Buy American Act Free Trade Agreements - PDF

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					                                                                                            Tuesday,
                                                                                            December 28, 2004




                                                                                            Part III

                                                                                            Department of Defense
                                                                                            General Services
                                                                                            Administration
                                                                                            National Aeronautics and
                                                                                            Space Administration
                                                                                            48 CFR Chapter 1, Parts 5, 6, et al.
                                                                                            Federal Acquisition Circular 2001–27;
                                                                                            Introduction, Free Trade Agreements—
                                                                                            Australia and Morocco; Small Entity
                                                                                            Compliance Guide; Final Rules




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      77870               Federal Register / Vol. 69, No. 248 / Tuesday, December 28, 2004 / Rules and Regulations

      DEPARTMENT OF DEFENSE                                           and National Aeronautics and Space                             via the Internet at http://
                                                                      Administration (NASA).                                         www.acqnet.gov/far.
      GENERAL SERVICES                                                                                                               DATES: For effective date and comment
                                                                      ACTION: Summary presentation of
      ADMINISTRATION                                                                                                                 date, see separate document which
                                                                      interim rule.
                                                                                                                                     follows.
      NATIONAL AERONAUTICS AND
                                                                      SUMMARY: This document summarizes                              FOR FURTHER INFORMATION CONTACT:      The
      SPACE ADMINISTRATION
                                                                      the Federal Acquisition Regulation                             FAR Secretariat, at (202) 501–4755, for
                                                                      (FAR) rule agreed to by the Civilian                           information pertaining to status or
      48 CFR Chapter 1                                                Agency Acquisition Council and the                             publication schedules. For clarification
                                                                      Defense Acquisition Regulations                                of content, contact the analyst whose
      Federal Acquisition Circular 2001–27;
                                                                      Council in this Federal Acquisition                            name appears in the table below in
      Introduction
                                                                      Circular (FAC) 2001–27. A companion                            relation to the FAR case. Please cite
                                                                      document, the Small Entity Compliance                          FAC 2001–27, FAR case 2004–027.
      AGENCIES: Department of Defense (DoD),
                                                                      Guide (SECG), follows this FAC. The                            Interested parties may also visit our
      General Services Administration (GSA),
                                                                      FAC, including the SECG, is available                          Web site at http://www.acqnet.gov/far.

       Item                                                                       Subject                                                                       FAR case   Analyst

      I .......   Free Trade Agreements—Australia and Morocco ...............................................................................................   2004–027   Davis.



      SUPPLEMENTARY INFORMATION:      A                               the Secretary of Defense, the                                  and National Aeronautics and Space
      summary of the FAR rule follows. For                            Administrator of General Services, and                         Administration (NASA).
      the actual revisions and/or amendments                          the Administrator for the National                             ACTION: Interim rule with request for
      to this FAR case, refer to the specific                         Aeronautics and Space Administration.                          comments.
      item number and subject set forth in the                          Unless otherwise specified, all
      document following this item summary.                           Federal Acquisition Regulation (FAR)                           SUMMARY: The Civilian Agency
         FAC 2001–27 amends the FAR as                                and other directive material contained                         Acquisition Council and the Defense
      specified below:                                                in FAC 2001–27 is effective January 1,                         Acquisition Regulations Council
      Free Trade Agreements—Australia and                             2005.                                                          (Councils) have agreed on an interim
      Morocco (FAR case 2004–027)                                       Dated: December 21, 2004.                                    rule amending the Federal Acquisition
                                                                      Lt. Col. Vincent Feck,                                         Regulation (FAR) to implement new
        This interim rule allows contracting                                                                                         Free Trade Agreements with Australia
      officers to purchase the products of                            Deputy Director (Operations), Defense
                                                                      Procurement and Acquisition Policy.                            and Morocco as approved by Congress
      Australia and Morocco without                                                                                                  (Public Laws 108–286 and 108–302).
      application of the Buy American Act if                            Dated: December 22, 2004.                                    These Free Trade Agreements are
      the acquisition is subject to the Free                          David A. Drabkin,                                              scheduled to go into effect January 1,
      Trade Agreements. The U.S. Trade                                                                                               2005.
                                                                      Senior Procurement Executive, General
      Representative negotiated Free Trade                            Services Administration.                                          The interim rule also establishes a
      Agreements with Australia and
                                                                                                                                     table of services excluded from the
      Morocco, which go into effect January 1,                          Dated: December 21, 2004.
                                                                                                                                     coverage of the various trade
      2005, according to Public Laws 108–286                          Scott Thompson,
                                                                                                                                     agreements, corrects the threshold for
      and 108–302. These Agreements join the                          Acting Deputy Chief Acquisition Officer,                       Canadian services, revises the list of
      North American Free Trade Agreement                             National Aeronautics and Space
                                                                                                                                     Least Developed Countries, revises FAR
      (NAFTA) and the Chile and Singapore                             Administration.
      Free Trade Agreements which are                                                                                                terminology relating to international
                                                                      [FR Doc. 04–28399 Filed 12–27–04; 8:45 am]
      already in the FAR. The threshold for                                                                                          trade agreements and the Trade
                                                                      BILLING CODE 6820–EP–P
      applicability of the Australian Free                                                                                           Agreements Act (TAA), and revises the
      Trade Agreement is $58,550 (the same                                                                                           FAR clauses that implement application
      as other Free Trade Agreements to date),                                                                                       of the Buy American Act (41 U.S.C. 10a,
                                                                      DEPARTMENT OF DEFENSE
      but the threshold for applicability of the                                                                                     10b, 10b–1, and 10c) and trade
      Morocco Free Trade Agreement is                                 GENERAL SERVICES                                               agreements to construction material.
      $175,000. Because of the short statutory                        ADMINISTRATION                                                 DATES: Effective Date: January 1, 2005.
      time frame, this is an interim rule. Also                                                                                         Comment Date: Interested parties
      in this rule are changes requested by the                       NATIONAL AERONAUTICS AND                                       should submit comments to the FAR
      U.S. Trade Representative, in the list of                       SPACE ADMINISTRATION                                           Secretariat at the address shown below
      Least Developed Countries, and changes                                                                                         on or before February 28, 2005, to be
      in terminology on how the FAR uses the                          48 CFR Parts 5, 6, 9, 12, 14, 17, 22, 25,                      considered in the formulation of a final
      terms ‘‘designated country’’ and ‘‘Trade                        and 52                                                         rule.
      Agreements Act.’’ Some technical                                [FAC 2001–27; FAR Case 2004–027]                               ADDRESSES: Submit comments
      changes are also included.                                                                                                     identified by FAC 2001–27, FAR case
                                                                      RIN 9000–AK09                                                  2004–027, by any of the following
        Dated: December 22, 2004.
      Laura Auletta,                                                                                                                 methods:
                                                                      Federal Acquisition Regulation; Free
      Director, Contract Policy Division.                             Trade Agreements—Australia and                                    • Federal eRulemaking Portal: http://
                                                                      Morocco                                                        www.regulations.gov. Follow the
      Federal Acquisition Circular                                                                                                   instructions for submitting comments.
        Federal Acquisition Circular (FAC)                            AGENCIES: Department of Defense (DoD),                            • Agency Web site: http://
      2001–27 is issued under the authority of                        General Services Administration (GSA),                         www.acqnet.gov/far/ProposedRules/


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                      Federal Register / Vol. 69, No. 248 / Tuesday, December 28, 2004 / Rules and Regulations                                        77871

