(Revised March 21, 2006)
225.7000 Scope of subpart.
225.7001 Definitions.
225.7002 Restrictions on food, clothing, fabrics,
specialty metals, and hand or measuring tools.
225.7002-1 Restrictions.
225.7002-2 Exceptions.
225.7002-3 Contract clauses.
225.7003 Waiver of restrictions
of 10 U.S.C. 2534.
225.7004 Restriction on
acquisition of foreign buses.
225.7004-1 Restriction.
225.7004-2 Applicability.
225.7004-3 Exceptions.
225.7004-4 Waiver.
225.7005 Restriction on certain
chemical weapons antidote.
225.7005-1 Restriction.
225.7005-2 Exception.
225.7005-3 Waiver.
225.7006 Restriction on air circuit breakers for naval vessels.
225.7006-1 Restriction.
225.7006-2 Exceptions.
225.7006-3 Waiver.
225.7006-4 Solicitation
provision and contract clause.
225.7007 Restrictions on anchor
and mooring chain.
225.7007-1 Restrictions.
225.7007-2 Waiver.
225.7007-3 Contract clause.
225.7008 Reserved.
225.7009 Restriction on ball and roller bearings.
225.7009-1 Scope.
225.7009-2 Restriction.
225.7009-3 Exception.
225.7009-4 Waiver.
225.7009-5 Contract clause.
225.7010 Restriction on vessel
propellers.
225.7010-1 Restriction.
225.7010-2 Exceptions.
225.7010-3 Waiver.
225.7010-4 Contract clause.
225.7011 Restriction on carbon,
alloy, and armor steel plate.
225.7011-1 Restriction.
225.7011-2 Waiver.
225.7011-3 Contract clause.
225.7012 Restriction on
supercomputers.
225.7012-1 Restriction.
225.7012-2 Waiver.
225.7012-3 Contract clause.
225.7013 Restrictions on
construction or repair of vessels in foreign shipyards.
225.7014 Restriction on overseas
military construction.
225.7015 Restriction on overseas
architect-engineer services.
225.7016 Restriction on research
and development.
225.7017 Restriction on
Ballistic Missile Defense research, development, test, and evaluation.
225.7017-1 Definitions.
225.7017-2 Restriction.
225.7017-3 Exceptions.
225.7017-4 Solicitation
provision.
225.7000 Scope of subpart.
(a) This subpart contains restrictions on the
acquisition of foreign products and services, imposed by DoD appropriations and
authorization acts and other statutes.
Refer to the acts to verify current applicability of the restrictions.
(b) Nothing in this subpart affects the
applicability of the Buy American Act or the Balance of Payments Program.
225.7001 Definitions.
As used in this subpart—
(a)
“Bearing components” is defined in the clause at 252.225-7016,
Restriction on Acquisition of Ball and Roller Bearings.
(b)
“Component” is defined in the clauses at 252.225-7012, Preference for
Certain Domestic Commodities, and 252.225-7016, Restriction on Acquisition of
Ball and Roller Bearings.
(c) “Hand or measuring tools” means those tools
listed in Federal supply classifications 51 and 52, respectively.
(d) “Specialty metals” is defined in the clause
at 252.225-7014, Preference for Domestic Specialty Metals.
225.7002 Restrictions on food, clothing, fabrics,
specialty metals, and hand or measuring tools.
225.7002-1 Restrictions.
The following restrictions implement 10 U.S.C. 2533a. Except as provided in subsection 225.7002-2,
do not acquire--
(a) Any of the following items, either as end
products or components, unless the items have been grown, reprocessed, reused,
or produced in the United States:
(1) Food.
(2) Clothing.
(3) Tents, tarpaulins, or covers.
(4) Cotton and other natural fiber products.
(5) Woven silk or woven silk blends.
(6) Spun silk yarn for cartridge cloth.
(7) Synthetic fabric or coated synthetic fabric,
including all textile fibers and yarns that are for use in such fabrics.
(8) Canvas products.
(9) Wool (whether in the form of fiber or yarn or
contained in fabrics, materials, or manufactured articles).
