federal acquisition circular 2005-30...federal acquisition circular january 15, 2009 number 2005-30...

FEDERAL ACQUISITION CIRCULAR January 15, 2009 Number 2005-30 (Looseleaf correction) In the original issuance of the FAC 2005-30 looseleaf version, inadvertently, incorrect pages were included. The corrected pages are reissued in this looseleaf correction. Unless otherwise specified, all Federal Acquisition Regulation (FAR) and other directive material contained in FAC 2005-30 are effective January 15, 2009, except for Items I, II, III, IV, V, VI, and VII which are effective February 17, 2009.

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FAC 2005-30 (Looseleaf correction) FILING INSTRUCTIONS NOTE: The following replacement pages reflect FAR 2005-30

amendments. Please file these pages after filing all pages from FAC 2005-30. The effective date is February 17, 2009.

Remove Pages Insert Pages 15.1-1 and 15.1-2 15.1-1 and 15.1-2 24.2-1 and 24.2-2 24.2-1 and 24.2-2 25.2-1 and 25.2-2 25.2-1 and 25.2-2 52.2-11 and 52.2-12 52.2-11 and 52.2-12 52.2-39 and 52.2-40 52.2-39 and 52.2-40 52.2-42.1 and 52.2-42.2 52.2-42.1 and 52.2-42.2 52.2-139 and 52.2-140 52.2-139 and 52.2-140 52.2-145 thru 52.2-152.2 52.2-145 thru 52.2-152.2

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SUBPART 15.1—SOURCE SELECTION PROCESSES AND TECHNIQUES 15.101-2

15.1-1

15.000 Scope of part.This part prescribes policies and procedures governing

competitive and noncompetitive negotiated acquisitions. Acontract awarded using other than sealed bidding proceduresis a negotiated contract (see 14.101).

15.001 Definitions.As used in this part—“Deficiency” is a material failure of a proposal to meet a

Government requirement or a combination of significantweaknesses in a proposal that increases the risk of unsuccess-ful contract performance to an unacceptable level.

“Proposal modification” is a change made to a proposalbefore the solicitation closing date and time, or made inresponse to an amendment, or made to correct a mistake at anytime before award.

“Proposal revision” is a change to a proposal made after thesolicitation closing date, at the request of or as allowed by acontracting officer, as the result of negotiations.

“Weakness” means a flaw in the proposal that increases therisk of unsuccessful contract performance. A “significantweakness” in the proposal is a flaw that appreciably increasesthe risk of unsuccessful contract performance.

15.002 Types of negotiated acquisition.(a) Sole source acquisitions. When contracting in a sole

source environment, the request for proposals (RFP) shouldbe tailored to remove unnecessary information and require-ments; e.g., evaluation criteria and voluminous proposal prep-aration instructions.

(b) Competitive acquisitions. When contracting in a com-petitive environment, the procedures of this part are intendedto minimize the complexity of the solicitation, the evaluation,and the source selection decision, while maintaining a processdesigned to foster an impartial and comprehensive evaluationof offerors’ proposals, leading to selection of the proposal rep-resenting the best value to the Government (see 2.101).

Subpart 15.1—Source Selection Processes and Techniques

15.100 Scope of subpart.This subpart describes some of the acquisition processes

and techniques that may be used to design competitive acqui-sition strategies suitable for the specific circumstances of theacquisition.

15.101 Best value continuum.An agency can obtain best value in negotiated acquisitions

by using any one or a combination of source selectionapproaches. In different types of acquisitions, the relativeimportance of cost or price may vary. For example, in acqui-sitions where the requirement is clearly definable and the risk

of unsuccessful contract performance is minimal, cost or pricemay play a dominant role in source selection. The less defin-itive the requirement, the more development work required, orthe greater the performance risk, the more technical or pastperformance considerations may play a dominant role insource selection.

15.101-1 Tradeoff process.(a) A tradeoff process is appropriate when it may be in the

best interest of the Government to consider award to otherthan the lowest priced offeror or other than the highest tech-nically rated offeror.

(b) When using a tradeoff process, the following apply:(1) All evaluation factors and significant subfactors that

will affect contract award and their relative importance shallbe clearly stated in the solicitation; and

(2) The solicitation shall state whether all evaluationfactors other than cost or price, when combined, are signifi-cantly more important than, approximately equal to, or signif-icantly less important than cost or price.

(c) This process permits tradeoffs among cost or price andnon-cost factors and allows the Government to accept otherthan the lowest priced proposal. The perceived benefits of thehigher priced proposal shall merit the additional cost, and therationale for tradeoffs must be documented in the file in accor-dance with 15.406.

15.101-2 Lowest price technically acceptable source selection process.(a) The lowest price technically acceptable source selec-

tion process is appropriate when best value is expected toresult from selection of the technically acceptable proposalwith the lowest evaluated price.

(b) When using the lowest price technically acceptableprocess, the following apply:

(1) The evaluation factors and significant subfactorsthat establish the requirements of acceptability shall be setforth in the solicitation. Solicitations shall specify that awardwill be made on the basis of the lowest evaluated price of pro-posals meeting or exceeding the acceptability standards fornon-cost factors. If the contracting officer documents the filepursuant to 15.304(c)(3)(iii), past performance need not be anevaluation factor in lowest price technically acceptable sourceselections. If the contracting officer elects to consider pastperformance as an evaluation factor, it shall be evaluated inaccordance with 15.305. However, the comparative assess-ment in 15.305(a)(2)(i) does not apply. If the contractingofficer determines that a small business’ past performance isnot acceptable, the matter shall be referred to the Small Busi-ness Administration for a Certificate of Competency determi-nation, in accordance with the procedures contained inSubpart 19.6 and 15 U.S.C. 637(b)(7)).

(2) Tradeoffs are not permitted.

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15.102 FEDERAL ACQUISITION REGULATION

15.1-2

(3) Proposals are evaluated for acceptability but notranked using the non-cost/price factors.