      proposed.htm. Click on the FAR case                     threshold for services from Canada from               of ‘‘eligible product’’ to include
      number to submit comments.                              $25,000 to $58,550 (FAR 25.402(b)).                   ‘‘construction material’’ and modifies
        • E-mail: farcase.2004–027@gsa.gov.                      • Terminology.                                     the construction clauses that implement
      Include FAC 2001–27, FAR case 2004–                        1. The TAA and the WTO Agreement                   the trade agreements to extend
      027, in the subject line of the message.                on Government Procurement. The FAR                    nondiscriminatory treatment to all
        • Fax: (202) 501–4067.                                currently equates the term ‘‘Trade                    designated country construction
        • Mail: General Services                              Agreements Act’’ with the Agreement                   material, including Caribbean Basin
      Administration, Regulatory Secretariat                  on Government Procurement (meaning                    country construction material.
      (VIR), 1800 F Street, NW., Room 4035,                   the World Trade Organization                             2. Cost of components. The rule
      ATTN: Laurieann Duarte, Washington,                     Government Procurement Agreement                      makes a technical correction to the
      DC 20405.                                               (‘‘WTO GPA’’) (see FAR 25.400(a)(1)).                 definition of ‘‘cost of components’’ as
        Instructions: Please submit comments                  The Trade Agreements Act (19 U.S.C.                   contained in the clauses that apply Buy
      only and cite FAC 2001–27, FAR case                     2501 et seq.) (TAA) is not synonymous                 American Act and trade agreements to
      2004–027, in all correspondence related                 with the WTO GPA. The TAA provides                    construction material (52.225–9, Buy
      to this case. All comments received will                authority for the President (designated               American Act—Construction Materials,
      be posted without change to http://                     by Executive Order 12260 of December                  and 52.225–11, Buy American Act—
      www.acqnet.gov/far/ProposedRules/                       31, 1980 to the United States Trade                   Construction Materials under Trade
      proposed.htm, including any personal                    Representative (USTR)) to waive                       Agreements). When applied to
      information provided.                                   discriminatory purchasing requirements                components of construction material,
      FOR FURTHER INFORMATION CONTACT: The                    (such as the Buy American Act),                       the definition must be modified in the
      FAR Secretariat at (202) 501–4755, for                  designate eligible countries (including               second paragraph to delete the term
      information pertaining to status or                     least developed countries), and bar                   ‘‘end product’’ and replace it with the
      publication schedules. For clarification                procurement from non-designated                       term ‘‘construction material.’’ Note that
      of content, contact Ms. Cecelia Davis,                  countries. It does not contain thresholds             the definition of the term ‘‘component’’
      Procurement Analyst, at (202) 219–                      or the terms of the various trade                     in these clauses has already been so
      0202. Please cite FAC 2001–27, FAR                      agreements. The rule substitutes the                  modified.
      case 2004–027.                                          term ‘‘World Trade Organization                          • Revising the list of Least Developed
      SUPPLEMENTARY INFORMATION:                              Government Procurement Agreement’’                    Countries. The U.S. Trade
                                                              in all places in the FAR where the term               Representative has requested that the
      A. Background                                           ‘‘Trade Agreements Act’’ is currently                 list of Least Developed Countries (LDC)
         New Free Trade Agreements. This                      used to mean the WTO GPA.                             be revised. These countries are included
      rule amends FAR Part 25 and the                            2. ‘‘Designated country,’’ ‘‘WTO GPA               within the definition of ‘‘designated
      clauses at 52.212–3, Offeror                            country,’’ and ‘‘least developed                      country’’. This list has been approved
      Representations and Certifications—                     country.’’ The list of designated                     by the Trade Policy Staff Committee.
      Commercial Items, 52.212–5, Contract                    countries at FAR 25.001 is currently a                The TAA allows USTR (pursuant to
      Terms and Conditions Required to                        combination of WTO members subject                    authority delegated from the President
      Implement Statutes or Executive                         to the WTO GPA (WTO GPA countries)                    in Executive Order 12260) to waive the
      Orders— Commercial Items, 52.225–3,                     and certain least developed countries                 purchasing prohibition and
      Buy American Act—Free Trade                             for which the USTR has waived                         discriminatory purchasing requirements
      Agreements—Israeli Trade Act, 52.225–                   discriminatory purchasing                             for LDCs. As defined in 19 U.S.C. 2518,
      4, Buy American Act—Free Trade                          requirements, in accordance with                      a ‘‘least developed country’’ is ‘‘any
      Agreements—Israeli Trade Act                            section 301 of the TAA. The rule                      country on the United Nations General
      Certificate, 52.225–5, Trade Agreements,                redefines ‘‘designated country’’ to                   Assembly list of least developed
      52.225–6, Trade Agreements Certificate,                 include WTO GPA countries, Free Trade                 countries.’’ The countries designated as
      52.225–9, Buy American Act—                             Agreement countries, least developed                  eligible countries under the TAA are
      Construction Materials, and 52.225–11,                  countries, and Caribbean Basin                        listed in the FAR to inform contracting
      Buy American Act—Construction                           countries. Free Trade Agreement                       officers of countries that are eligible to
      Materials under Trade Agreements, and                   countries and Caribbean Basin countries               participate in Federal Government
      52.225–12, Notice of Buy American Act                   are now also designated countries. Each               procurement. Botswana is no longer
      Requirement—Construction Materials                      of these terms will retain a separate                 designated as an LDC by the United
      under Trade Agreements, to implement                    definition, because in some instances,                Nations. Further, the following
      new Free Trade Agreements with                          the regulation does not apply to all                  countries have been designated as LDCs
      Australia and Morocco, as approved by                   designated countries, but only some of                by the United Nations, but are not
      Congress (Public Laws 108–286 and                       the specific subsets.                                 currently included in the FAR list:
      108–302). The Free Trade Agreements                        • FAR clauses that implement                       Afghanistan; Angola; Burma (Myanmar);
      with Australia and Morocco waive the                    application of the Buy American Act                   Cambodia; Democratic Republic of
      applicability of the Buy American Act                   and trade agreements to construction                  Congo; Eritrea; Ethiopia; Laos; Liberia;
      for some foreign supplies and                           material.                                             Madagascar; Mauritania; Senegal;
      construction materials from Australia                      1. Caribbean Basin construction                    Solomon Islands; Sudan; East Timor;
      and Morocco, and specify procurement                    material. The Federal Register notices                and Zambia. Therefore, the USTR has
      procedures designed to ensure fairness,                 issued by the USTR under the Caribbean                removed Botswana and included the
      applicable to the acquisition of supplies               Basin Trade Initiative state that                     additional LDCs, with the exceptions of
      and services.                                           ‘‘products’’ of the listed Caribbean Basin            Burma (Myanmar), Liberia and Sudan,
         Other related revisions.                             countries shall continue to be treated as             which are subject to United States
         • Table of excluded services. The rule               ‘‘eligible products’’ (unless excluded                economic sanctions.
      includes a table of excluded services to                from duty-free treatment under 19                        This is not a significant regulatory
      improve clarity.                                        U.S.C. 2703(b)). To be consistent with                action and, therefore, was not subject to
         • NAFTA threshold for Canadian                       the statutory definition at 19 U.S.C.                 review under Section 6(b) of Executive
      services. The rule corrects the NAFTA                   2518(4), this rule modifies the definition            Order 12866, Regulatory Planning and


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      77872           Federal Register / Vol. 69, No. 248 / Tuesday, December 28, 2004 / Rules and Regulations

      Review, dated September 30, 1993. This                  List of Subjects in 48 CFR Parts 5, 6, 9,             PART 9—CONTRACTOR
      rule is not a major rule under 5 U.S.C.                 12, 14, 17, 22, 25, and 52                            QUALIFICATIONS
      804.                                                      Government procurement.
                                                                                                                    I 6. Amend section 9.205 by revising
      B. Regulatory Flexibility Act                             Dated: December 22, 2004.
                                                                                                                    paragraph (b) to read as follows:
                                                              Laura Auletta,
         The interim rule is not expected to                                                                        9.205 Opportunity for qualification before
                                                              Director, Contract Policy Division.
      have a significant economic impact on                                                                         award.
      a substantial number of small entities                  I  Therefore, DoD, GSA, and NASA
                                                              amend 48 CFR parts 5, 6, 9, 12, 14, 17,               *     *    *     *     *
      within the meaning of the Regulatory                                                                            (b) The activity responsible for
      Flexibility Act, 5 U.S.C. 601, et seq.                  22, 25, and 52 as set forth below:
                                                              I 1. The authority citation for 48 CFR                establishing a qualification requirement
      Although the rule opens up Government                                                                         must keep any list maintained of those
                                                              parts 5, 6, 9, 12, 14, 17, 22, 25, and 52
      procurement to the products of                          is revised to read as follows:                        already qualified open for inclusion of
      Australia and Morocco and Caribbean                                                                           additional products, manufacturers, or
      Basin country construction material, the                  Authority: 40 U.S.C. 121(c); 10 U.S.C.
                                                              chapter 137; and 42 U.S.C. 2473(c).                   other potential sources.
      Councils do not anticipate any
      significant economic impact on U.S.                     PART 5—PUBLICIZING CONTRACT                           PART 12—ACQUISITION OF
      small businesses. The Department of                     ACTIONS                                               COMMERCIAL ITEMS
      Defense only applies the trade
                                                                                                                    12.205    [Amended]
      agreements to the non-defense items                     I 2. Amend section 5.202 by revising
      listed at DFARS 225.401–70, and                         paragraph (a)(12) to read as follows:                 I 7. Amend section 12.205 by removing
      acquisitions that are set aside for small                                                                     from paragraph (c) ‘‘subject to the Trade
                                                              5.202    Exceptions.                                  Agreements Act’’ and adding ‘‘covered
      businesses are exempt. Therefore, an
      Initial Regulatory Flexibility Analysis                 *      *    *     *     *                             by the World Trade Organization
                                                                 (a) * * *                                          Government Procurement Agreement’’
      has not been performed. The Councils
                                                                 (12) The proposed contract action is               in its place.
      will consider comments from small
                                                              by a Defense agency and the proposed
      entities concerning the affected FAR                    contract action will be made and                      PART 14—SEALED BIDDING
      Parts 5, 6, 9, 12, 14, 17, 22, 25, and 52               performed outside the United States and
      in accordance with 5 U.S.C. 610.                        its outlying areas, and only local sources            I 8. Amend section 14.409–1 by revising
      Interested parties must submit such                     will be solicited. This exception does                the introductory text of paragraph (a)(2)
      comments separately and should cite 5                   not apply to proposed contract actions                to read as follows:
      U.S.C 601, et seq. (FAC 2001–27, FAR                    covered by the World Trade
      case 2004–027), in correspondence.                      Organization Government Procurement                   14.409–1    Award of unclassified contracts.