(10) Any item of individual equipment (Federal
Supply Class 8465) manufactured from or containing any of the fibers, yarns,
fabrics, or materials listed in this paragraph (a).
(b) Specialty metals, including stainless steel
flatware, unless the metals were melted in steel manufacturing facilities
located within the United States.
(c) Hand or measuring tools, unless the tools
were produced in the United States.
225.7002-2 Exceptions.
Acquisitions in the following categories are not subject to the
restrictions in 225.7002-1:
(a) Acquisitions at or below the simplified
acquisition threshold.
(b) Acquisitions of any of the items in
225.7002-1(a) or (b), if the Secretary concerned determines that items grown,
reprocessed, reused, or produced in the United States cannot be acquired as and
when needed in a satisfactory quality and sufficient quantity at U.S. market
prices.
(1) The following officials are authorized,
without power of redelegation, to make such a
domestic nonavailability determination:
(i) The Under
Secretary of Defense (Acquisition, Technology, and Logistics).
(ii) The Secretary of the Army.
(iii) The Secretary of the Navy.
(iv) The Secretary of the Air Force.
(2) The supporting documentation for the
determination shall include—
(i) An analysis of
alternatives that would not require a domestic nonavailability
determination; and
(ii) A written certification by the requiring
activity, with specificity, why such alternatives are unacceptable.
(3) Defense agencies shall follow the procedures
at PGI 225.7002-2(b)(3) (Pop-up Window or PGI Viewer Mode) when submitting a request for a domestic nonavailability determination.
(4) If an official listed in paragraph (b)(1)(ii)
through (iv) of this subsection makes a domestic nonavailability
determination for the acquisition of titanium or a product containing titanium,
that official shall—
(i) Notify the
congressional defense committees at least 10 days before the award of a
contract that relies on such a determination; and
(ii) Provide a copy of the notification and the
determination to the Director, Defense Procurement and Acquisition Policy, as
specified in PGI 225.7002-2(b)(4) (Pop-up Window or PGI Viewer Mode).
(5) See PGI 225.7002-2(b)(5) (Pop-up Window or PGI Viewer Mode) for related policy
memoranda.
(c) Acquisitions of items listed in FAR
25.104(a), unless the items are hand or measuring tools.
(d) Acquisitions outside the United States in
support of combat operations.
(e) Acquisitions of perishable foods by activities
located outside the United States for personnel of those activities.
(f) Acquisitions of food, specialty metals, or
hand or measuring tools—
(1) In support of contingency operations; or
(2) For which the use of other than competitive
procedures has been approved on the basis of unusual and compelling urgency in
accordance with FAR 6.302-2.
(g) Emergency acquisitions by activities located
outside the United States for personnel of those activities.
(h) Acquisitions by vessels in foreign waters.
(i) Acquisitions of items specifically for
commissary resale.
(j) Acquisitions of end products incidentally
incorporating cotton, other natural fibers, or wool, for which the estimated
value of the cotton, other natural fibers, or
wool--
(1) Is not more than 10 percent of the total
price of the end product; and
(2) Does not exceed the simplified acquisition
threshold.
(k) Acquisitions of waste and byproducts of
cotton or wool fiber for use in the production of propellants and explosives.
(l) Acquisitions of foods manufactured or
processed in the United States, regardless of where the foods (and any
component if applicable) were grown or produced. However, in accordance with Section 8136 of
the DoD Appropriations Act for Fiscal Year 2003 (Pub. L. 107-248) and similar
sections in subsequent DoD appropriations acts, this exception does not apply
to fish, shellfish, or seafood manufactured or processed in the United States
or fish, shellfish, or seafood contained in foods manufactured or processed in
the United States.
(m) Purchases of specialty metals by
subcontractors at any tier for programs other than—
(1) Aircraft;
(2) Missile and space systems;
(3) Ships;
(4)
Tank-automotive;
(5) Weapons; and
(6) Ammunition.
(n) Acquisitions of
specialty metals and chemical warfare protective clothing when the acquisition
furthers an agreement with a qualifying country (see 225.872).