(4) Exchanges may occur (see 15.306).

15.102 Oral presentations.(a) Oral presentations by offerors as requested by the Gov-

ernment may substitute for, or augment, written information.Use of oral presentations as a substitute for portions of a pro-posal can be effective in streamlining the source selection pro-cess. Oral presentations may occur at any time in theacquisition process, and are subject to the same restrictions aswritten information, regarding timing (see 15.208) and con-tent (see 15.306). Oral presentations provide an opportunityfor dialogue among the parties. Pre-recorded videotaped pre-sentations that lack real-time interactive dialogue are not con-sidered oral presentations for the purposes of this section,although they may be included in offeror submissions, whenappropriate.

(b) The solicitation may require each offeror to submit partof its proposal through oral presentations. However, represen-tations and certifications shall be submitted as required in theFAR provisions at 52.204-8(d) or 52.212-3(b), and a signedoffer sheet (including any exceptions to the Government’sterms and conditions) shall be submitted in writing.

(c) Information pertaining to areas such as an offeror’scapability, past performance, work plans or approaches, staff-ing resources, transition plans, or sample tasks (or other typesof tests) may be suitable for oral presentations. In decidingwhat information to obtain through an oral presentation, con-sider the following:

(1) The Government’s ability to adequately evaluate theinformation;

(2) The need to incorporate any information into theresultant contract;

(3) The impact on the efficiency of the acquisition; and(4) The impact (including cost) on small businesses. In

considering the costs of oral presentations, contracting offic-

ers should also consider alternatives to on-site oral presenta-tions (e.g., teleconferencing, video teleconferencing).

(d) When oral presentations are required, the solicitationshall provide offerors with sufficient information to preparethem. Accordingly, the solicitation may describe—

(1) The types of information to be presented orally andthe associated evaluation factors that will be used;

(2) The qualifications for personnel that will be requiredto provide the oral presentation(s);

(3) The requirements for, and any limitations and/orprohibitions on, the use of written material or other media tosupplement the oral presentations;

(4) The location, date, and time for the oralpresentations;

(5) The restrictions governing the time permitted foreach oral presentation; and

(6) The scope and content of exchanges that may occurbetween the Government’s participants and the offeror’s rep-resentatives as part of the oral presentations, includingwhether or not discussions (see 15.306(d)) will be permittedduring oral presentations.

(e) The contracting officer shall maintain a record of oralpresentations to document what the Government relied uponin making the source selection decision. The method and levelof detail of the record (e.g., videotaping, audio tape recording,written record, Government notes, copies of offeror briefingslides or presentation notes) shall be at the discretion of thesource selection authority. A copy of the record placed in thefile may be provided to the offeror.

(f) When an oral presentation includes information that theparties intend to include in the contract as material terms orconditions, the information shall be put in writing. Incorpora-tion by reference of oral statements is not permitted.

(g) If, during an oral presentation, the Government con-ducts discussions (see 15.306(d)), the Government must com-ply with 15.306 and 15.307.

FAC 2005–30 FEBRUARY 17, 2009


SUBPART 24.2—FREEDOM OF INFORMATION ACT 24.203

24.2-1

Subpart 24.2—Freedom of Information Act

24.201 Authority.The Freedom of Information Act (5 U.S.C. 552, as

amended) provides that information is to be made available tothe public either by—

(a) Publication in the Federal Register;(b) Providing an opportunity to read and copy records at

convenient locations; or(c) Upon request, providing a copy of a reasonably

described record.

24.202 Prohibitions.(a) A proposal in the possession or control of the Govern-

ment, submitted in response to a competitive solicitation, shallnot be made available to any person under the Freedom ofInformation Act. This prohibition does not apply to a pro-posal, or any part of a proposal, that is set forth or incorporatedby reference in a contract between the Government and thecontractor that submitted the proposal. (See10 U.S.C. 2305(g) and 41 U.S.C. 253b(m).)

(b) No agency shall disclose any information obtained pur-suant to 15.403-3(b) that is exempt from disclosure under theFreedom of Information Act. (See 10 U.S.C. 2306a(d)(2)(C)and 41 U.S.C. 254b(d)(2)(C).)

(c) A dispute resolution communication that is between aneutral person and a party to alternative dispute resolutionproceedings, and that may not be disclosed under5 U.S.C. 574, is exempt from disclosure under the Freedom ofInformation Act (5 U.S.C. 552(b)(3)).

24.203 Policy.(a) The Act specifies, among other things, how agencies

shall make their records available upon public request,imposes strict time standards for agency responses, andexempts certain records from public disclosure. Eachagency’s implementation of these requirements is located inits respective title of the Code of Federal Regulations and ref-erenced in Subpart 24.2 of its implementing acquisitionregulations.

(b) Contracting officers may receive requests for recordsthat may be exempted from mandatory public disclosure. Theexemptions most often applicable are those relating to classi-fied information, to trade secrets and confidential commercialor financial information, to interagency or intra-agency mem-oranda, or to personal and medical information pertaining toan individual. Other exemptions include agency personnelpractices, and law enforcement. Since these requests ofteninvolve complex issues requiring an in-depth knowledge of alarge and increasing body of court rulings and policy guid-ance, contracting officers are cautioned to comply with theimplementing regulations of their agency and to obtain nec-essary guidance from the agency officials having Freedom ofInformation Act responsibility. If additional assistance isneeded, authorized agency officials may contact the Depart-ment of Justice, Office of Information and Privacy. A Free-dom of Information Act guide and other resources areavailable at the Department of Justice website under FOIAreference materials: http://www.usdoj.gov/oip.