      C. Paperwork Reduction Act                              Agreement or a Free Trade Agreement       (a)(1) * * *
                                                              (see Subpart 25.4);                       (2) For acquisitions covered by the
         The Paperwork Reduction Act does                     *      *    *     *     *               World Trade Organization Government
      apply; however, these changes to the                                                            Procurement Agreement or a Free Trade
      FAR do not impose additional                            5.203 [Amended]                         Agreement (see 25.408(a)(5)), agencies
      information collection requirements to                  I 3. Amend section 5.203 in the first   must include in notices given
      the provisions at FAR 52.212–3, 52.225–                 sentence of paragraph (h) by removing   unsuccessful bidders from World Trade
      4, 52.225–6, and 52.225–11 regarding                    ‘‘subject to the Trade Agreements Act’’ Organization Government Procurement
      the paperwork burdens previously                        and adding ‘‘covered by the World Trade Agreement or Free Trade Agreement
      approved under OMB Control Numbers                      Organization Government Procurement     countries—
      9000–0130, 9000–0025, and 9000–0141.                    Agreement’’ in its place.               *     *     *     *    *
      The impact is negligible.                               I 4. Amend section 5.301 by revising
                                                              paragraph (a)(1); and removing from     PART 17—SPECIAL CONTRACTING
      D. Determination To Issue an Interim                                                            METHODS
                                                              paragraph (c) ‘‘subject to the Trade
      Rule
                                                              Agreements Act,’’ and adding ‘‘covered
                                                              by the World Trade Organization         I 9. Amend section 17.203 by revising
        A determination has been made under
      the authority of the Secretary of Defense               Government Procurement Agreement or paragraph (h) to read as follows:
      (DoD), the Administrator of General                     a Free Trade Agreement,’’ in its place. 17.203 Solicitations.
      Services (GSA), and the Administrator                   The revised text reads as follows:
                                                                                                      *     *     *     *    *
      of the National Aeronautics and Space                   5.301 General.                            (h) Include the value of options in
      Administration (NASA) that urgent and                      (a) * * *                            determining if the acquisition will
      compelling reasons exist to promulgate                     (1) Covered by the World Trade       exceed the World Trade Organization
      this interim rule without prior                         Organization Government Procurement     Government Procurement Agreement or
      opportunity for public comment. This                    Agreement or a Free Trade Agreement     Free Trade Agreement thresholds.
      action is necessary because the Free                    (see Subpart 25.4); or
      Trade Agreements with Australia and                     *      *    *     *    *                PART 22—APPLICATION OF LABOR
      Morocco, as approved by Congress                                                                LAWS TO GOVERNMENT
      (Public Laws 108–286 and 108–302), are                  PART 6—COMPETITION                      ACQUISITIONS
      scheduled to go into effect January 1,                  REQUIREMENTS                            22.1503 [Amended]
      2005. However, pursuant to Public Law
      98–577 and FAR 1.501, the Councils                      6.303–1     [Amended]                                 I 10. Amend section 22.1503 by
      will consider public comments received                  I 5. Amend section 6.303–1 by removing                removing from the end of paragraph
      in response to this interim rule in the                 paragraph (d) and redesignating                       (b)(4) ‘‘(see 25.403(b))’’ and adding ‘‘(see
      formation of the final rule.                            paragraph (e) as paragraph (d).                       25.402(b))’’ in its place.


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                      Federal Register / Vol. 69, No. 248 / Tuesday, December 28, 2004 / Rules and Regulations                                        77873

      PART 25—FOREIGN ACQUISITION                             service that, due to applicability of a               from another country, has been
                                                              trade agreement to a particular                       substantially transformed in a WTO
      I  11. Amend section 25.003 by revising                 acquisition, is not subject to                        GPA country into a new and different
      the definitions ‘‘Designated country’’,                 discriminatory treatment.                             article of commerce with a name,
      ‘‘Designated country end product’’,                     *      *     *     *     *                            character, or use distinct from that of
      ‘‘Eligible product’’, and ‘‘Free Trade                     Free Trade Agreement country’’                     the article or articles from which it was
      Agreement country’’; and adding the                     means Australia, Canada, Chile, Mexico,               transformed. The term refers to a
      definitions ‘‘Least developed country’’,                Morocco, or Singapore.                                product offered for purchase under a
      ‘‘Least developed country end product’’,                                                                      supply contract, but for purposes of
                                                              *      *     *     *     *
      ‘‘World Trade Organization Government                                                                         calculating the value of the end product
                                                                 Least developed country means any of
      Procurement Agreement (WTO GPA)                                                                               includes services (except transportation
                                                              the following countries: Afghanistan,
      country’’, and ‘‘WTO GPA country end                                                                          services) incidental to the article,
                                                              Angola, Bangladesh, Benin, Bhutan,
      product’’ to read as follows:                                                                                 provided that the value of those
                                                              Burkina Faso, Burundi, Cambodia, Cape
      25.003    Definitions.                                  Verde, Central African Republic, Chad,                incidental services does not exceed that
                                                              Comoros, Democratic Republic of                       of the article itself.
      *      *     *    *     *
         Designated country means any of the                  Congo, Djibouti, East Timor, Equatorial               25.204    [Amended]
      following countries:                                    Guinea, Eritrea, Ethiopia, Gambia,
         (1) A World Trade Organization                       Guinea, Guinea-Bissau, Haiti, Kiribati,               I  12. Amend section 25.204 by removing
      Government Procurement Agreement                        Laos, Lesotho, Madagascar, Malawi,                    from paragraph (a) ‘‘excepted under the
      country (Aruba, Austria, Belgium,                       Maldives, Mali, Mauritania,                           Trade Agreements Act or’’ and adding
      Canada, Cyprus, Czech Republic,                         Mozambique, Nepal, Niger, Rwanda,                     ‘‘covered by the WTO GPA or a’’ in its
      Denmark, Estonia, Finland, France,                      Samoa, Sao Tome and Principe,                         place.
      Germany, Greece, Hong Kong, Hungary,                    Senegal, Sierra Leone, Solomon Islands,               I 13. Revise section 25.400 to read as
      Iceland, Ireland, Israel, Italy, Japan,                 Somalia, Tanzania, Togo, Tuvalu,                      follows:
      Korea (Republic of), Latvia,                            Uganda, Vanuatu, Yemen, or Zambia.
                                                                                                                    25.400    Scope of subpart.
      Liechtenstein, Lithuania, Luxembourg,                      Least developed country end product
      Malta, Netherlands, Norway, Poland,                     means an article that—                                  (a) This subpart provides policies and
      Portugal, Singapore, Slovak Republic,                      (1) Is wholly the growth, product, or              procedures applicable to acquisitions
      Slovenia, Spain, Sweden, Switzerland,                   manufacture of a least developed                      that are covered by—
      or United Kingdom);                                     country; or                                             (1) The World Trade Organization
         (2) A Free Trade Agreement country                      (2) In the case of an article that                 Government Procurement Agreement
      (Australia, Canada, Chile, Mexico,                      consists in whole or in part of materials             (WTO GPA), as approved by Congress in
      Morocco, or Singapore);                                 from another country, has been                        the Uruguay Round Agreements Act
         (3) A least developed country                        substantially transformed in a least                  (Pub. L. 103–465);
      (Afghanistan, Angola, Bangladesh,                       developed country into a new and                        (2) Free Trade Agreements (FTA),
      Benin, Bhutan, Burkina Faso, Burundi,                   different article of commerce with a                  consisting of—
      Cambodia, Cape Verde, Central African                   name, character, or use distinct from                   (i) NAFTA (the North American Free
      Republic, Chad, Comoros, Democratic                     that of the article or articles from which            Trade Agreement, as approved by
      Republic of Congo, Djibouti, East Timor,                it was transformed. The term refers to a              Congress in the North American Free
      Equatorial Guinea, Eritrea, Ethiopia,                   product offered for purchase under a                  Trade Agreement Implementation Act of
      Gambia, Guinea, Guinea-Bissau, Haiti,                   supply contract, but for purposes of                  1993 (19 U.S.C. 3301 note));
      Kiribati, Laos, Lesotho, Madagascar,                    calculating the value of the end product,               (ii) Chile FTA (the United States-Chile
      Malawi, Maldives, Mali, Mauritania,                     includes services (except transportation              Free Trade Agreement, as approved by
      Mozambique, Nepal, Niger, Rwanda,                       services) incidental to the article,                  Congress in the United States-Chile Free
      Samoa, Sao Tome and Principe,                           provided that the value of those                      Trade Agreement Implementation Act
      Senegal, Sierra Leone, Solomon Islands,                 incidental services does not exceed that              (Pub. L. 108–77));
      Somalia, Tanzania, Togo, Tuvalu,                        of the article itself.                                  (iii) Singapore FTA (the United
      Uganda, Vanuatu, Yemen, or Zambia);                     *      *     *     *     *                            States-Singapore Free Trade Agreement,
      or                                                         World Trade Organization                           as approved by Congress in the United
         (4) A Caribbean Basin country                        Government Procurement Agreement                      States-Singapore Free Trade Agreement
      (Antigua and Barbuda, Aruba, Bahamas,                   (WTO GPA) country means any of the                    Implementation Act (Pub. L. 108–78));
      Barbados, Belize, British Virgin Islands,               following countries: Aruba, Austria,                    (iv) Australia FTA (the United
      Costa Rica, Dominica, Dominican                         Belgium, Canada, Cyprus, Czech                        States—Australia Free Trade
      Republic, El Salvador, Grenada,                         Republic, Denmark, Estonia, Finland,                  Agreement, as approved by Congress in
      Guatemala, Guyana, Haiti, Honduras,                     France, Germany, Greece, Hong Kong,                   the United States— Australia Free Trade
      Jamaica, Montserrat, Netherlands                        Hungary, Iceland, Ireland, Israel, Italy,             Agreement Implementation Act (Pub. L.
      Antilles, Nicaragua, St. Kitts and Nevis,               Japan, Korea (Republic of), Latvia,                   108–286); and
      St. Lucia, St. Vincent and the                          Liechtenstein, Lithuania, Luxembourg,                   (v) Morocco FTA (The United States—
      Grenadines, or Trinidad and Tobago).                    Malta, Netherlands, Norway, Poland,                   Morocco Free Trade Agreement, as
         Designated country end product                       Portugal, Singapore, Slovak Republic,                 approved by Congress in the United
      means a WTO GPA country end                             Slovenia, Spain, Sweden, Switzerland,                 States— Morocco Free Trade Agreement
      product, an FTA country end product,                    or United Kingdom.                                    Implementation Act (Pub. L. 108–302);
      a least developed country end product,                     WTO GPA country end product means                    (3) The least developed country
      or a Caribbean Basin country end                        an article that—                                      designation made by the U.S. Trade
      product.                                                   (1) Is wholly the growth, product, or              Representative, pursuant to the Trade
      *      *     *    *     *                               manufacture of a WTO GPA country; or                  Agreements Act (19 U.S.C. 2511(b)(4)),
         Eligible product means a foreign end                    (2) In the case of an article that                 in acquisitions covered by the WTO
      product, construction material, or                      consists in whole or in part of materials             GPA;