(o) Acquisitions of
fibers and yarns that are for use in synthetic fabric or coated synthetic
fabric (but not the purchase of the synthetic or coated synthetic fabric
itself), if¾
(1) The fabric
is to be used as a component of an end product that is not a textile
product. Examples of textile products,
made in whole or in part of fabric, include¾
(i) Draperies, floor coverings, furnishings, and
bedding (Federal Supply Group 72, Household and Commercial Furnishings and
Appliances);
(ii) Items
made in whole or in part of fabric in Federal Supply Group 83,
Textile/leather/furs/apparel/findings/tents/flags, or Federal Supply Group 84,
Clothing, Individual Equipment and Insignia;
(iii) Upholstered
seats (whether for household, office, or other use); and
(iv)
Parachutes (Federal Supply Class 1670); or
(2) The fibers
and yarns are para-aramid fibers and yarns
manufactured in¾
(i) The Netherlands; or
(ii) Another qualifying country (see 225.872) if
the Under Secretary of Defense (Acquisition, Technology, and Logistics) makes a
determination in accordance with Section 807 of Pub. L. 105-261 that¾
(A)
Procuring articles that contain only para-aramid
fibers and yarns manufactured from suppliers within the United States would
result in sole source contracts or subcontracts for the supply of such para-aramid fibers and yarns;
(B)
Such sole source contracts or subcontracts would not be in the best
interest of the Government or consistent with the objectives of the Competition
in Contracting Act (10 U.S.C. 2304); and
(C)
The qualifying country permits U.S. firms that manufacture para-aramid fibers and yarns to compete with foreign firms
for the sale of para-aramid fibers and yarns in that
country.
225.7002-3 Contract clauses.
Unless an exception
applies—
(a) Use the clause at
252.225-7012, Preference for Certain Domestic Commodities, in solicitations and
contracts exceeding the simplified acquisition threshold.
(b)(1) Use the clause at
252.225-7014, Preference for Domestic Specialty Metals, in solicitations and
contracts exceeding the simplified acquisition threshold that require delivery
of an article containing specialty metals.
(2) Use the clause with its Alternate I in solicitations
and contracts exceeding the simplified acquisition threshold requiring
delivery, for one of the following major programs, of an article containing
specialty metals:
(i) Aircraft.
(ii) Missile and space systems.
(iii) Ships.
(iv) Tank-automotive.
(v) Weapons.
(vi) Ammunition.
(c) Use the clause at
252.225-7015, Restriction on Acquisition of Hand or Measuring Tools, in solicitations
and contracts exceeding the simplified acquisition threshold that require
delivery of hand or measuring tools.
225.7003 Waiver of restrictions
of 10 U.S.C. 2534.
(a) The waiver
procedures of this section apply only if specifically authorized by reference elsewhere
in this subpart. The restrictions on certain
foreign purchases under 10 U.S.C. 2534(a) may be waived as follows:
(1)(i) The Under Secretary of Defense (Acquisition,
Technology, and Logistics), without power of delegation, may waive a restriction
for a particular item for a particular foreign country upon determination that¾
(A)
United States producers of the item would not be jeopardized by
competition from a foreign country, and that country does not discriminate
against defense items produced in the United States to a greater degree than
the United States discriminates against defense items produced in that country;
or
(B)
Application of the restriction would impede cooperative programs entered
into between DoD and a foreign country, or would impede the reciprocal
procurement of defense items under a memorandum of understanding providing for
reciprocal procurement of defense items under 225.872, and that country does
not discriminate against defense items produced in the United States to a
greater degree than the United States discriminates against defense items
produced in that country.
(ii) A
notice of the determination to exercise the waiver authority shall be published
in the Federal Register and submitted to the congressional defense committees
at least 15 days before the effective date of the waiver.
(iii) The
effective period of the waiver shall not exceed 1 year.
(iv) For
contracts entered into prior to the effective date of a waiver, provided
adequate consideration is received to modify the contract, the waiver shall be
applied as directed or authorized in the waiver to¾
(A)
Subcontracts entered into on or after the effective date of the waiver;
and
(B)
Options for the procurement of items that are exercised after the
effective date of the waiver, if the option prices are adjusted for any reason
other than the application of the waiver.
(2) The head of
the contracting activity may waive a restriction on a case-by-case basis upon
execution of a determination and findings that any of the following applies:
(i) The restriction
would cause unreasonable delays.
