as domestic only when the head of the grantee organization or a designee at a level no lower than the grantee's designated awarding official has made a determination that it is not mined, produced, or manufactured in the United States in sufficient and reasonably available quantities of a satisfactory quality. (b) Refer to the current list of excepted articles, materials, and supplies in FAR 25.108 (48 CFR 25.108). (a) When quotations are obtained orally, vendors shall be informed that only domestic end products, other than end products excepted on a blanket or individual basis (see §12.720), shall be acceptable, unless the price for an offered domestic end product is unreasonable (see §12.715). (b) The grantee awarding officer shall insert the clause at §12.730, Buy American Act—Supplies, in solicitations for procurement contracts awarded under the grant or cooperative agreement for the purchase of supplies, or for services involving the furnishing of supplies, for use within the United States. As prescribed in §12.725, insert the following clause: Buy American Act—Supplies
(a) The Buy American Act (41 U.S.C. 10) provides that the Government give preference to domestic end products. Components, as used in this clause, means those articles, materials, and supplies incorporated directly into the end products. Domestic end product, as used in this clause, means an unmanufactured end product mined or produced in the United States, if the cost of its components mined, produced, or manufactured in the United States exceeds 50 percent of the cost of all its components. Components of foreign origin of the same class or kind as the products referred to in paragraphs (b)(2) or (3) of this clause shall be treated as domestic. End products, as used in this clause, means those articles, materials, and supplies to be acquired for public use under this contract. (b) The contractor shall deliver only domestic end products, except those— (1) For use outside the United States; (2) That the Government determines are not mined, produced, or manufactured in the United States in sufficient and reasonably available commercial quantities of a satisfactory quality; (3) For which the head of the grantee organization or a designee at a level no lower than the grantee's designated awarding official determines that domestic preference would be inconsistent with the public interest; or (4) For which the head of the grantee organization or a designee at a level no lower than the grantee's designated awarding official determines the cost to be unreasonable (see §12.715). (End of clause)
Title 43: Public Lands: Interior
PART 12—ADMINISTRATIVE AND AUDIT REQUIREMENTS AND COST PRINCIPLES FOR ASSISTANCE PROGRAMS
Subpart E—Buy American Requirements for Assistance Programs
Buy American Act—Supplies
§ 12.700 Scope.
§ 12.705 Definitions.
§ 12.710 Policy.
§ 12.715 Evaluating offers.
§ 12.720 Excepted articles, materials, and supplies.
§ 12.725 Solicitation provisions and contract clause.
§ 12.730 Buy American Act—Supplies.
Buy American Act—Construction Materials
§ 12.800 Scope.
This subpart implements the Buy American Act (41 U.S.C. 10). It applies to procurement contracts awarded under a grant or cooperative agreement for the construction, alteration, or repair of any public building or public work in the United States.
§ 12.805 Definitions.
Components, as used in this subpart, means those articles, materials, and supplies incorporated directly into construction materials.
Construction, as used in this subpart, means construction, alteration, or repair of any public building or public work in the United States.
Construction materials, as used in this subpart, means an article, material, and supply brought to the construction site for incorporation into the building or work.
Construction material also includes an item brought to the site pre-assembled from articles, materials, and supplies. However, emergency life safety systems, such as emergency lighting, fire alarm, and audio evacuation systems, which are discrete systems incorporated into a public building or work and which are produced as a complete system, shall be evaluated as a single and distinct construction material regardless of when or how the individual parts or components of such systems are delivered to the construction site.
Domestic construction material, as used in this section, means: (a) An unmanufactured construction material mined or produced in the United States, or (b) a construction material manufactured in the United States, if the cost of its components mined, produced, or manufactured in the United States exceeds 50 percent of the cost of all its components. (In determining whether a construction material is domestic, only the construction material and its components shall be considered.) The cost of each component includes transportation costs to the place of incorporation into the construction material and any applicable duty (whether or not a duty-free entry certificate is issued). Components of foreign origin of the same class or kind for which determinations have been made in accordance with §12.810(a)(3) are treated as domestic.
Foreign construction material, as used in this section, means as construction material other than a domestic construction material.
United States (see §12.705).
§ 12.810 Policy.
(a) The Buy American Act requires that only domestic construction materials be used in construction in the United States, except when—
(1) The cost would be unreasonable as determined in accordance with §12.815;
(2) The head of the grantee organization or a designee at a level no lower than the grantee's designated awarding official determines that use of a particular domestic construction material would be impracticable; or
(3) The head of the grantee organization or a designee at a level no lower than the grantee's designated awarding official determines the construction material is not mined, produced, or manufactured in the United States in sufficient and reasonably available commercial quantities of a satisfactory quality (see §12.720).
(b) When it is determined for any reasons stated in this section that certain foreign construction materials may be used, the excepted materials shall be listed in the agreement. Findings justifying the exception shall be available for public inspection.
§ 12.815 Evaluating offers.
(a) The restrictions of the Buy American Act do not apply when the head of the grantee organization or a designee at a level no lower than the grantee's designated awarding official determines that using a particular domestic construction material would unreasonably increase the cost or would be impracticable.
(b) When proposed awards are submitted to the head of the grantee organization or a designee at a level no lower than the grantee's designated awarding official for approval, each submission shall include a description of the materials, including unit and quantity, estimated costs, location of the construction project, name and address of the proposed contractor, and a detailed justification of the impracticability of using domestic materials.
§ 12.820 Violations.
Violation of the Buy American Act in the performance of a procurement construction contract under a grant or cooperative agreement is a cause for debarment. Information concerning a failure to comply with the clause at §12.830, Buy American Act—Construction Materials, shall be promptly reported, investigated, and referred, when appropriate to the appropriate U.S. Department of the Interior employee responsible for administering the grant or cooperative agreement. (For debarment procedures, see subpart D of this part).
§ 12.825 Solicitation provision and contract clause.
The grantee awarding official shall insert the clause at §12.830, Buy American Act—Construction Materials, in solicitations for procurement contracts awarded under a grant or cooperative agreement for construction inside the United States.
§ 12.830 Buy American Act—Construction materials.
As prescribed in §12.825, insert the following clause in solicitations for procurement contracts awarded under a grant or cooperative agreement for construction inside the United States:
Buy American Act—Construction Materials
(a) The Buy American Act (41 U.S.C. 10) provides that the Government give preference to domestic construction material. Components, used in this clause, means those articles, materials, and supplies incorporated directly into construction materials. Construction material, as used in this clause, means an article, material, or supply brought to the construction site for incorporation into the building or work. Construction material also includes an item brought to the site pre-assembled from articles, materials or supplies. However, emergency life safety systems, such as emergency lighting, fire alarm, and audio evacuation systems, which are discrete systems incorporated into a public building or work and which are produced as a complete system, shall be evaluated as a single and distinct construction material regardless of when or how the individual parts or components of such systems are delivered to the construction site. Domestic construction material, as used in this clause, means (a) an unmanufactured construction material mined or produced in the United States, or (b) a construction material manufactured in the United States, if the cost of its components mined, produced, or manufactured in the United States exceeds 50 percent of the cost of all its components. Components of foreign origin of the same class or kind as the construction materials determined to be unavailable pursuant to §12.810(a)(3) of 43 CFR part 12, subpart E shall be treated as domestic. (b) The contractor agrees that only domestic construction material will be used by the contractor, subcontractors, materialmen, and suppliers in the performance of this agreement, except for foreign construction materials, if any, listed in this agreement.
(End of clause)
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