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SUBPART 25.2—BUY AMERICAN ACT—CONSTRUCTION MATERIALS 25.205

25.2-1

Subpart 25.2—Buy American Act—Construction Materials

25.200 Scope of Subpart.(a) This subpart implements—

(1) The Buy American Act (41 U.S.C. 10a - 10d);(2) Executive Order 10582, December 17, 1954; and(3) Waiver of the component test of the Buy American

Act for acquisitions of commercially available off-the-shelf(COTS) items in accordance with 41 U.S.C. 431.

(b) It applies to contracts for the construction, alteration, orrepair of any public building or public work in the UnitedStates.

25.201 Policy.Except as provided in 25.202, use only domestic construc-

tion materials in construction contracts performed in theUnited States.

25.202 Exceptions.(a) When one of the following exceptions applies, the con-

tracting officer may acquire foreign construction materialswithout regard to the restrictions of the Buy American Act:

(1) Impracticable or inconsistent with public interest.The head of the agency may determine that application of therestrictions of the Buy American Act to a particular construc-tion material would be impracticable or would be inconsistentwith the public interest. The public interest exception applieswhen an agency has an agreement with a foreign governmentthat provides a blanket exception to the Buy American Act.

(2) Nonavailability. The head of the contracting activitymay determine that a particular construction material is notmined, produced, or manufactured in the United States in suf-ficient and reasonably available commercial quantities of asatisfactory quality. The determinations of nonavailability ofthe articles listed at 25.104(a) and the procedures at25.103(b)(1) also apply if any of those articles are acquired asconstruction materials.

(3) Unreasonable cost. The contracting officer con-cludes that the cost of domestic construction material is unrea-sonable in accordance with 25.204.

(b) Determination and findings. When a determination ismade for any of the reasons stated in this section that certainforeign construction materials may be used, the contractingofficer must list the excepted materials in the contract. Theagency must make the findings justifying the exception avail-able for public inspection.

(c) Acquisitions under trade agreements. For constructioncontracts with an estimated acquisition value of $7,443,000 ormore, see Subpart 25.4.

25.203 Preaward determinations.(a) For any acquisition, an offeror may request from the

contracting officer a determination concerning the inapplica-bility of the Buy American Act for specifically identified con-struction materials. The time for submitting the request isspecified in the solicitation in paragraph (b) of either52.225-10 or 52.225-12, whichever applies. The informationand supporting data that must be included in the request arealso specified in the solicitation in paragraphs (c) and (d) ofeither 52.225-9 or 52.225-11, whichever applies.

(b) Before award, the contracting officer must evaluate allrequests based on the information provided and may supple-ment this information with other readily availableinformation.

25.204 Evaluating offers of foreign construction material.(a) Offerors proposing to use foreign construction material

other than that listed by the Government in the applicableclause at 52.225-9, paragraph (b)(2), or 52.225-11,paragraph (b)(3), or covered by the WTO GPA or a Free TradeAgreement (paragraph (b)(2) of 52.225-11), must provide theinformation required by paragraphs (c) and (d) of the respec-tive clauses.

(b) Unless the head of the agency specifies a higher per-centage, the contracting officer must add to the offered price6 percent of the cost of any foreign construction material pro-posed for exception from the requirements of the Buy Amer-ican Act based on the unreasonable cost of domesticconstruction materials. In the case of a tie, the contractingofficer must give preference to an offer that does not includeforeign construction material excepted at the request of theofferor on the basis of unreasonable cost.

(c) Offerors also may submit alternate offers based on useof equivalent domestic construction material to avoid possiblerejection of the entire offer if the Government determines thatan exception permitting use of a particular foreign construc-tion material does not apply.

(d) If the contracting officer awards a contract to an offerorthat proposed foreign construction material not listed in theapplicable clause in the solicitation (paragraph (b)(2) of52.225-9, or paragraph (b)(3) of 52.225-11), the contractingofficer must add the excepted materials to the list in the con-tract clause.

25.205 Postaward determinations.(a) If a contractor requests a determination regarding the

inapplicability of the Buy American Act after contract award,the contractor must explain why it could not request the deter-mination before contract award or why the need for suchdetermination otherwise was not reasonably foreseeable. Ifthe contracting officer concludes that the contractor shouldhave made the request before contract award, the contractingofficer may deny the request.

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25.206 FEDERAL ACQUISITION REGULATION

25.2-2

(b) The contracting officer must base evaluation of anyrequest for a determination regarding the inapplicability of theBuy American Act made after contract award on informationrequired by paragraphs (c) and (d) of the applicable clause at52.225-9 or 52.225-11 and/or other readily availableinformation.

(c) If a determination, under 25.202(a), is made after con-tract award that an exception to the Buy American Actapplies, the contracting officer must negotiate adequate con-sideration and modify the contract to allow use of the foreignconstruction material. When the basis for the exception is theunreasonable price of a domestic construction material, ade-quate consideration is at least the differential established in25.202(a) or in accordance with agency procedures.

25.206 Noncompliance.The contracting officer must—(a) Review allegations of Buy American Act violations;(b) Unless fraud is suspected, notify the contractor of the

apparent unauthorized use of foreign construction materialand request a reply, to include proposed corrective action; and

(c) If the review reveals that a contractor or subcontractorhas used foreign construction material without authorization,take appropriate action, including one or more of thefollowing:

(1) Process a determination concerning the inapplica-bility of the Buy American Act in accordance with 25.205.

(2) Consider requiring the removal and replacement ofthe unauthorized foreign construction material.

(3) If removal and replacement of foreign constructionmaterial incorporated in a building or work would be imprac-ticable, cause undue delay, or otherwise be detrimental to theinterests of the Government, the contracting officer maydetermine in writing that the foreign construction materialneed not be removed and replaced. A determination to retainforeign construction material does not constitute a determina-tion that an exception to the Buy American Act applies, andthis should be stated in the determination. Further, a determi-nation to retain foreign construction material does not affectthe Government’s right to suspend or debar a contractor, sub-contractor, or supplier for violation of the Buy American Act,or to exercise other contractual rights and remedies, such asreducing the contract price or terminating the contract fordefault.