(ii)
Satisfactory quality items manufactured in the United States or Canada
are not available.
(iii)
Application of the restriction would result in the existence of only one
source for the item in the United States or Canada.
(iv)
Application of the restriction is not in the national security interests
of the United States.
(v)
Application of the restriction would adversely affect a U.S. company.
(3) A
restriction is waived when it would cause unreasonable costs. The cost of an item of U.S. or Canadian
origin is unreasonable if it exceeds 150 percent of the offered price, inclusive
of duty, of items that are not of U.S. or Canadian origin.
(b) In accordance with the provisions of
paragraphs (a)(1)(i) through (iii) of this section,
the Under Secretary of Defense (Acquisition, Technology, and Logistics) has
waived the restrictions of 10 U.S.C. 2534(a) for certain items manufactured in
the United Kingdom, including air circuit breakers for naval vessels (see
225.7006). This waiver applies to—
(1) Procurements
under solicitations issued on or after August 4, 1998; and
(2) Subcontracts
and options under contracts entered into prior to August 4, 1998, under the
conditions described in paragraph (a)(1)(iv) of this section.
225.7004 Restriction on
acquisition of foreign buses.
225.7004-1 Restriction.
In accordance with 10
U.S.C. 2534, do not acquire a multipassenger motor
vehicle (bus) unless it is manufactured in the United States or Canada.
225.7004-2 Applicability.
Apply this restriction
if the buses are purchased, leased, rented, or made available under contracts
for transportation services.
225.7004-3 Exceptions.
This restriction does
not apply in any of the following circumstances:
(a) Buses manufactured
outside the United States and Canada are needed for temporary use because buses
manufactured in the United States or Canada are not available to satisfy
requirements that cannot be postponed.
Such use may not, however, exceed the lead time required for acquisition
and delivery of buses manufactured in the United States or Canada.
(b) The requirement for
buses is temporary in nature. For
example, to meet a special, nonrecurring requirement or a sporadic and
infrequent recurring requirement, buses manufactured outside the United States
and Canada may be used for temporary periods of time. Such use may not, however, exceed the period
of time needed to meet the special requirement.
(c) Buses manufactured outside the United States
and Canada are available at no cost to the U.S. Government.
(d) The acquisition is
for an amount at or below the simplified acquisition threshold.
225.7004-4 Waiver.
The waiver criteria at
225.7003(a) apply to this restriction.
225.7005 Restriction on certain
chemical weapons antidote.
225.7005-1 Restriction.
In accordance with 10
U.S.C. 2534 and defense industrial mobilization requirements (see Subpart
208.72), do not acquire chemical weapons antidote contained in automatic
injectors, or the components for such injectors, unless the chemical weapons
antidote or component is manufactured in the United States or Canada by a
company that—
(a) Is a producer under
the industrial preparedness program at the time of contract award;
(b) Has received all
required regulatory approvals; and
(c) Has the plant,
equipment, and personnel to perform the contract in the United States or Canada
at the time of contract award.
225.7005-2 Exception.
This restriction does not
apply if the acquisition is for an amount at or below the simplified
acquisition threshold.
225.7005-3 Waiver.
The waiver criteria at
225.7003(a) apply to this restriction.
225.7006
Restriction on air circuit breakers for naval
vessels.
225.7006-1 Restriction.
In accordance with 10
U.S.C. 2534, do not acquire air circuit breakers for naval vessels unless they
are manufactured in the United States or Canada.
225.7006-2 Exceptions.
This restriction does
not apply if the acquisition is—
(a) For an amount at or
below the simplified acquisition threshold; or
(b) For spare or repair
parts needed to support air circuit breakers manufactured outside the United
States. Support includes the purchase of
spare air circuit breakers when those from alternate sources are not
interchangeable.
225.7006-3 Waiver.
(a) The waiver criteria
at 225.7003(a) apply to this restriction.
(b) The Under Secretary
of Defense (Acquisition, Technology, and Logistics) has waived the restriction
for air circuit breakers manufactured in the United Kingdom. See 225.7003(b) for applicability.
