00-13822. Federal Acquisition Regulation; Trade Agreements Thresholds

AGENCIES:

Department of Defense (DoD), General Services Administration (GSA), and National Aeronautics and Space Administration (NASA).

ACTION:

Final rule.

SUMMARY:

The Civilian Agency Acquisition Council and the Defense Acquisition Regulations Council (Councils) have agreed on a final rule amending the Federal Acquisition Regulation (FAR) to implement new dollar thresholds for application of the Trade Agreements Act (TAA) and North American Free Trade Agreement (NAFTA), as published by the U.S. Trade Representative in the Federal Register at 65 FR 17332, March 31, 2000.

DATES:

Effective Date: June 6, 2000.

Applicability Date: The FAR, as amended by this rule, is applicable to solicitations issued on or after June 6, 2000.

FOR FURTHER INFORMATION CONTACT:

The FAR Secretariat, Room 4035, GS Building, Washington, DC, 20405, [phone], for information pertaining to status or publication schedules. For clarification of content, contact Mr. Paul Linfield, Procurement Analyst, at [phone]. Please cite FAC 97-18, FAR case 2000-004.

SUPPLEMENTARY INFORMATION:

 

A. Background

This final rule amends FAR Subparts 25.2, 25.4, 25.6, and 25.11 to implement new dollar thresholds for application of the Trade Agreements Act (TAA) and North American Free Trade Agreement (NAFTA), as published by the U.S. Trade Representative in the Federal Register at 65 FR 17332, March 31, 2000.

The rule also amends the clauses at FAR 52.225-11, Buy American Act—Balance of Payments Program—Construction Materials under Trade Agreements, and 52.225-12, Notice of Buy American Act—Balance of Payments Program Requirements— Construction Materials under Trade Agreements. This rule revises Alternate I to FAR 52.225-11, because the threshold for NAFTA construction is now higher than the threshold for TAA construction, and adds the corresponding alternate to 52.225-12.

This rule was not subject to Office of Management and Budget review under Section 6(b) of Executive Order 12866, Regulatory Planning and Review, dated September 30, 1993. This rule is not a major rule under 5 U.S.C. 804.

B. Regulatory Flexibility Act

The final rule does not constitute a significant FAR revision within the meaning of FAR 1.501 and Public Law 98-577, and publication for public comments is not required. However, the Councils will consider comments from small entities concerning the affected FAR subparts 25 and 52 in accordance with 5 U.S.C. 610. Interested parties must submit such comments separately and should cite 5 U.S.C. 601, et seq. (FAC 97-18, FAR case 2000-004), in correspondence.

C. Paperwork Reduction Act

The Paperwork Reduction Act applies. However, the Councils' amendments to the FAR do not change information collection requirements previously approved by the Office of Management and Budget under 44 U.S.C. 3501, et seq. The approved OMB clearances for the affected clauses are 9000-0022, 9000-0023, 9000-0024, 9000-0025, 9000-0130, and 9000-0141.

List of Subjects in 48 CFR Parts 25 and 52

• Government procurement

Dated: May 26, 2000.

Edward C. Loeb,

Director, Federal Acquisition Policy Division.

Therefore, DoD, GSA, and NASA amend 48 CFR parts 25 and 52 as set forth below:

1. The authority citation for 48 CFR parts 25 and 52 continues to read as follows:

Authority: 40 U.S.C. 486(c); 10 U.S.C. chapter 137; and 42 U.S.C. 2473(c).

PART 25—FOREIGN ACQUISITION

2. In section 25.202, revise paragraph (c) to read as follows:

25.202

Exceptions.

* * * * *

(c) Acquisitions under trade agreements. For construction contracts with an estimated acquisition value of $6,806,000 or more, see 25.403. If the acquisition value is $7,068,419 or more, also see 25.405.

3. In section 25.403, revise paragraph (b)(1) to read as follows:

25.403

Trade Agreements Act.

* * * * *

(b) Thresholds. (1) Except as provided in 25.401, the Trade Agreements Act applies to an acquisition for supplies or services if the estimated value of the acquisition is $177,000 or more; the Trade Agreements Act applies to an acquisition for construction if the estimated value of the acquisition is $6,806,000 or more. These dollar thresholds are subject to revision by the U.S. Trade Representative approximately every 2 years (see Executive Order 12260).

* * * * *

25.405

[Amended]

4. Amend section 25.405 as follows:

a. In paragraph (a) remove “$53,150” and add “$54,372” in its place;

b. In paragraph (b) remove “$6,909,500” and add “$7,068,419” in its place; and

c. In paragraph (c) remove “$53,150” and “$6,909,500” and add in their places “$54,372” and “$7,068,419”, respectively.

