SUBPART 225.1--BUY AMERICAN ACT--SUPPLIES

(Revised December 9, 2005)

 

 

 225.101 General.
 225.103 Exceptions.
 225.104 Nonavailable articles.
 225.105 Determining reasonableness of cost.
 225.170 Acquisition from or through other Government agencies.


225.101     General.

 

      (a)  For DoD, the following two-part test determines whether a manufactured end product is a domestic end product:

 

              (i)  The end product is manufactured in the United States; and

 

              (ii)  The cost of its U.S. and qualifying country components exceeds 50 percent of the cost of all its components.  This test is applied to end products only and not to individual components.

 

      (c)  Additional exceptions that allow the purchase of foreign end products are listed at 225.103.

 

225.103  Exceptions.

 

      (a)(i)(A)  Public interest exceptions for certain countries are in 225.872.

 

              (B)  For procurements covered by the World Trade Organization Government Procurement Agreement, the Under Secretary of Defense (Acquisition, Technology, and Logistics) has determined that it is inconsistent with the public interest to apply the Buy American Act to end products that are substantially transformed in the United States.

 

              (ii)(A)  Normally, use the evaluation procedures in Subpart 225.5, but consider recommending a public interest exception if the purposes of the Buy American Act are not served, or in order to meet a need set forth in 10 U.S.C. 2533.  For example, a public interest exception may be appropriate—

 

                            (1)  If accepting the low domestic offer will involve substantial foreign expenditures, or accepting the low foreign offer will involve substantial domestic expenditures;

 

                            (2)  To ensure access to advanced state-of-the-art commercial technology; or

 

                            (3)  To maintain the same source of supply for spare and replacement parts (also see paragraph (b)(iii)(B) of this section)—

 

                                    (i)  For an end item that qualifies as a domestic end product; or

 

                                    (ii)  In order not to impair integration of the military and commercial industrial base.

 

                    (B)  Except as provided in 225.872-4(b), process a determination for a public interest exception after consideration of the factors in 10 U.S.C. 2533—

 

                            (1)  At a level above the contracting officer for acquisitions valued at or below the simplified acquisition threshold;

 

                            (2)  By the head of the contracting activity for acquisitions with a value greater than the simplified acquisition threshold but less than $1,000,000; or

 

                            (3)  By the agency head for acquisitions valued at $1,000,000 or more.

 

      (b)(i)  A determination that an article, material, or supply is not reasonably available is required when domestic offers are insufficient to meet the requirement and award is to be made on other than a qualifying country or eligible end product.

 

              (ii)  Except as provided in FAR 25.103(b)(3), the determination shall be approved—

 

                    (A)  At a level above the contracting officer for acquisitions valued at or below the simplified acquisition threshold;

 

                    (B)  By the chief of the contracting office for acquisitions with a value greater than the simplified acquisition threshold but less than $1,000,000; or

 

                    (C)  By the head of the contracting activity or immediate deputy for acquisitions valued at $1,000,000 or more.

 

              (iii)  A separate determination as to whether an article is reasonably available is not required for the following articles.  DoD has already determined that these articles are not reasonably available from domestic sources:

 

                    (A)  End products or components listed in 225.104(a).

 

                    (B)  Spare or replacement parts that must be acquired from the original foreign manufacturer or supplier.

 

                    (C)  Foreign drugs acquired by the Defense Supply Center, Philadelphia, when the Director, Pharmaceuticals Group, Directorate of Medical Materiel, determines that only the requested foreign drug will fulfill the requirements.

 

              (iv)  Under coordinated acquisition (see Subpart 208.70), the determination is the responsibility of the requiring department when the requiring department specifies acquisition of a foreign end product.

 

      (c)  The cost of a domestic end product is unreasonable if it is not the low evaluated offer when evaluated under Subpart 225.5.

 

225.104  Nonavailable articles.

 

      (a)  DoD has determined that the following articles also are nonavailable in accordance with FAR 25.103(b):

 

              (i)  Aluminum clad steel wire.

 

              (ii)  Sperm oil.

 

225.105  Determining reasonableness of cost.

      (b)  Use an evaluation factor of 50 percent instead of the factors specified in FAR 25.105(b).

 

225.170  Acquisition from or through other Government agencies.

Contracting activities must apply the evaluation procedures in Subpart 225.5 when using Federal supply schedules.