225.7006-4 Solicitation
provision and contract clause.
(a) Use the provision at
252.225-7037, Evaluation of Offers for Air Circuit Breakers, in solicitations
requiring air circuit breakers for naval vessels unless--
(1) An exception
applies; or
(2) A waiver has
been granted, other than the waiver for the United Kingdom, which has been
incorporated into the provision.
(b) Use the clause at
252.225-7038, Restriction on Acquisition of Air Circuit Breakers, in
solicitations and contracts requiring air circuit breakers for naval vessels
unless--
(1) An exception
applies; or
(2) A waiver has
been granted, other than the waiver for the United Kingdom, which has been
incorporated into the clause.
225.7007 Restrictions on anchor
and mooring chain.
225.7007-1 Restrictions.
(a) In
accordance with Section 8041 of the Fiscal Year 1991 DoD Appropriations Act
(Pub. L. 101-511) and similar sections in subsequent DoD appropriations acts,
do not acquire welded shipboard anchor and mooring chain, four inches or less
in diameter, unless--
(1) It is
manufactured in the United States, including cutting, heat treating, quality
control, testing, and welding (both forging and shot blasting process); and
(2) The cost of
the components manufactured in the United States exceeds 50 percent of the
total cost of components.
(b) 10 U.S.C. 2534 also
restricts acquisition of welded shipboard anchor and mooring chain, four inches
or less in diameter, when used as a component of a naval vessel. However, the Appropriations Act restriction
described in paragraph (a) of this subsection takes precedence over the
restriction of 10 U.S.C. 2534.
225.7007-2 Waiver.
(a) The Secretary of the
department responsible for acquisition may waive the restriction in
225.7007-1(a), on a case-by-case basis, if--
(1) Sufficient
domestic suppliers are not available to meet DoD requirements on a timely
basis; and
(2) The
acquisition is necessary to acquire capability for national security purposes.
(b) Document the waiver
in a written determination and findings containing--
(1) The factors
supporting the waiver; and
(2) A
certification that the acquisition must be made in order to acquire capability
for national security purposes.
(c) Provide a copy of
the determination and findings to the House and Senate Committees on
Appropriations.
225.7007-3 Contract clause.
Unless a waiver has been
granted, use the clause at 252.225-7019, Restriction on Acquisition of Anchor
and Mooring Chain, in solicitations and contracts requiring welded shipboard
anchor or mooring chain four inches or less in diameter.
225.7008 Reserved.
225.7009 Restriction on ball and roller bearings.
225.7009-1
Scope.
This
section implements Section 8065 of the Fiscal Year 2002 DoD Appropriations Act
(Pub. L. 107-117) and the same restriction in subsequent DoD appropriations
acts.
225.7009-2
Restriction.
Do not
acquire ball and roller bearings or bearing components unless the bearings and
bearing components are manufactured in the United States or Canada.
225.7009-3
Exception.
The
restriction in 225.7009-2 does not apply to contracts or subcontracts for the
acquisition of commercial items, except for commercial ball and roller bearings
acquired as end items.
225.7009-4
Waiver.
The
Secretary of the department responsible for acquisition or, for the Defense
Logistics Agency, the Component Acquisition Executive, may waive the
restriction in 225.7009-2, on a case-by-case basis, by certifying to the House
and Senate Committees on Appropriations that--
(a)
Adequate domestic supplies are not available to meet DoD requirements on
a timely basis; and
(b)
The acquisition must be made in order to acquire capability for national
security purposes.
225.7009-5
Contract clause.
Use the
clause at 252.225-7016, Restriction on Acquisition of Ball and Roller Bearings,
in solicitations and contracts, unless—
(a)
The items being acquired are commercial items other than ball or roller
bearings acquired as end items;
(b)
The items being acquired do not contain ball and roller bearings; or
(c)
A waiver has been granted in accordance with 225.7009-4.
225.7010 Restriction on vessel
propellers.
225.7010-1 Restriction.
In accordance with
Section 8064 of the Fiscal Year 2001 DoD Appropriations Act (Pub. L. 106-259),
do not use fiscal year 2000 or 2001 funds to acquire vessel propellers other
than those produced by a domestic source and of domestic origin, i.e., vessel
propellers—
(a) Manufactured in the
United States or Canada; and
(b) For which all
component castings were poured and finished in the United States or Canada.