(4) If the noncompliance is sufficiently serious, con-sider exercising appropriate contractual remedies, such as ter-minating the contract for default. Also consider preparing andforwarding a report to the agency suspending or debarringofficial in accordance with Subpart 9.4. If the noncomplianceappears to be fraudulent, refer the matter to other appropriateagency officials, such as the officer responsible for criminalinvestigation.


SUBPART 52.2—TEXT OF PROVISIONS AND CLAUSES 52.204-8

52.2-11

internet at http://www.ccr.gov or by calling 1-888-227-2423,or 269-961-5757.

(End of clause)

52.204-8 Annual Representations and Certifications.As prescribed in 4.1202, insert the following provision:

ANNUAL REPRESENTATIONS AND CERTIFICATIONS (FEB 2009)

(a)(1) The North American Industry Classification System(NAICS) code for this acquisition is __________________[insert NAICS code].

(2) The small business size standard is _____________[insert size standard].

(3) The small business size standard for a concern whichsubmits an offer in its own name, other than on a constructionor service contract, but which proposes to furnish a productwhich it did not itself manufacture, is 500 employees.

(b)(1) If the clause at 52.204-7, Central Contractor Regis-tration, is included in this solicitation, paragraph (d) of thisprovision applies.

(2) If the clause at 52.204-7 is not included in this solic-itation, and the offeror is currently registered in CCR, and hascompleted the ORCA electronically, the offeror may chooseto use paragraph (d) of this provision instead of completingthe corresponding individual representations and certifica-tions in the solicitation. The offeror shall indicate whichoption applies by checking one of the following boxes:

[ ] (i) Paragraph (d) applies.[ ] (ii) Paragraph (d) does not apply and the offeror

has completed the individual representations andcertifications in the solicitation.

(c)(1) The following representations or certifications inORCA are applicable to this solicitation as indicated:

(i) 52.203-2, Certificate of Independent Price Deter-mination. This provision applies to solicitations when a firm-fixed-price contract or fixed-price contract with economicprice adjustment is contemplated, unless—

(A) The acquisition is to be made under the sim-plified acquisition procedures in Part 13;

(B) The solicitation is a request for technical pro-posals under two-step sealed bidding procedures; or

(C) The solicitation is for utility services forwhich rates are set by law or regulation.

(ii) 52.203-11, Certification and Disclosure Regard-ing Payments to Influence Certain Federal Transactions. Thisprovision applies to solicitations expected to exceed$100,000.

(iii) 52.204-3, Taxpayer Identification. This provi-sion applies to solicitations that do not include the clause at52.204-7, Central Contractor Registration.

(iv) 52.204-5, Women-Owned Business (Other ThanSmall Business). This provision applies to solicitations that—

(A) Are not set aside for small business concerns; (B) Exceed the simplified acquisition threshold;

and(C) Are for contracts that will be performed in the

United States or its outlying areas. (v) 52.209-5, Certification Regarding Responsibility

Matters. This provision applies to solicitations where the con-tract value is expected to exceed the simplified acquisitionthreshold.

(vi) 52.214-14, Place of Performance—Sealed Bid-ding. This provision applies to invitations for bids exceptthose in which the place of performance is specified by theGovernment.

(vii) 52.215-6, Place of Performance. This provisionapplies to solicitations unless the place of performance isspecified by the Government.

(viii) 52.219-1, Small Business Program Represen-tations (Basic & Alternate I). This provision applies to solic-itations when the contract will be performed in the UnitedStates or its outlying areas.

(A) The basic provision applies when the solici-tations are issued by other than DoD, NASA, and the CoastGuard.

(B) The provision with its Alternate I applies tosolicitations issued by DoD, NASA, or the Coast Guard.

(ix) 52.219-2, Equal Low Bids. This provisionapplies to solicitations when contracting by sealed biddingand the contract will be performed in the United States or itsoutlying areas.

(x) 52.222-22, Previous Contracts and ComplianceReports. This provision applies to solicitations that includethe clause at 52.222-26, Equal Opportunity.

(xi) 52.222-25, Affirmative Action Compliance.This provision applies to solicitations, other than those forconstruction, when the solicitation includes the clause at52.222-26, Equal Opportunity.

(xii) 52.222-38, Compliance with Veterans’Employment Reporting Requirements. This provisionapplies to solicitations when it is anticipated the contractaward will exceed the simplified acquisition threshold and thecontract is not for acquisition of commercial items.

(xiii) 52.223-1, Biobased Product Certification.This provision applies to solicitations that require the deliveryor specify the use of USDA–designated items; or include theclause at 52.223-2, Affirmative Procurement of BiobasedProducts Under Service and Construction Contracts.

(xiv) 52.223-4, Recovered Material Certification.This provision applies to solicitations that are for, or specifythe use of, EPA–designated items.

(xv) 52.225-2, Buy American Act Certificate. Thisprovision applies to solicitations containing the clause at52.225-1.

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52.204-9 FEDERAL ACQUISITION REGULATION

52.2-12

(xvi) 52.225-4, Buy American Act—Free TradeAgreements—Israeli Trade Act Certificate. (Basic, AlternateI, and Alternate II) This provision applies to solicitations con-taining the clause at 52.225-3.

(A) If the acquisition value is less than $25,000,the basic provision applies.

(B) If the acquisition value is $25,000 or more butis less than $50,000, the provision with its Alternate I applies.

(C) If the acquisition value is $50,000 or more butis less than $67,826, the provision with its Alternate II applies.

(xvii) 52.225-6, Trade Agreements Certificate. Thisprovision applies to solicitations containing the clause at52.225-5.

(xviii) 52.225-20, Prohibition on ConductingRestricted Business Operations in Sudan—Certification.