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      77874               Federal Register / Vol. 69, No. 248 / Tuesday, December 28, 2004 / Rules and Regulations

         (4) The Caribbean Basin Trade                                        Implementation Act of 1985 (19 U.S.C.                                      paragraph (a)(5) ‘‘(but see 6.303–1(d))’’;
      Initiative (CBTI) (determination of the                                 2112 note)); or                                                            and revising paragraph (b) to read as
      U.S. Trade Representative that end                                        (6) The Agreement on Trade in Civil                                      follows:
      products or construction material                                       Aircraft (U.S. Trade Representative
                                                                              waiver of the Buy American Act for                                         25.401        Exceptions.
      granted duty-free entry from countries
      designated as beneficiaries under the                                   signatories of the Agreement on Trade                                      *     *     *    *     *
      Caribbean Basin Economic Recovery Act                                   in Civil Aircraft, as implemented in the                                     (b) In the World Trade Organization
      (19 U.S.C. 2701, et seq.), with the                                     Trade Agreements Act of 1979 (19                                           Government Procurement Agreement
      exception of Panama, must be treated as                                 U.S.C. 2513)).                                                             (WTO GPA) and each FTA, there is a
                                                                                (b) For application of the trade                                         U.S. schedule that lists services that are
      eligible products in acquisitions covered
                                                                              agreements that are unique to individual                                   excluded from that agreement in
      by the WTO GPA);
                                                                              agencies, see agency regulations.                                          acquisitions by the United States.
         (5) The Israeli Trade Act (the U.S.-                                 I 14. Amend section 25.401 by removing                                     Acquisitions of the following services
      Israel Free Trade Area Agreement, as                                    from paragraph (a)(2) ‘‘, including all                                    are excluded from coverage by the U.S.
      approved by Congress in the United                                      services purchased in support of military                                  schedule of the WTO GPA or an FTA as
      States-Israel Free Trade Area                                           forces located overseas’’; removing from                                   indicated in this table:

                                        The service
             (Federal Service Codes from the Federal Procurement Data System                                                                           NAFTA and                   Singapore                Australia and
                                                                                                                             WTO GPA
             Product/Service Code Manual are indicated in parentheses for some                                                                          Chile FTA                     FTA                   Morocco FTA
                                         services.)

      (1)   All services purchased in support of military services overseas. ...........                                            X                          X                           X                          X
      (2)   (i) Automatic data processing (ADP) telecommunications and trans-                                                       X                          X                ........................   ........................
                mission services (D304), except enhance (i.e., value-added) tele-
                communications services..
            (ii) ADP teleprocessing and timesharing services (D305), telecommuni-                                                   X                          X                ........................   ........................
                cations network management services (D316), automated news
                services, data services or other information services (D317), and
                other ADP and telecommunications services (D399).
            (iii) Basic telecommunications network services (i.e., voice telephone                                                   *                          *                         X                          X
                services, packet-switched data transmission services, circuit-
                switched data transmission services, telex services, telegraph serv-
                ices, facsimile services, and private leased circuit services, but not
                information services, as defined in 47 U.S.C. 153(20))..
      (3)   Dredging ..................................................................................................             X                           X                         X                           X
      (4)   (i) Operation and management contracts of certain Government or pri-                                                    X                ........................             X                ........................
                vately owned facilities used for Government purposes, including
                Federally Funded Research and Development Centers.
            (ii) Operation of all Department of Defense, Department of Energy, or                                                  **                          X                         **                          X
                the National Aeronautics and Space Administration facilities; and all
                Government-owned research and development facilities or Govern-
                ment-owned environmental laboratories.
      (5)   Research and development ....................................................................                           X                          X                          X                          X
      (6)   Transportation services (including launching services, but not including                                                X                          X                          X                          X
                travel agent services—V503).
      (7)   Utility services ..........................................................................................              X                         X                           X                         X
      (8)   Maintenance, repair, modification, rebuilding and installation of equip-                                      ........................             X                ........................             X
                ment related to ships (J019).
      (9)   Nonnuclear ship repair (J998) .................................................................               ........................             X                ........................             X
        *NOTE 1. Acquisitions of the services listed at (2)(iii) of this table are a subset of the excluded services at (2)(i) and (ii), and are therefore not
      covered under the WTO GPA.
        **NOTE 2. Acquisitions of the services listed at (4)(ii) of this table are a subset of the excluded services at (4)(i), and are therefore not covered
      under the WTO GPA.


      I 15. Revise section 25.402 to read as                                  least developed country. The President                                     country in which the firm providing the
      follows:                                                                has delegated this waiver authority to                                     services is established. See Subpart 25.5
                                                                              the U.S. Trade Representative. In                                          for evaluation procedures for supply
      25.402     General.                                                     acquisitions covered by the WTO GPA,                                       contracts covered by trade agreements.
        (a)(1) The Trade Agreements Act (19                                   Free Trade Agreements, or the Israeli                                        (b) The value of the acquisition is a
      U.S.C. 2501, et seq.) provides the                                      Trade Act, the USTR has waived the                                         determining factor in the applicability
      authority for the President to waive the                                Buy American Act and other                                                 of trade agreements. Most of these dollar
      Buy American Act and other                                              discriminatory provisions for eligible                                     thresholds are subject to revision by the
      discriminatory provisions for eligible                                  products. Offers of eligible products                                      U.S. Trade Representative
      products from countries that have                                       receive equal consideration with                                           approximately every 2 years. The
      signed an international trade agreement                                 domestic offers.                                                           various thresholds are summarized as
      with the United States, or that meet                                      (2) The contracting officer shall                                        follows:
      certain other criteria, such as being a                                 determine the origin of services by the




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                           Federal Register / Vol. 69, No. 248 / Tuesday, December 28, 2004 / Rules and Regulations                                                                                          77875

                                                                                                                                          Supply contract       Service contract                 Construction
                                                         Trade agreement                                                                  (equal to or ex-      (equal to or ex-               contract (equal to
                                                                                                                                             ceeding)              ceeding)                      or exceeding)

      WTO GPA ........................................................................................................................           $175,000                   $175,000                     $6,725,000
      FTAs:
           NAFTA:
                —Canada ..........................................................................................................                 25,000                        58,550                    7,611,532
                —Mexico ............................................................................................................               58,550                        58,550                    7,611,532
           Chile FTA ..................................................................................................................            58,550                        58,550                    6,725,000
           Singapore FTA .........................................................................................................                 58,550                        58,550                    6,725,000
           Australia FTA ............................................................................................................              58,550                        58,550                    6,725,000
           Morocco FTA ............................................................................................................               175,000                      175,000                     6,725,000
      Israeli Trade Act ..............................................................................................................             50,000       ............................   ............................