225.7010-2 Exceptions.
This restriction does
not apply to contracts or subcontracts for acquisition of commercial items.
225.7010-3 Waiver.
The Secretary of the
department responsible for acquisition may waive this restriction on a
case-by-case basis, by certifying to the House and Senate Committees on
Appropriations that—
(a) Adequate domestic supplies
are not available to meet DoD requirements on a timely basis; and
(b) The acquisition must
be made in order to acquire capability for national security purposes.
225.7010-4 Contract clause.
Use the clause at
252.225-7023, Restriction on Acquisition of Vessel Propellers, in solicitations
and contracts that use fiscal year 2000 or 2001 funds for the acquisition of
vessels or vessel propellers, unless—
(a) An exception applies
or a waiver has been granted; or
(b) The vessels being
acquired do not contain vessel propellers.
225.7011 Restriction on carbon,
alloy, and armor steel plate.
225.7011-1 Restriction.
In accordance with
Section 8111 of the Fiscal Year 1992 DoD Appropriations Act (Pub. L. 102-172)
and similar sections in subsequent DoD appropriations acts, do not acquire any
of the following types of carbon, alloy, or armor steel plate unless it is
melted and rolled in the United States or Canada:
(a) Carbon, alloy, or
armor steel plate in Federal Supply Class 9515.
(b) Carbon, alloy, or
armor steel plate described by specifications of the American Society for
Testing Materials or the American Iron and Steel Institute.
225.7011-2 Waiver.
The Secretary of the
department responsible for acquisition may waive this restriction, on a
case-by-case basis, by certifying to the House and Senate Committees on
Appropriations that—
(a) Adequate U.S. or
Canadian supplies are not available to meet DoD requirements on a timely basis;
and
(b) The acquisition must
be made in order to acquire capability for national security purposes.
225.7011-3 Contract clause.
Unless a waiver has been
granted, use the clause at 252.225-7030, Restriction on Acquisition of Carbon,
Alloy, and Armor Steel Plate, in solicitations and contracts that—
(a) Require the delivery
to the Government of carbon, alloy, or armor steel plate that will be used in a
facility owned by the Government or under the control of DoD; or
(b) Require contractors
operating in a Government-owned facility or a facility under the control of DoD
to purchase carbon, alloy, or armor steel plate.
225.7012 Restriction on
supercomputers.
225.7012-1 Restriction.
In accordance with
Section 8112 of Pub. L. 100-202, and similar sections in subsequent DoD
appropriations acts, do not purchase a supercomputer unless it is manufactured
in the United States.
225.7012-2 Waiver.
The Secretary of Defense
may waive this restriction, on a case-by-case basis, after certifying to the
Armed Services and Appropriations Committees of Congress that—
(a) Adequate U.S.
supplies are not available to meet requirements on a timely basis; and
(b) The acquisition must
be made in order to acquire capability for national security purposes.
225.7012-3 Contract clause.
Unless a waiver has been
granted, use the clause at 252.225.7011, Restriction on Acquisition of
Supercomputers, in solicitations and contracts for the acquisition of
supercomputers.
225.7013 Restrictions on
construction or repair of vessels in foreign shipyards.
In accordance with 10
U.S.C. 7309—
(a) Do not award a
contract to construct in a foreign shipyard--
(1) A vessel for
any of the armed forces; or
(2) A major
component of the hull or superstructure of a vessel for any of the armed
forces; and
(b) Do not overhaul,
repair, or maintain in a foreign shipyard, a naval vessel (or any other vessel
under the jurisdiction of the Secretary of the Navy) homeported
in the United States. This restriction
does not apply to voyage repairs.
225.7014 Restriction on overseas
military construction.
For restriction on award
of military construction contracts to be performed in the United States outlying
areas in the Pacific and on Kwajalein Atoll, or in
countries bordering the Arabian Gulf, see 236.274(a).
225.7015 Restriction on overseas
architect-engineer services.