(xix) 52.226-2, Historically Black College or Uni-versity and Minority Institution Representation. This provi-sion applies to—

(A) Solicitations for research, studies, supplies, orservices of the type normally acquired from higher educa-tional institutions; and

(B) For DoD, NASA, and Coast Guard acquisi-tions, solicitations that contain the clause at 52.219-23, Noticeof Price Evaluation Adjustment for Small DisadvantagedBusiness Concerns.

(2) The following certifications are applicable as indi-cated by the Contracting Officer:

[Contracting Officer check as appropriate.]__ (i) 52.219-19, Small Business Concern Represen-

tation for the Small Business Competitiveness DemonstrationProgram.

__ (ii) 52.219-21, Small Business Size Representa-tion for Targeted Industry Categories Under the Small Busi-ness Competitiveness Demonstration Program.

__ (iii) 52.219-22, Small Disadvantaged BusinessStatus.

__ (A) Basic.__ (B) Alternate I.

__ (iv) 52.222-18, Certification Regarding Knowl-edge of Child Labor for Listed End Products.

__ (v) 52.222-48, Exemption from Application ofthe Service Contract Act to Contracts for Maintenance, Cali-bration, or Repair of Certain Equipment Certification.

__ (vi) 52.222-52, Exemption from Application ofthe Service Contract Act to Contracts for Certain Services–Certification.

__ (vii) 52.223-9, with its Alternate I, Estimate ofPercentage of Recovered Material Content for EPA–Desig-nated Products (Alternate I only).

__ (viii) 52.223-13, Certification of Toxic ChemicalRelease Reporting.

__ (ix) 52.227-6, Royalty Information.__ (A) Basic.

__(B) Alternate I.__ (x) 52.227-15, Representation of Limited Rights

Data and Restricted Computer Software. (d) The offeror has completed the annual representations

and certifications electronically via the Online Representa-tions and Certifications Application (ORCA) website at http://orca.bpn.gov. After reviewing the ORCA database informa-tion, the offeror verifies by submission of the offer that therepresentations and certifications currently posted electroni-cally that apply to this solicitation as indicated in paragraph(c) of this provision have been entered or updated within thelast 12 months, are current, accurate, complete, and applicableto this solicitation (including the business size standard appli-cable to the NAICS code referenced for this solicitation), asof the date of this offer and are incorporated in this offer byreference (see FAR 4.1201); except for the changes identifiedbelow [offeror to insert changes, identifying change by clausenumber, title, date]. These amended representation(s) and/orcertification(s) are also incorporated in this offer and are cur-rent, accurate, and complete as of the date of this offer.

Any changes provided by the offeror are applicable to thissolicitation only, and do not result in an update to the repre-sentations and certifications posted on ORCA.

(End of provision)

52.204-9 Personal Identity Verification of Contractor Personnel.As prescribed in 4.1303, insert the following clause:

PERSONAL IDENTITY VERIFICATION OF CONTRACTOR PERSONNEL (SEPT 2007)

(a) The Contractor shall comply with agency personalidentity verification procedures identified in the contract thatimplement Homeland Security Presidential Directive-12(HSPD-12), Office of Management and Budget (OMB) guid-ance M-05-24 and Federal Information Processing StandardsPublication (FIPS PUB) Number 201.

(b) The Contractor shall insert this clause in all subcon-tracts when the subcontractor is required to have routine phys-ical access to a Federally-controlled facility and/or routineaccess to a Federally-controlled information system.

(End of clause)

52.204-10 Reporting Subcontract Awards.As prescribed in 4.1401(a), insert the following clause:

REPORTING SUBCONTRACT AWARDS (SEPT 2007)(a) Definition. Subcontract, as used in this clause, means

any contract as defined in FAR Subpart 2.1 entered into by the

FAR CLAUSE # TITLE DATE CHANGE____________ _________ _____ _______

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52.2-39

pose. This paragraph does not give the Government any right toaudit the Contractor’s records. The Contractor shall not be paidfor any work performed or costs incurred that reasonably couldhave been avoided.

52.212-5 Contract Terms and Conditions Required to Implement Statutes or Executive Orders—Commercial Items.As prescribed in 12.301(b)(4), insert the following clause:

CONTRACT TERMS AND CONDITIONS REQUIRED TO IMPLEMENT STATUTES OR EXECUTIVE ORDERS—

COMMERCIAL ITEMS (FEB 2009)

(a) The Contractor shall comply with the following FederalAcquisition Regulation (FAR) clauses, which are incorpo-rated in this contract by reference, to implement provisions oflaw or Executive orders applicable to acquisitions of commer-cial items:

(1) 52.222-50, Combating Trafficking in Persons(FEB 2009) (22 U.S.C. 7104(g)).

___Alternate I (AUG 2007) of 52.222-50 (22 U.S.C.7104(g)).

(2) 52.233-3, Protest After Award (AUG 1996)(31 U.S.C. 3553).

(3) 52.233-4, Applicable Law for Breach of ContractClaim (OCT 2004) (Pub. L. 108-77, 108-78)

(b) The Contractor shall comply with the FAR clauses inthis paragraph (b) that the Contracting Officer has indicated asbeing incorporated in this contract by reference to implementprovisions of law or Executive orders applicable to acquisi-tions of commercial items:

[Contracting Officer check as appropriate.]

__ (1) 52.203-6, Restrictions on Subcontractor Sales tothe Government (Sept 2006), with Alternate I (Oct 1995)(41 U.S.C. 253g and 10 U.S.C. 2402).

__ (2) 52.203-13, Contractor Code of Business Ethicsand Conduct (DEC 2008) (Pub. L. 110-252, Title VI, Chapter1 (41 U.S.C. 251 note)).

__ (3) 52.219-3, Notice of Total HUBZone Set-Aside(JAN 1999) (15 U.S.C. 657a).

__ (4) 52.219-4, Notice of Price Evaluation Preferencefor HUBZone Small Business Concerns (JULY 2005) (if theofferor elects to waive the preference, it shall so indicate in itsoffer) (15 U.S.C. 657a).