25.601

[Amended]

5. Amend paragraph (a) of section 25.601 as follows:

a. In paragraph (a)(1) remove “$186,000” and add “$177,000” in its place;

b. In paragraph (a)(2) remove “$7,143,000” and add “$6,806,000” in its place; and

c. In paragraph (a)(3)(ii) remove “$186,000” and add “$177,000” in its place.

25.1101

[Amended]

6. Amend section 25.1101 as follows:

a. In paragraph (b)(1)(i) remove “$186,000” and add “$177,000” in its place;

b. In paragraphs (b)(1)(iii) and (b)(2)(iii) remove “$53,150” and add in their places “$54,372”; and

c. In paragraphs (c)(1) and (d) remove “$186,000” and add in their places “$177,000”.

7. Amend section 25.1102 as follows:

a. In paragraphs (a) and (c) remove “$6,909,500” and add in their places “$6,806,000”;

b. Revise paragraph (c)(3); and

c. Add paragraph (d)(3) to read as follows:

25.1102

Acquisition of construction.

* * * * *

(c) * * *

(3) For acquisitions valued at $6,806,000 or more, but less than $7,068,419, use the clause with its Alternate I.

* * * * *

(d) * * *

(3) For acquisitions valued at $6,806,000 or more, but less than $7,068,419, use the clause with its Alternate II.

25.1103

[Amended]

8. Amend section 25.1103 in paragraphs (c)(1)(i) and (c)(1)(ii)(B) by removing “$186,000” and adding “$177,000” in their places.

PART 52—SOLICITATION PROVISIONS AND CONTRACT CLAUSES

9. In section 52.225-11, in the introductory paragraph remove “25.1102(c)(1)” and add “25.1102(c)” in its place; and revise Alternate I to read as follows:

52.225-11

Buy American Act—Balance of Payments Program—Construction Materials under Trade Agreements.

* * * * *

Alternate I (June 2000). As prescribed in 25.1102(c)(3), delete the definitions of “North American Free Trade Agreement country” and “North American Free Trade Agreement country construction material” from the definitions in paragraph (a) of the basic clause and substitute the following paragraphs (b)(1) and (b)(2) for paragraphs (b)(1) and (b)(2) of the basic clause:

(b) Construction materials. (1) This clause implements the Buy American Act (41 U.S.C. 10a-10d) and the Balance of Payments Program by providing a preference for domestic construction material. In addition, the Contracting Officer has determined that the Trade Agreements Act applies to this acquisition. Therefore, the Buy American Act and Balance of Payments Program restrictions are waived for designated country construction materials.

(2) The Contractor shall use only domestic or designated country construction material in performing this contract, except as provided in paragraphs (b)(3) and (b)(4) of this clause.

10. In section 52.225-12, add Alternate II to read as follows:

52.225-12

Notice of Buy American Act/Balance of Payments Program Requirement—Construction Materials under Trade Agreements.

* * * * *

Alternate II (June 2000). As prescribed in 25.1102(d)(3), substitute the following paragraphs (a) and (d) for paragraphs (a) and (d) of the basic provision:

(a) Definitions. “Construction material,” “designated country construction material,” “domestic construction material,” and “foreign construction material,” as used in this provision, are defined in the clause of this solicitation entitled “Buy American Act—Balance of Payments Program—Construction Materials under Trade Agreements” (Federal Acquisition Regulation (FAR) clause 52.225-11).

(d) Alternate offers. (1) When an offer includes foreign construction material, other than designated country construction material, that is not listed by the Government in this solicitation in paragraph (b)(3) of FAR clause 52.225-11, the offeror also may submit an alternate offer based on use of equivalent domestic or designated country construction material.

(2) If an alternate offer is submitted, the offeror shall submit a separate Standard Form 1442 for the alternate offer, and a separate price comparison table prepared in accordance with paragraphs (c) and (d) of FAR clause 52.225-11 for the offer that is based on the use of any foreign construction material for which the Government has not yet determined an exception applies.

(3) If the Government determines that a particular exception requested in accordance with paragraph (c) of FAR clause 52.225-11 does not apply, the Government will evaluate only those offers based on use of the equivalent domestic or designated country construction material, and the offeror shall be required to furnish such domestic or designated country construction material. An offer based on use of the foreign construction material for which an exception was requested—

(i) Will be rejected as nonresponsive if this acquisition is conducted by sealed bidding; or

(ii) May be accepted if revised during negotiations.