48 CFR 25.103 - Exceptions.

25.103 Exceptions.
When one of the following exceptions applies, the contracting officer may acquire a foreign end product without regard to the restrictions of the Buy American Act:
(a) Public interest. The head of the agency may make a determination that domestic preference would be inconsistent with the public interest. This exception applies when an agency has an agreement with a foreign government that provides a blanket exception to the Buy American Act.
(b) Nonavailability. The Buy American Act does not apply with respect to articles, materials, or supplies if articles, materials, or supplies of the class or kind to be acquired, either as end items or components, are not mined, produced, or manufactured in the United States in sufficient and reasonably available commercial quantities and of a satisfactory quality.
(1) Class determinations.
(i) A nonavailability determination has been made for the articles listed in 25.104. This determination does not necessarily mean that there is no domestic source for the listed items, but that domestic sources can only meet 50 percent or less of total U.S. Government and nongovernment demand.
(ii) Before acquisition of an article on the list, the procuring agency is responsible to conduct market research appropriate to the circumstances, including seeking of domestic sources. This applies to acquisition of an article as—
(A) An end product; or
(B) A significant component (valued at more than 50 percent of the value of all the components).
(iii) The determination in paragraph (b)(1)(i) of this section does not apply if the contracting officer learns at any time before the time designated for receipt of bids in sealed bidding or final offers in negotiation that an article on the list is available domestically in sufficient and reasonably available commercial quantities of a satisfactory quality to meet the requirements of the solicitation. The contracting officer must—
(A) Ensure that the appropriate Buy American Act provision and clause are included in the solicitation (see 25.1101(a), 25.1101(b), or 25.1102);
(B) Specify in the solicitation that the article is available domestically and that offerors and contractors may not treat foreign components of the same class or kind as domestic components; and
(C) Submit a copy of supporting documentation to the appropriate council identified in 1.201-1, in accordance with agency procedures, for possible removal of the article from the list.
(2) Individual determinations.
(i) The head of the contracting activity may make a determination that an article, material, or supply is not mined, produced, or manufactured in the United States in sufficient and reasonably available commercial quantities of a satisfactory quality.
(ii) If the contracting officer considers that the nonavailability of an article is likely to affect future acquisitions, the contracting officer may submit a copy of the determination and supporting documentation to the appropriate council identified in 1.201-1, in accordance with agency procedures, for possible addition to the list in 25.104.
(3) A written determination is not required if all of the following conditions are present:
(i) The acquisition was conducted through use of full and open competition.
(ii) The acquisition was synopsized in accordance with 5.201.
(iii) No offer for a domestic end product was received.
(c) Unreasonable cost. The contracting officer may determine that the cost of a domestic end product would be unreasonable, in accordance with 25.105 and Subpart 25.5.
(d) Resale. The contracting officer may purchase foreign end products specifically for commissary resale.
(e) Information technology that is a commercial item. The restriction on purchasing foreign end products does not apply to the acquisition of information technology that is a commercial item, when using fiscal year 2004 or subsequent fiscal year funds (Section 535(a) of Division F, Title V, Consolidated Appropriations Act, 2004, and similar sections in subsequent appropriations acts).
[64 FR 72419, Dec. 27, 1999, as amended at 70 FR 11742, Mar. 9, 2005; 71 FR 224, Jan. 3, 2006]

Title 48 published on 2014-10-01.

No entries appear in the Federal Register after this date, for 48 CFR Part 25.

This is a list of United States Code sections, Statutes at Large, Public Laws, and Presidential Documents, which provide rulemaking authority for this CFR Part.

This list is taken from the Parallel Table of Authorities and Rules provided by GPO [Government Printing Office].

It is not guaranteed to be accurate or up-to-date, though we do refresh the database weekly. More limitations on accuracy are described at the GPO site.

United States Code
U.S. Code: Title 10 - ARMED FORCES

§ 2301 - Repealed.

§ 2302 - Definitions

§ 2302a - Simplified acquisition threshold

§ 2302b - Implementation of simplified acquisition procedures

§ 2302c - Implementation of electronic commerce capability

§ 2302d - Major system: definitional threshold amounts

§ 2303 - Applicability of chapter

§ 2303a - Repealed.

§ 2304 - Contracts: competition requirements

§ 2304a - Task and delivery order contracts: general authority

§ 2304b - Task order contracts: advisory and assistance services

§ 2304c - Task and delivery order contracts: orders

§ 2304d - Task and delivery order contracts: definitions

§ 2304e - Contracts: prohibition on competition between Department of Defense and small businesses and certain other entities

§ 2305 - Contracts: planning, solicitation, evaluation, and award procedures

§ 2305a - Design-build selection procedures

§ 2306 - Kinds of contracts

§ 2306a - Cost or pricing data: truth in negotiations

§ 2306b - Multiyear contracts: acquisition of property

§ 2306c - Multiyear contracts: acquisition of services

§ 2307 - Contract financing

§ 2308 - Buy-to-budget acquisition: end items

§ 2309 - Allocation of appropriations

§ 2310 - Determinations and decisions

§ 2311 - Assignment and delegation of procurement functions and responsibilities

§ 2312 - Remission of liquidated damages

§ 2313 - Examination of records of contractor

§ 2313a - Defense Contract Audit Agency: annual report

§ 2314 - Laws inapplicable to agencies named in

§ 2315 - Law inapplicable to the procurement of automatic data processing equipment and services for certain defense purposes

§ 2316 - Disclosure of identity of contractor

§ 2317 - Repealed.

§ 2318 - Advocates for competition

§ 2319 - Encouragement of new competitors

§ 2320 - Rights in technical data

§ 2321 - Validation of proprietary data restrictions

§ 2322 - Repealed.

§ 2323 - Contract goal for small disadvantaged businesses and certain institutions of higher education

§ 2323a - Credit for Indian contracting in meeting certain subcontracting goals for small disadvantaged businesses and certain institutions of higher education

§ 2324 - Allowable costs under defense contracts

§ 2325 - Restructuring costs

§ 2326 - Undefinitized contractual actions: restrictions

§ 2327 - Contracts: consideration of national security objectives

§ 2328 - Release of technical data under Freedom of Information Act: recovery of costs

§ 2329 - Repealed.

§ 2330 - Procurement of contract services: management structure

§ 2330a - Procurement of services: tracking of purchases

§ 2331 - Procurement of services: contracts for professional and technical services

§ 2332 - Share-in-savings contracts

§ 2333 - Joint policies on requirements definition, contingency program management, and contingency contracting

§ 2334 - Independent cost estimation and cost analysis

§ 2335 - Prohibition on collection of political information

§ 2336 - Intergovernmental support agreements with State and local governments

§ 2337 - Life-cycle management and product support


Title 48 published on 2014-10-01

The following are ALL rules, proposed rules, and notices (chronologically) published in the Federal Register relating to 48 CFR Part 25 after this date.

  • 2015-03-24; vol. 80 # 56 - Tuesday, March 24, 2015
    1. 80 FR 15544 - Federal Acquisition Regulation; List of Domestically Nonavailable Articles
      GPO FDSys XML | Text
      Advance notice of proposed rulemaking.
      Interested parties should submit written comments to the Regulatory Secretariat at one of the addressees shown below on or before May 26, 2015 to be considered in the formulation of a proposed rule.
      48 CFR Part 25