__ (5) [Reserved]__ (6)(i) 52.219-6, Notice of Total Small Business Set-

Aside (JUNE 2003) (15 U.S.C. 644).__ (ii) Alternate I (OCT 1995) of 52.219-6.__ (iii) Alternate II (MAR 2004) of 52.219-6.

__ (7)(i) 52.219-7, Notice of Partial Small BusinessSet-Aside (JUNE 2003) (15 U.S.C. 644).

__ (ii) Alternate I (OCT 1995) of 52.219-7.__ (iii) Alternate II (MAR 2004) of 52.219-7.

__ (8) 52.219-8, Utilization of Small BusinessConcerns (MAY 2004) (15 U.S.C. 637(d)(2) and (3)).

__ (9)(i) 52.219-9, Small Business SubcontractingPlan (APR 2008) (15 U.S.C. 637(d)(4)).

__ (ii) Alternate I (OCT 2001) of 52.219-9.__ (iii) Alternate II (OCT 2001) of 52.219-9.

__ (10) 52.219-14, Limitations on Subcontracting(DEC 1996) (15 U.S.C. 637(a)(14)).

__ (11) 52.219-16, Liquidated Damages—Subcon-tracting Plan (JAN 1999) (15 U.S.C. 637(d)(4)(F)(i)).

__ (12)(i) 52.219-23, Notice of Price EvaluationAdjustment for Small Disadvantaged Business Concerns(OCT 2008) (10 U.S.C. 2323) (if the offeror elects to waivethe adjustment, it shall so indicate in its offer).

__ (ii) Alternate I (JUNE 2003) of 52.219-23.__ (13) 52.219-25, Small Disadvantaged Business

Participation Program—Disadvantaged Status and Reporting(APR 2008) (Pub. L. 103-355, section 7102, and10 U.S.C. 2323).

__ (14) 52.219-26, Small Disadvantaged BusinessParticipation Program— Incentive Subcontracting(OCT 2000) (Pub. L. 103-355, section 7102, and10 U.S.C. 2323).

__ (15) 52.219-27, Notice of Total Service-DisabledVeteran-Owned Small Business Set-Aside (MAY 2004)(15 U.S.C. 657 f).

__ (16) 52.219-28, Post Award Small BusinessProgram Rerepresentation (JUNE 2007) (15 U.S.C.632(a)(2)).

__ (17) 52.222-3, Convict Labor (JUNE 2003)(E.O. 11755).

__ (18) 52.222-19, Child Labor—Cooperation withAuthorities and Remedies (FEB 2008) (E.O. 13126).

__ (19) 52.222-21, Prohibition of Segregated Facilities(FEB 1999).

__ (20) 52.222-26, Equal Opportunity (MAR 2007)(E.O. 11246).

__ (21) 52.222-35, Equal Opportunity for SpecialDisabled Veterans, Veterans of the Vietnam Era, and OtherEligible Veterans (SEPT 2006) (38 U.S.C. 4212).

__ (22) 52.222-36, Affirmative Action for Workers withDisabilities (JUN 1998) (29 U.S.C. 793).

__ (23) 52.222-37, Employment Reports on SpecialDisabled Veterans, Veterans of the Vietnam Era, and OtherEligible Veterans (SEPT 2006) (38 U.S.C. 4212).

__ (24) 52.222-39, Notification of Employee RightsConcerning Payment of Union Dues or Fees (DEC 2004)(E.O. 13201).

__ (25) 52.222-54, Employment Eligibility Verification(JAN 2009). (Executive Order 12989). (Not applicable to theacquisition of commercially available off-the-shelf items orcertain other types of commercial items as prescribed in22.1803.)

FAC 2005–30 FEBRUARY 17, 2009


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52.2-40

__ (26)(i) 52.223-9, Estimate of Percentage of Recov-ered Material Content for EPA–Designated Items(MAY 2008) (42 U.S.C. 6962(c)(3)(A)(ii)). (Not applicableto the acquisition of commercially available off-the-shelfitems.)

__ (ii) Alternate I (MAY 2008) of 52.223-9(42 U.S.C. 6962(i)(2)(C)). (Not applicable to the acquisitionof commercially available off-the-shelf items.)

__ (27) 52.223-15, Energy Efficiency in Energy-Consuming Products (DEC 2007) (42 U.S.C. 8259b).

__ (28)(i) 52.223-16, IEEE 1680 Standard for theEnvironmental Assessment of Personal Computer Products(DEC 2007) (E.O. 13423).

__ (ii) Alternate I (DEC 2007) of 52.223-16.__ (29) 52.225-1, Buy American Act—Supplies

(FEB 2009) (41 U.S.C. 10a-10d).__ (30)(i)52.225-3, Buy American Act—Free Trade

Agreements—Israeli Trade Act (FEB 2009) (41 U.S.C. 10a-10d, 19 U.S.C. 3301 note, 19 U.S.C. 2112 note, Pub. L 108-77, 108-78, 108-286, 109-53 and 109-169).

__ (ii) Alternate I (JAN 2004) of 52.225-3.__ (iii) Alternate II (JAN 2004) of 52.225-3.

__ (31) 52.225-5, Trade Agreements (NOV 2007)(19 U.S.C. 2501, et seq., 19 U.S.C. 3301 note).

__ (32) 52.225-13, Restrictions on Certain ForeignPurchases (JUNE 2008) (E.O.’s, proclamations, and statutesadministered by the Office of Foreign Assets Control of theDepartment of the Treasury).