      I 16. Amend section 25.403 by revising                                   section 25.404 is added to read as                                  unless no offers of such end products
      the section heading and paragraphs (a),                                  follows:                                                            were received;
      (b)(1) introductory text, (b)(3), and (c)(1)                                                                                                 *     *     *     *    *
      to read as follows:                                                      25.404        Least developed countries.
                                                                                                                                                     (3) If there were no offers of U.S.-
                                                                                 For acquisitions covered by the WTO                               made or designated country end
      25.403 World Trade Organization                                          GPA, least developed country end
      Government Procurement Agreement and                                                                                                         products, make a nonavailability
                                                                               products, construction material, and                                determination (see 25.103(b)(2)) and
      Free Trade Agreements.
                                                                               services must be treated as eligible                                award on the low offer (see 25.403(c)).
         (a) Eligible products from WTO GPA                                    products.
      and FTA countries are entitled to the                                                                                                          (c) For acquisitions not covered by the
      nondiscriminatory treatment specified                                    25.405        Caribbean Basin Trade Initiative.                     WTO GPA, but subject to the Buy
      in 25.402(a)(1). The WTO GPA and                                           Under the Caribbean Basin Trade                                   American Act (an FTA or the Israeli
      FTAs specify procurement procedures                                      Initiative, the United States Trade                                 Trade Act also may apply), the
      designed to ensure fairness (see 25.408).                                Representative has determined that, for                             following applies:
         (b) Thresholds. (1) To determine                                      acquisitions covered by the WTO GPA,                                *     *     *     *    *
      whether the acquisition of products by                                   Caribbean Basin country end products,                               I 22. Amend section 25.503 by revising
      lease, rental, or lease-purchase contract                                construction material, and services must                            paragraph (a)(2) to read as follows:
      (including lease-to-ownership, or lease-                                 be treated as eligible products.
                                                                                                                                                   25.503      Group offers.
      with-option-to purchase) is covered by                                   I 19. Amend section 25.406 by revising
      the WTO GPA or an FTA, calculate the                                     the first sentence to read as follows:                                (a) * * *
      estimated acquisition value as follows:                                                                                                        (2) If the acquisition is covered by the
      *      *      *    *     *
                                                                               25.406        Israeli Trade Act.                                    WTO GPA and any part of the offer
                                                                                 Acquisitions of supplies by most                                  consists of items restricted in
         (3) If, in any 12-month period,
                                                                               agencies are covered by the Israeli Trade                           accordance with 25.403(c).
      recurring or multiple awards for the
      same type of product or products are                                     Act, if the estimated value of the                                  25.504–2 WTO GPA/Caribbean Basin
      anticipated, use the total estimated                                     acquisition is $50,000 or more but does                             Trade Initiative/FTAs.
      value of these projected awards to                                       not exceed the WTO GPA threshold for
                                                                                                                                                   *      *    *     *    *
      determine whether the WTO GPA or an                                      supplies (see 25.402(b)). * * *
                                                                                                                                                   I  23. Revise 25.504–2 section heading to
      FTA applies. Do not divide any                                           I 20. Amend section 25.408 by revising                              read as set forth above; and remove
      acquisition with the intent of reducing                                  paragraph (a) introductory text and (a)(5)                          ‘‘Trade Agreement Act applies’’ from the
      the estimated value of the acquisition                                   to read as follows:                                                 first sentence of the undesignated
      below the dollar threshold of the WTO                                                                                                        paragraph following the table in Example
                                                                               25.408        Procedures.
      GPA or an FTA.                                                                                                                               1 and adding ‘‘acquisition is covered by
         (c) Purchase restriction. (1) Under the                                 (a) If the WTO GPA or an FTA applies
                                                                                                                                                   the WTO GPA’’ in its place.
      Trade Agreements Act (19 U.S.C. 2512),                                   (see 25.401), the contracting officer
      in acquisitions covered by the WTO                                       must—                                                               25.504–3        [Amended]
      GPA, acquire only U.S.-made or                                           *     *      *    *    *                                            I 24. Amend section 25.504–3 in
      designated country end products or U.S.                                    (5) Provide unsuccessful offerors from                            paragraphs (b) and (c) by removing from
      or designated country services, unless                                   WTO GPA or FTA countries notice in                                  the first sentence of the undesignated
      offers for such end products or services                                 accordance with 14.409–1 or 15.503.                                 paragraph following the tables in
      are either not received or are                                           *     *      *    *    *                                            Examples 2 and 3 ‘‘subject to the Trade
      insufficient to fulfill the requirements.                                I 21. Amend section 25.502 by revising                              Agreements Act’’ and adding ‘‘covered
      This purchase restriction does not apply                                 the introductory text of paragraph (b),                             by the WTO GPA’’ in their place.
      below the WTO GPA threshold for                                          paragraphs (b)(1) and (b)(3), and the
      supplies and services, even if the                                                                                                           25.504–4        [Amended]
                                                                               introductory text of paragraph (c) to read
      acquisition is covered by an FTA.                                        as follows:                                                         I 25. Amend section 25.504–4 in
      25.405       [Removed]
                                                                                                                                                   paragraph (a) by removing from the
                                                                               25.502        Application.                                          paragraph entitled ‘‘Problem’’, following
      I   17. Remove section 25.405.                                           *     *    *     *     *                                            the table, ‘‘Trade Agreements Act does
                                                                                 (b) For acquisitions covered by the                               not apply’’ and adding ‘‘acquisition is
      25.404       [Redesignated as 25.405]
                                                                               WTO GPA (see Subpart 25.4)—                                         not covered by the WTO GPA’’ in its
      I 18. Section 25.404 is redesignated as                                    (1) Consider only offers of U.S.-made                             place; and removing ‘‘subject to the
      section 25.405 and revised; and a new                                    or designated country end products,                                 Trade Agreements Act’’ from the last


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      77876               Federal Register / Vol. 69, No. 248 / Tuesday, December 28, 2004 / Rules and Regulations