For restriction on award
of architect-engineer contracts to be performed in Japan, in any North Atlantic
Treaty Organization member country, or in countries bordering the Arabian Gulf,
see 236.602-70.
225.7016 Restriction on research
and development.
(a) In accordance with
Pub. L. 92-570, do not use DoD appropriations to make an award to any foreign
corporation, organization, person, or entity, for research and development in
connection with any weapon system or other military equipment, if there is a
U.S. corporation, organization, person, or entity--
(1) Equally
competent; and
(2) Willing to
perform at a lower cost.
(b) This restriction
does not affect the requirements of FAR Part 35 for selection of research and
development contractors. However, when a
U.S. source and a foreign source are equally competent, award to the source
that will provide the services at the lower cost.
225.7017 Restriction on
Ballistic Missile Defense research, development, test, and evaluation.
225.7017-1 Definitions.
“Competent,” “foreign
firm,” and “U.S. firm” are defined in the provision at 252.225-7018, Notice of
Prohibition of Certain Contracts with Foreign Entities for the Conduct of
Ballistic Missile Defense Research, Development, Test, and Evaluation.
225.7017-2 Restriction.
In accordance with
Section 222 of the DoD Authorization Act for Fiscal Years 1988 and 1989 (Pub.
L. 100-180), do not use any funds appropriated to or for the use of DoD to
enter into or carry out a contract with a foreign government or firm, including
any contract awarded as a result of a broad agency announcement, if the
contract provides for the conduct of research, development, test, and
evaluation (RDT&E) in connection with the Ballistic Missile Defense
Program.
225.7017-3 Exceptions.
This restriction does
not apply—
(a) To contracts awarded
to a foreign government or firm if the contracting officer determines that--
(1) The contract
will be performed within the United States;
(2) The contract
is exclusively for RDT&E in connection with antitactical
ballistic missile systems; or
(3) The foreign
government or firm agrees to share a substantial portion of the total contract
cost. Consider the foreign share as
substantial if it is equitable with respect to the relative benefits that the
United States and the foreign parties will derive from the contract. For example, if the contract is more
beneficial to the foreign party, its share of the cost should be
correspondingly higher; or
(b) If the head of the
contracting activity certifies in writing, before contract award, that a U.S.
firm cannot competently perform a contract for RDT&E at a price equal to or
less than the price at which a foreign government or firm would perform the
RDT&E. The contracting officer or
source selection authority, as applicable, shall make a determination that will
be the basis for the certification.
(1) The
determination shall--
(i) Describe the contract effort;
(ii) State
the number of proposals solicited and received from both U.S. and foreign
firms;
(iii)
Identify the proposed awardee and the amount
of the contract;
(iv) State
that selection of the contractor was based on the evaluation factors contained
in the solicitation, or the criteria contained in the broad agency
announcement; and
(v) State
that a U.S. firm cannot competently perform the effort at a price equal to, or
less than, the price at which the foreign awardee
would perform it.
(2) When either
a broad agency announcement or program research and development announcement is
used, or when the determination is otherwise not based on direct competition
between foreign and domestic proposals, the determination shall not be merely conclusory.
(i) The determination shall specifically explain
its basis, include a description of the method used to determine the competency
of U.S. firms, and describe the cost or price analysis performed.
(ii)
Alternately, the determination may contain—
(A)
A finding, including the basis for such finding, that the proposal was
submitted solely in response to the terms of a broad agency announcement,
program research and development announcement, or other solicitation document
without any technical guidance from the program office; and
(B)
A finding, including the basis for such finding, that disclosure of the
information in the proposal for the purpose of conducting a competitive
acquisition is prohibited.
(3) Within 30
days after contract award, forward a copy of the certification and supporting
documentation to the Missile Defense Agency, ATTN: MDA/DRI, 7100 Defense Pentagon, Washington,
DC 20301-7100.
225.7017-4 Solicitation
provision.
Unless foreign
participation is otherwise excluded, use the provision at 252.225-7018, Notice
of Prohibition of Certain Contracts With Foreign Entities for the Conduct of
Ballistic Missile Defense Research, Development, Test, and Evaluation, in
competitively negotiated solicitations for RDT&E in connection with the
Ballistic Missile Defense Program.