__ (33) 52.226-4, Notice of Disaster or Emergency AreaSet-Aside (NOV 2007) (42 U.S.C. 5150).

__ (34) 52.226-5, Restrictions on SubcontractingOutside Disaster or Emergency Area (NOV 2007) (42 U.S.C.5150).

__ (35) 52.232-29, Terms for Financing of Purchases ofCommercial Items (FEB 2002) (41 U.S.C. 255(f),10 U.S.C. 2307(f)).

__ (36) 52.232-30, Installment Payments forCommercial Items (OCT 1995) (41 U.S.C. 255(f),10 U.S.C. 2307(f)).

__ (37) 52.232-33, Payment by Electronic FundsTransfer—Central Contractor Registration (OCT 2003)(31 U.S.C. 3332).

__ (38) 52.232-34, Payment by Electronic FundsTransfer—Other than Central Contractor Registration(MAY 1999) (31 U.S.C. 3332).

__ (39) 52.232-36, Payment by Third Party(MAY 1999) (31 U.S.C. 3332).

__ (40) 52.239-1, Privacy or Security Safeguards(AUG 1996) (5 U.S.C. 552a).

__ (41)(i) 52.247-64, Preference for Privately OwnedU.S.-Flag Commercial Vessels (FEB 2006)(46 U.S.C. Appx. 1241(b) and 10 U.S.C. 2631).

__ (ii) Alternate I (Apr 2003) of 52.247-64.(c) The Contractor shall comply with the FAR clauses in

this paragraph (c), applicable to commercial services, that the

Contracting Officer has indicated as being incorporated in thiscontract by reference to implement provisions of law or Exec-utive orders applicable to acquisitions of commercial items:[Contracting Officer check as appropriate.]

__ (1) 52.222-41, Service Contract Act of 1965(Nov 2007) (41 U.S.C. 351, et seq.).

__ (2) 52.222-42, Statement of Equivalent Rates forFederal Hires (MAY 1989) (29 U.S.C. 206 and41 U.S.C. 351, et seq.).

__ (3) 52.222-43, Fair Labor Standards Act and ServiceContract Act—Price Adjustment (Multiple Year and OptionContracts) (NOV 2006) (29 U.S.C. 206 and 41 U.S.C. 351,et seq.).

__ (4) 52.222-44, Fair Labor Standards Act and ServiceContract Act—Price Adjustment (FEB 2002) (29 U.S.C. 206and 41 U.S.C. 351, et seq.).

__ (5) 52.222-51, Exemption from Application of theService Contract Act to Contracts for Maintenance,Calibration, or Repair of Certain Equipment—Requirements(NOV 2007) (41 351, et seq.).

__ (6) 52.222-53, Exemption from Application of theService Contract Act to Contracts for Certain Services—Requirements (FEB 2009) (41 U.S.C. 351, et seq.).

__ (7) 52.237-11, Accepting and Dispensing of $1 Coin(SEPT 2008) (31 U.S.C. 5112(p)(1)).

(d) Comptroller General Examination of Record. TheContractor shall comply with the provisions of thisparagraph (d) if this contract was awarded using other thansealed bid, is in excess of the simplified acquisition threshold,and does not contain the clause at 52.215-2, Audit andRecords—Negotiation.

(1) The Comptroller General of the United States, or anauthorized representative of the Comptroller General, shallhave access to and right to examine any of the Contractor’sdirectly pertinent records involving transactions related to thiscontract.

(2) The Contractor shall make available at its offices atall reasonable times the records, materials, and other evidencefor examination, audit, or reproduction, until 3 years afterfinal payment under this contract or for any shorter periodspecified in FAR Subpart 4.7, Contractor Records Retention,of the other clauses of this contract. If this contract iscompletely or partially terminated, the records relating to thework terminated shall be made available for 3 years after anyresulting final termination settelement. Records relating toappeals under the disputes clause or to litigation or the settle-ment of claims arising under or relating to this contract shallbe made available until such appeals, litigation, or claims arefinally resolved.

(3) As used in this clause, records include books, docu-ments, accounting procedures and practices, and other data,regardless of type and regardless of form. This does notrequire the Contractor to create or maintain any record that the

FAC 2005–30 FEBRUARY 17, 2009


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52.2-42.1

(v) 52.233-1, Disputes (JULY 2002).(vi) 52.244-6, Subcontracts for Commercial Items

(FEB 2009).(vii) 52.253-1, Computer Generated Forms

(JAN 1991).(b) The Contractor shall comply with the following FAR

clauses, incorporated by reference, unless the circumstancesdo not apply:

(1) The clauses listed below implement provisions oflaw or Executive order:

(i) 52.222-19, Child Labor—Cooperation withAuthorities and Remedies (FEB 2008) (E.O. 13126). (Appliesto contracts for supplies exceeding the micro-purchase thresh-old.)

(ii) 52.222-20, Walsh-Healey Public Contracts Act(DEC 1996) (41 U.S.C. 35-45) (Applies to supply contractsover $10,000 in the United States, Puerto Rico, or the U.S.Virgin Islands).

(iii) 52.222-35, Equal Opportunity for Special Dis-abled Veterans, Veterans of the Vietnam Era, and Other Eligi-ble Veterans (SEPT 2006) (38 U.S.C. 4212) (Applies tocontracts of $100,000 or more).

(iv) 52.222-36, Affirmative Action for Workers withDisabilities (JUNE 1998) (29 U.S.C. 793). (Applies to con-tracts over $10,000, unless the work is to be performed outsidethe United States by employees recruited outside the UnitedStates.) (For purposes of this clause, United States includesthe 50 States, the District of Columbia, Puerto Rico, theNorthern Mariana Islands, American Samoa, Guam, the U.S.Virgin Islands, and Wake Island.)

(v) 52.222-37, Employment Reports on Special Dis-abled Veterans, Veterans of the Vietnam Era, and Other Eligi-ble Veterans (SEPT 2006) (38 U.S.C. 4212) (Applies tocontracts of $100,000 or more).

(vi) 52.222-41, Service Contract Act of 1965(NOV 2007) (41 U.S.C. 351, et seq.)