      paragraph of ‘‘STEP 2’’, and adding                     END PRODUCTS OF AUSTRALIA, CAN- definition ‘‘End product of Australia,
      ‘‘covered by the WTO GPA’’ in its place.                  ADA, CHILE, MEXICO, OR SINGAPORE Canada, Chile, Mexico, or Singapore’’;
                                                                OR ISRAELI END PRODUCTS:         and removing the definitions ‘‘Free
      25.1002    [Amended]                                                                                          Trade Agreement country’’ and ‘‘Free
      I  26. Amend section 25.1002 in the first                                                       Country of    Trade Agreement country end product’’;
                                                               Line item No.                            origin      and
      sentence of paragraph (a) by removing                                                                         I c. By revising the first and last
      ‘‘Trade Agreements Act’’ and adding                                                                           sentences of paragraph (c) of the clause
      ‘‘WTO GPA’’ in its place.                                                                                     to read as follows:
      25.1101    [Amended]                                                                                          52.225–3 Buy American Act—Free Trade
                                                                                                                    Agreements—Israeli Trade Act.
      I 27. Amend section 25.1101 by
      removing from the first sentence of                                      [List as necessary]                  *       *    *      *     *
      paragraph (c)(1) ‘‘Trade Agreements Act                 *       *        *    *      *                        Buy American Act—Free Trade
      applies’’ and adding ‘‘acquisition is                      (4) * * *                                          Agreements—Israeli Trade Act (Jan 2005)
      covered by the WTO GPA’’ in its place.                     (i) The offeror certifies that each end               (a) * * *
                                                              product, except those listed in paragraph                End product of Australia, Canada, Chile,
      I 28. Amend section 25.1102 by revising                 (g)(4)(ii) of this provision, is a U.S.-made or       Mexico, or Singapore means an article that—
      paragraph (c)(1) and the last sentence of               designated country end product, as defined               (1) Is wholly the growth, product, or
      paragraph (c)(3) to read as follows:                    in the clause of this solicitation entitled           manufacture of Australia, Canada, Chile,
                                                              ‘‘Trade Agreements.’’                                 Mexico, or Singapore; or
      25.1102    Acquisition of construction.                    (ii) The offeror shall list as other end              (2) In the case of an article that consists in
                                                              products those end products that are not              whole or in part of materials from another
      *     *     *     *     *                               U.S.-made or designated country end                   country, has been substantially transformed
        (c) * * *                                             products. * * *                                       in Australia, Canada, Chile, Mexico, or
                                                                 (iii) The Government will evaluate offers in       Singapore into a new and different article of
        (1) List in paragraph (b)(3) of the                   accordance with the policies and procedures           commerce with a name, character, or use
      clause all foreign construction material                of FAR Part 25. For line items covered by the         distinct from that of the article or articles
      excepted from the requirements of the                   WTO GPA, the Government will evaluate                 from which it was transformed. The term
      Buy American Act, other than WTO                        offers of U.S.-made or designated country             refers to a product offered for purchase under
      GPA country, least developed country,                   end products without regard to the                    a supply contract, but for purposes of
      or FTA country construction material.                   restrictions of the Buy American Act. The             calculating the value of the end product
                                                              Government will consider for award only               includes services (except transportation
      *     *     *     *     *                               offers of U.S.-made or designated country             services) incidental to the article, provided
        (3) * * * List in paragraph (b)(3) of                 end products unless the Contracting Officer           that the value of those incidental services
      the clause all foreign construction                     determines that there are no offers for such          does not exceed that of the article itself.
                                                              products or that the offers for such products         *       *    *      *     *
      material excepted from the requirements                 are insufficient to fulfill the requirements of
      of the Buy American Act, other than                                                                             (c) Delivery of end products. The
                                                              the solicitation.                                     Contracting Officer has determined that FTAs
      designated country, or Australian,
                                                              *      *    *     *     *                             (except the Morocco FTA) and the Israeli
      Chilean, or Moroccan construction                                                                             Trade Act apply to this acquisition. * * * If
                                                              I  30. Amend section 52.212–5 by—
      material.                                               I  a. Removing from the clause heading                the Contractor specified in its offer that the
      *     *     *     *     *                               ‘‘(Dec 2004)’’ and adding ‘‘(Jan 2005)’’ in           Contractor would supply an end product of
                                                                                                                    Australia, Canada, Chile, Mexico, or
                                                              its place;                                            Singapore or an Israeli end product, then the
      PART 52—SOLICITATION PROVISIONS                         I b. Revising paragraph (b)(24)(i) and
                                                                                                                    Contractor shall supply an end product of
      AND CONTRACT CLAUSES                                    (b)(25) to read as follows:                           Australia, Canada, Chile, Mexico, or
                                                                                                                    Singapore, an Israeli end product or, at the
      I 29. Amend section 52.212–3 by                         52.212–5 Contract Terms and Conditions
                                                                                                                    Contractor’s option, a domestic end product.
                                                              Required To Implement Statutes or
      revising paragraphs (g)(1)(ii), (g)(4)(i),              Executive Orders—Commercial Items.                    *     *     *     *     *
      the first sentence of (g)(4)(ii), and                                                                         I 32. Amend section 52.225–4 by—
                                                              *       *        *    *      *
      (g)(4)(iii) of the provision to read as                                                                       I a. Revising the date of the provision to
      follows:                                                CONTRACT TERMS AND CONDITIONS                         read ‘‘(Jan 2005)’’;
                                                              REQUIRED TO IMPLEMENT STATUTES OR                     I b. Revising the last sentence of
      52.212–3 Offeror Representations and                    EXECUTIVE ORDERS—COMMERCIAL                           paragraph (a) of the provision; and
      Certifications—Commercial Items.                        ITEMS (JAN 2005)
                                                                                                                    I c. Revising paragraph (b) of the
      *      *        *      *     *                            (b) * * *                                           provision to read as follows:
                                                                (24)(i) 52.225–3, Buy American Act—Free
      Offeror Representations and Certifications—             Trade Agreements— Israeli Trade Act (Jan              52.225–4 Buy American Act—Free Trade
      Commercial Items (Jan 2005)                             2005) (41 U.S.C. 10a–10d, 19 U.S.C. 3301              Agreements—Israeli Trade Act Certificate.
      *      *        *      *     *                          note, 19 U.S.C. 2112 note, Pub. L. 108–77,            *       *    *      *     *
         (g)(1) * * *                                         108–78, 108–286).
                                                                                                                    Buy American Act—Free Trade
         (ii) The offeror certifies that the following        *       *        *    *      *
                                                                                                                    Agreements—Israeli Trade Act Certificate
      supplies are end products of Australia,                   (25) 52.225–5, Trade Agreements (Jan
                                                                                                                    (Jan 2005)
      Canada, Chile, Mexico, or Singapore, or                 2005) (19 U.S.C. 2501, et seq., 19 U.S.C. 3301
                                                              note).                                                   (a) * * * The terms ‘‘component,’’
      Israeli end products as defined in the clause
                                                                                                                    ‘‘domestic end product,’’ ‘‘end product,’’
      of this solicitation entitled ‘‘Buy American            *     *     *     *     *
                                                                                                                    ‘‘end product of Australia, Canada, Chile,
      Act—Free Trade Agreements—Israeli Trade                 I 31. Amend section 52.225–3—                         Mexico, or Singapore,’’ ‘‘foreign end
      Act’’:                                                  I a. By revising the date of the clause to            product,’’ ‘‘Israeli end product,’’ and ‘‘United
                                                              read ‘‘(JAN 2005)’’;                                  States’’ are defined in the clause of this
                                                              I b. In paragraph (a) of the clause by                solicitation entitled ‘‘Buy American Act—
                                                              adding, in alphabetical order, the                    Free Trade Agreements—Israeli Trade Act.’’



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                          Federal Register / Vol. 69, No. 248 / Tuesday, December 28, 2004 / Rules and Regulations                                         77877

         (b) The offeror certifies that the following           (4) A Caribbean Basin country (Antigua              52.225–6    Trade Agreements Certificate.
      supplies are end products of Australia,                 and Barbuda, Aruba, Bahamas, Barbados,                *       *    *     *      *
      Canada, Chile, Mexico, or Singapore or                  Belize, British Virgin Islands, Costa Rica,
      Israeli end products as defined in the clause           Dominica, Dominican Republic, El Salvador,            Trade Agreements Certificate (Jan 2005)
      of this solicitation entitled ‘‘Buy American            Grenada, Guatemala, Guyana, Haiti,                       (a) The offeror certifies that each end
      Act—Free Trade Agreements—Israeli Trade                 Honduras, Jamaica, Montserrat, Netherlands            product, except those listed in paragraph (b)
      Act’’:                                                  Antilles, Nicaragua, St. Kitts and Nevis, St.         of this provision, is a U.S.-made or
                                                              Lucia, St. Vincent and the Grenadines, or             designated country end product, as defined
      END PRODUCTS OF AUSTRALIA, CAN-                         Trinidad and Tobago).                                 in the clause of this solicitation entitled
                                                                Designated country end product means a              ‘‘Trade Agreements.’’
        ADA, CHILE, MEXICO, OR SINGAPORE
                                                              WTO GPA country end product, an FTA                      (b) The offeror shall list as other end
        OR ISRAELI END PRODUCTS:                              country end product, a least developed                products those supplies that are not U.S.-
                                                              country end product, or a Caribbean Basin             made or designated country end products.
                                             Country of       country end product.
       Line item No.                                                                                                * * *
                                               origin
                                                              *       *        *    *      *                           (c) The Government will evaluate offers in
                                                                 Least developed country end product                accordance with the policies and procedures
                                                              means an article that—                                of Part 25 of the Federal Acquisition
                                                                 (1) Is wholly the growth, product, or              Regulation. For line items covered by the
                                                              manufacture of a least developed country; or          WTO GPA, the Government will evaluate
                                                                 (2) In the case of an article that consists in     offers of U.S.-made or designated country
                                                              whole or in part of materials from another            end products without regard to the
                      [List as necessary]                     country, has been substantially transformed           restrictions of the Buy American Act. The
                                                              in a least developed country into a new and           Government will consider for award only
      *     *     *     *     *                                                                                     offers of U.S.-made or designated country
                                                              different article of commerce with a name,
      I 33. Amend section 52.225–5 by—                        character, or use distinct from that of the           end products unless the Contracting Officer
      I a. Revising the date of the clause to                 article or articles from which it was                 determines that there are no offers for such
      read ‘‘(Jan 2005)’’;                                    transformed. The term refers to a product             products or that the offers for those products
      I b. Removing from paragraph (a) of the                 offered for purchase under a supply contract,         are insufficient to fulfill the requirements of
      clause the definition ‘‘Caribbean Basin                 but for purposes of calculating the value of          this solicitation.
                                                              the end product, includes services (except               (End of provision)
      country’’; revising the definitions
                                                              transportation services) incidental to the
      ‘‘Designated country’’ and ‘‘Designated                 article, provided that the value of those             52.225–9    [Amended]
      country end product’’; removing the                     incidental services does not exceed that of           I  35. Amend section 52.225–9 in the
      definition ‘‘Free Trade Agreement                       the article itself.                                   clause heading by removing ‘‘(June
      country’’; adding, in alphabetical order, *      *      *     *      *                                        2003)’’ and adding ‘‘(Jan 2005)’’ in its
      the definitions ‘‘Least developed country   WTO GPA country end product means an                              place; and in paragraph (a) in the
      end product’’ and ‘‘WTO GPA country       article that—                                                       definition ‘‘Cost of components’’ by
      end product’’; and                          (1) Is wholly the growth, product, or                             removing from the end of paragraph (2)
      I c. Revising paragraph (b) of the clause manufacture of a WTO GPA country; or
                                                                                                                    the words ‘‘end product’’ and adding
      to read as follows:                         (2) In the case of an article that consists in
                                                              whole or in part of materials from another            ‘‘construction material’’ in its place.
      52.225–5    Trade Agreements.                           country, has been substantially transformed           I 36. Amend section 52.225–11—
      *      *        *      *     *                          in a WTO GPA country into a new and                   I a. By removing from the clause
                                                              different article of commerce with a name,            heading ‘‘(Oct 2004)’’ and adding ‘‘(Jan
      Trade Agreements (Jan 2005)                             character, or use distinct from that of the           2005)’’ in its place;
         (a) * * *                                            article or articles from which it was                 I b. In paragraph (a) by adding, in
         Designated country means any of the                  transformed. The term refers to a product             alphabetical order, the definition
      following countries:                                    offered for purchase under a supply contract,         ‘‘Caribbean Basin country construction
         (1) A World Trade Organization                       but for purposes of calculating the value of
                                                              the end product includes services, (except
                                                                                                                    material’’; by removing from the end of
      Government Procurement Agreement country
      (Aruba, Austria, Belgium, Canada, Cyprus,               transportation services) incidental to the            paragraph (2) in the definition ‘‘Cost of
      Czech Republic, Denmark, Estonia, Finland,              article, provided that the value of those             components’’ the words ‘‘end product’’
      France, Germany, Greece, Hong Kong,                     incidental services does not exceed that of           and adding ‘‘construction material’’ in its
      Hungary, Iceland, Ireland, Israel, Italy, Japan,        the article itself.                                   place; by revising the definitions
      Korea (Republic of), Latvia, Liechtenstein,                (b) Delivery of end products. The                  ‘‘Designated country’’ and ‘‘Designated
      Lithuania, Luxembourg, Malta, Netherlands,              Contracting Officer has determined that the           country construction material’’; by
      Norway, Poland, Portugal, Singapore, Slovak             WTO GPA and FTAs apply to this                        removing the definition ‘‘Free Trade
      Republic, Slovenia, Spain, Sweden,                      acquisition. Unless otherwise specified, these        Agreement country’’; and by adding the
      Switzerland, or United Kingdom);                        trade agreements apply to all items in the
                                                              Schedule. The Contractor shall deliver under
                                                                                                                    definitions ‘‘Least developed country
         (2) A Free Trade Agreement country
      (Australia, Canada, Chile, Mexico, Morocco,             this contract only U.S.-made or designated            construction material’’ and ‘‘WTO GPA
      or Singapore);                                          country end products except to the extent             country construction material’’;
         (3) A least developed country (Afghanistan,          that, in its offer, it specified delivery of other    I c. By revising paragraphs (b)(1) and
      Angola, Bangladesh, Benin, Bhutan, Burkina              end products in the provision entitled ‘‘Trade        (b)(2) of the clause; and
      Faso, Burundi, Cambodia, Cape Verde,                    Agreements Certificate.’’                             I d. By revising Alternate I. The added
      Central African Republic, Chad, Comoros,                   (End of clause)                                    and revised text reads as follows:
      Democratic Republic of Congo, Djibouti, East
      Timor, Equatorial Guinea, Eritrea, Ethiopia,            I 34. Amend section 52.225–6 by—                      52.225–11 Buy American Act—
      Gambia, Guinea, Guinea-Bissau, Haiti,                                                                         Construction Materials under Trade
                                                              I a. Removing from the provision
      Kiribati, Laos, Lesotho, Madagascar, Malawi,                                                                  Agreements.
                                                              heading ‘‘(Jan 2004)’’ and adding ‘‘(Jan
      Maldives, Mali, Mauritania, Mozambique,                                                                       *       *    *     *      *
                                                              2005)’’ in its place; and
      Nepal, Niger, Rwanda, Samoa, Sao Tome and
      Principe, Senegal, Sierra Leone, Solomon                I b. Revising paragraph (a), the first                Buy American Act—Construction Materials
      Islands, Somalia, Tanzania, Togo, Tuvalu,               sentence of paragraph (b), and paragraph              Under Trade Agreements (Jan 2005)
      Uganda, Vanuatu, Yemen, or Zambia); or                  (c) of the provision to read as follows:                (a) Definitions. * * *



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      77878               Federal Register / Vol. 69, No. 248 / Tuesday, December 28, 2004 / Rules and Regulations

         Caribbean Basin country construction                 from another country, has been substantially          and the introductory text of (d)(3) to read
      material means a construction material that—            transformed in a WTO GPA country into a               as follows:
         (1) Is wholly the growth, product, or                new and different construction material
      manufacture of a Caribbean Basin country; or            distinct from the materials from which it was         52.225–12 Notice of Buy American Act
         (2) In the case of a construction material           transformed.                                          Requirement—Construction Materials
      that consists in whole or in part of materials                                                                Under Trade Agreements.
                                                              *       *        *    *      *
      from another country, has been substantially                                                                  *       *     *     *    *
                                                                (b) Construction materials. (1) This clause
      transformed in a Caribbean Basin country
                                                              implements the Buy American Act (41 U.S.C.
      into a new and different construction                                                                         Notice of Buy American Act Requirement—
                                                              10a–10d) by providing a preference for
      material distinct from the materials from                                                                     Construction Materials Under Trade
                                                              domestic construction material. In addition,
      which it was transformed.                                                                                     Agreements (Jan 2005)
                                                              the Contracting Officer has determined that
      *      *        *      *     *                          the WTO GPA and Free Trade Agreements                    (a) Definitions. ‘‘Construction material,’’
         Designated country means any of the                  (FTAs) apply to this acquisition. Therefore,          ‘‘designated country construction material,’’
      following countries:                                    the Buy American Act restrictions are waived          ‘‘domestic construction material,’’ and
         (1) A World Trade Organization                       for designated country construction                   ‘‘foreign construction material,’’ as used in
      Government Procurement Agreement country                materials.                                            this provision, are defined in the clause of
      (Aruba, Austria, Belgium, Canada, Cyprus,                 (2) The Contractor shall use only domestic,         this solicitation entitled ‘‘Buy American
      Czech Republic, Denmark, Estonia, Finland,              designated country construction material in           Act—Construction Materials Under Trade
      France, Germany, Greece, Hong Kong,                     performing this contract, except as provided          Agreements’’ (Federal Acquisition Regulation
      Hungary, Iceland, Ireland, Israel, Italy, Japan,        in paragraphs (b)(3) and (b)(4) of this clause.       (FAR) clause 52.225–11).
      Korea (Republic of), Latvia, Liechtenstein,
      Lithuania, Luxembourg, Malta, Netherlands,              *       *        *    *      *                        *       *     *     *    *
      Norway, Poland, Portugal, Singapore, Slovak                Alternate I (Jan 2005). As prescribed in             (d) Alternate offers. (1) When an offer
      Republic, Slovenia, Spain, Sweden,                      25.1102(c)(3), delete the definition of               includes foreign construction material, other
      Switzerland, or United Kingdom);                        ‘‘designated country construction material’’          than designated country construction
         (2) A Free Trade Agreement country                   from the definitions in paragraph (a) of the          material, that is not listed by the Government
      (Australia, Canada, Chile, Mexico, Morocco,             basic clause, add the following definition of         in this solicitation in paragraph (b)(3) of FAR
      or Singapore);                                          ‘‘Australian, Chilean, or Moroccan                    clause 52.225–11, the offeror also may submit
         (3) A least developed country (Afghanistan,          construction material’’ to paragraph (a) of the       an alternate offer based on use of equivalent
      Angola, Bangladesh, Benin, Bhutan, Burkina              basic clause, and substitute the following            domestic or designated country construction
      Faso, Burundi, Cambodia, Cape Verde,                    paragraphs (b)(1) and (b)(2) for paragraphs           material.
      Central African Republic, Chad, Comoros,                (b)(1) and (b)(2) of the basic clause:                *       *     *     *    *
      Democratic Republic of Congo, Djibouti, East               Australian, Chilean, or Moroccan                     (3) If the Government determines that a
      Timor, Equatorial Guinea, Eritrea, Ethiopia,            construction material means a construction            particular exception requested in accordance
      Gambia, Guinea, Guinea-Bissau, Haiti,                   material that—                                        with paragraph (c) of FAR clause 52.225–11
      Kiribati, Laos, Lesotho, Madagascar, Malawi,               (1) Is wholly the growth, product, or              does not apply, the Government will evaluate
      Maldives, Mali, Mauritania, Mozambique,                 manufacture of Australia, Chile, or Morocco;          only those offers based on use of the
      Nepal, Niger, Rwanda, Samoa, Sao Tome and               or                                                    equivalent domestic or designated country
      Principe, Senegal, Sierra Leone, Solomon                   (2) In the case of a construction material         construction material, and the offeror shall be
      Islands, Somalia, Tanzania, Togo, Tuvalu,               that consists in whole or in part of materials        required to furnish such domestic or
      Uganda, Vanuatu, Yemen, or Zambia); or                  from another country, has been substantially          designated country construction material. An
         (4) A Caribbean Basin country (Antigua               transformed in Australia, Chile, or Morocco           offer based on use of the foreign construction
      and Barbuda, Aruba, Bahamas, Barbados,                  into a new and different construction                 material for which an exception was
      Belize, British Virgin Islands, Costa Rica,             material distinct from the materials from             requested—
      Dominica, Dominican Republic, El Salvador,              which it was transformed.
      Grenada, Guatemala, Guyana, Haiti,                                                                            *       *     *     *    *
                                                                 (b) Construction materials. (1) This clause            (End of provision)
      Honduras, Jamaica, Montserrat, Netherlands              implements the Buy American Act (41 U.S.C.
      Antilles, Nicaragua, St. Kitts and Nevis, St.           10a–10d) by providing a preference for                *       *     *     *    *
      Lucia, St. Vincent and the Grenadines, or               domestic construction material. In addition,             Alternate II (Jan 2005). * * *
      Trinidad and Tobago).                                   the Contracting Officer has determined that              (a) Definitions. ‘‘Australian, Chilean, or
         Designated country construction material             the WTO GPA and all the Free Trade                    Moroccan construction material,’’ ‘‘Caribbean
      means a construction material that is a WTO             Agreements except NAFTA apply to this                 Basin country construction material,’’
      GPA country construction material, an FTA               acquisition. Therefore, the Buy American Act          ‘‘construction material,’’ ‘‘domestic
      country construction material, a least                  restrictions are waived for WTO GPA country           construction material,’’ ‘‘foreign construction
      developed country construction material, or             and Australian, Chilean, and Moroccan, least          material,’’ ‘‘least developed country
      a Caribbean Basin country construction                  developed country, and Caribbean Basin                construction material,’’ and ‘‘WTO GPA
      material.                                               country construction materials.                       country construction material,’’ as used in
      *      *        *      *     *                             (2) The Contractor shall use only domestic,        this provision, are defined in the clause of
         Least developed country construction                 WTO GPA country, Australian, Chilean, or              this solicitation entitled ‘‘Buy American
      material means a construction material that—            Moroccan, least developed country, or                 Act—Construction Materials Under Trade
         (1) Is wholly the growth, product, or                Caribbean Basin country construction                  Agreements’’ (Federal Acquisition Regulation
      manufacture of a least developed country; or            material in performing this contract, except          (FAR) clause 52.225–11).
         (2) In the case of a construction material           as provided in paragraphs (b)(3) and (b)(4) of           (d)(1) When an offer includes foreign
      that consists in whole or in part of materials          this clause.                                          construction material, other than WTO GPA
      from another country, has been substantially                                                                  country, Australian, Chilean, or Moroccan,
      transformed in a least developed country into           I 37. Amend section 52.225–12 by—                     least developed country, or Caribbean Basin
      a new and different construction material               I a. Removing from the provision                      country construction material, that is not
      distinct from the materials from which it was           heading ‘‘(JAN 2004)’’ and adding ‘‘(JAN              listed by the Government in this solicitation
      transformed.                                                                                                  in paragraph (b)(3) of FAR clause 52.225–11,
                                                              2005)’’ in its place;                                 the offeror also may submit an alternate offer
      *      *        *      *     *                          I b. Revising paragraphs (a), (d)(1), and
        WTO GPA country construction material                                                                       based on use of equivalent domestic, WTO
                                                              the introductory text of (d)(3) of the                GPA country, Australian, Chilean, or
      means a construction material that—
        (1) Is wholly the growth, product, or                 provision; and                                        Moroccan, least developed country, or
      manufacture of a WTO GPA country; or                    I c. Removing from Alternate II ‘‘(Jan                Caribbean Basin country construction
        (2) In the case of a construction material            2004)’’ and adding ‘‘(Jan 2005)’’ in its              material.
      that consists in whole or in part of materials          place; and revising paragraphs (a), (d)(1), *                 *     *     *    *


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                          Federal Register / Vol. 69, No. 248 / Tuesday, December 28, 2004 / Rules and Regulations                                     77879

        (3) If the Government determines that a               and National Aeronautics and Space                    Australia and Morocco without
      particular exception requested in accordance            Administration (NASA).                                application of the Buy American Act if
      with paragraph (c) of FAR clause 52.225–11              ACTION: Small Entity Compliance Guide.                the acquisition is subject to the Free
      does not apply, the Government will evaluate
                                                                                                                    Trade Agreements. The U.S. Trade
      only those offers based on use of the                   SUMMARY: This document is issued
      equivalent domestic, WTO GPA country,                                                                         Representative negotiated Free Trade
                                                              under the joint authority of the
      Australian, Chilean, or Moroccan, least                                                                       Agreements with Australia and
                                                              Secretary of Defense, the Administrator
      developed country, or Caribbean Basin                                                                         Morocco, which go into effect January 1,
                                                              of General Services and the
      country construction material, and the offeror
                                                              Administrator for the National                        2005, according to Public Laws 108–286
      shall be required to furnish such domestic,                                                                   and 108–302. These Agreements join the
      WTO GPA country, Australian, Chilean, or
                                                              Aeronautics and Space Administration.
                                                              This Small Entity Compliance Guide has                North American Free Trade Agreement
      Moroccan, least developed country, or                                                                         (NAFTA) and the Chile and Singapore
      Caribbean Basin country construction                    been prepared in accordance with
      material. An offer based on use of the foreign          Section 212 of the Small Business                     Free Trade Agreements which are
      construction material for which an exception            Regulatory Enforcement Fairness Act of                already in the FAR. The threshold for
      was requested—                                          1996. It consists of a summary of the                 applicability of the Australian Free
      *      *        *      *     *                          rule appearing in Federal Acquisition                 Trade Agreement is $58,550 (the same
      [FR Doc. 04–28400 Filed 12–27–04; 8:45 am]              Circular (FAC) 2001–27 which amends                   as other Free Trade Agreements to date),
                                                              the FAR. An asterisk (*) next to a rule               but the threshold for applicability of the
      BILLING CODE 6820–EP–P
                                                              indicates that a regulatory flexibility               Morocco Free Trade Agreement is
                                                              analysis has been prepared. Interested                $175,000. Because of the short statutory
      DEPARTMENT OF DEFENSE                                   parties may obtain further information                time frame, this is an interim rule. Also
                                                              regarding this rule by referring to FAC               in this rule are changes requested by the
      GENERAL SERVICES                                        2001–27, which precedes this                          U.S. Trade Representative, in the list of
      ADMINISTRATION                                          document. These documents are also                    Least Developed Countries, and changes
                                                              available via the Internet at http://                 in terminology on how the FAR uses the
      NATIONAL AERONAUTICS AND                                www.acqnet.gov/far.                                   terms ‘‘designated country’’ and ‘‘Trade
      SPACE ADMINISTRATION                                    FOR FURTHER INFORMATION CONTACT:                      Agreements Act.’’ Some technical
                                                              Laurieann Duarte, FAR Secretariat, (202)              changes are also included.
      48 CFR Chapter 1                                        501–4225. For clarification of content,
                                                              contact Cecelia Davis at (202) 219–0202.                Dated: December 22, 2004.
      Federal Acquisition Regulation; Small                                                                         Laura Auletta,
      Entity Compliance Guide                                 Free Trade Agreements—Australia and
                                                              Morocco                                               Director, Contract Policy Division.
                                                                                                                    [FR Doc. 04–28401 Filed 12–27–04; 8:45 am]
      AGENCIES: Department of Defense (DoD),                    This interim rule allows contracting
                                                                                                                    BILLING CODE 6820–EP–P
      General Services Administration (GSA),                  officers to purchase the products of




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Description: Buy American Act Free Trade Agreements document sample