(vii) 52.223-5, Pollution Prevention and Right-to-Know Information (AUG 2003) (E.O. 13148) (Applies to ser-vices performed on Federal facilities).

(viii) 52.223-15, Energy Efficiency in Energy-Con-suming Products (DEC 2007) (42 U.S.C. 8259b) (Unlessexempt pursuant to 23.204, applies to contracts when energy-consuming products listed in the ENERGY STAR® Programor Federal Energy Management Program (FEMP) will be—

(A) Delivered;(B) Acquired by the Contractor for use in per-

forming services at a Federally-controlled facility;(C) Furnished by the Contractor for use by the

Government; or(D) Specified in the design of a building or work,

or incorporated during its construction, renovation, or main-tenance.)

(ix) 52.225-1, Buy American Act—Supplies(FEB 2009) (41 U.S.C. 10a-10d) (Applies to contracts forsupplies, and to contracts for services involving the furnishingof supplies, for use in the United States or its outlying areas,if the value of the supply contract or supply portion of a ser-vice contract exceeds the micro-purchase threshold and theacquisition—

(A) Is set aside for small business concerns; or(B) Cannot be set aside for small business con-

cerns (see 19.502-2), and does not exceed $25,000).(x) 52.232-33, Payment by Electronic Funds Trans-

fer—Central Contractor Registration (OCT 2003). (Applieswhen the payment will be made by electronic funds transfer(EFT) and the payment office uses the Central ContractorRegistration (CCR) database as its source of EFTinformation.)

(xi) 52.232-34, Payment by Electronic Funds Trans-fer—Other than Central Contractor Registration (MAY 1999).(Applies when the payment will be made by EFT and the pay-ment office does not use the CCR database as its source ofEFT information.)

(xii) 52.247-64, Preference for Privately OwnedU.S.-Flag Commercial Vessels (FEB 2006)(46 U.S.C. App. 1241). (Applies to supplies transported byocean vessels (except for the types of subcontracts listed at47.504(d).)

(2) Listed below are additional clauses that may apply:(i) 52.209-6, Protecting the Government’s Interest

When Subcontracting with Contractors Debarred, Suspended,or Proposed for Debarment (SEPT 2006) (Applies to contractsover $30,000).

(ii) 52.211-17, Delivery of Excess Quantities(SEPT 1989) (Applies to fixed-price supplies).

(iii) 52.247-29, F.o.b. Origin (FEB 2006) (Applies tosupplies if delivery is f.o.b. origin).

(iv) 52.247-34, F.o.b. Destination (NOV 1991)(Applies to supplies if delivery is f.o.b. destination).

(c) FAR 52.252-2, Clauses Incorporated by Reference(FEB 1998). This contract incorporates one or more clauses byreference, with the same force and effect as if they were givenin full text. Upon request, the Contracting Officer will maketheir full text available. Also, the full text of a clause may beaccessed electronically at this/these address(es):________________________________________________________________________________________________

[Insert one or more Internet addresses]

(d) Inspection/Acceptance. The Contractor shall tender foracceptance only those items that conform to the requirementsof this contract. The Government reserves the right to inspector test any supplies or services that have been tendered foracceptance. The Government may require repair or replace-ment of nonconforming supplies or reperformance of noncon-

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52.2-42.2

forming services at no increase in contract price. TheGovernment must exercise its postacceptance rights—

(1) Within a reasonable period of time after the defectwas discovered or should have been discovered; and

(2) Before any substantial change occurs in the condi-tion of the item, unless the change is due to the defect in theitem.

(e) Excusable delays. The Contractor shall be liable fordefault unless nonperformance is caused by an occurrencebeyond the reasonable control of the Contractor and withoutits fault or negligence, such as acts of God or the publicenemy, acts of the Government in either its sovereign or con-tractual capacity, fires, floods, epidemics, quarantine restric-tions, strikes, unusually severe weather, and delays ofcommon carriers. The Contractor shall notify the ContractingOfficer in writing as soon as it is reasonably possible after thecommencement of any excusable delay, setting forth the fullparticulars in connection therewith, shall remedy such occur-rence with all reasonable dispatch, and shall promptly givewritten notice to the Contracting Officer of the cessation ofsuch occurrence.

(f) Termination for the Government's convenience. TheGovernment reserves the right to terminate this contract, orany part hereof, for its sole convenience. In the event of suchtermination, the Contractor shall immediately stop all workhereunder and shall immediately cause any and all of its sup-pliers and subcontractors to cease work. Subject to the termsof this contract, the Contractor shall be paid a percentage of

the contract price reflecting the percentage of the work per-formed prior to the notice of termination, plus reasonablecharges that the Contractor can demonstrate to the satisfactionof the Government, using its standard record keeping system,have resulted from the termination. The Contractor shall notbe required to comply with the cost accounting standards orcontract cost principles for this purpose. This paragraph doesnot give the Government any right to audit the Contractor’srecords. The Contractor shall not be paid for any work per-formed or costs incurred that reasonably could have beenavoided.

(g) Termination for cause. The Government may terminatethis contract, or any part hereof, for cause in the event of anydefault by the Contractor, or if the Contractor fails to complywith any contract terms and conditions, or fails to provide theGovernment, upon request, with adequate assurances offuture performance. In the event of termination for cause, theGovernment shall not be liable to the Contractor for anyamount for supplies or services not accepted, and the Contrac-tor shall be liable to the Government for any and all rights andremedies provided by law. If it is determined that the Govern-ment improperly terminated this contract for default, such ter-mination shall be deemed a termination for convenience.

(h) Warranty. The Contractor warrants and implies that theitems delivered hereunder are merchantable and fit for use forthe particular purpose described in this contract.

(End of clause)



52.2-139

“Cost of components” means—(3) For components purchased by the Contractor, the

acquisition cost, including transportation costs to the place ofincorporation into the end product (whether or not such costsare paid to a domestic firm), and any applicable duty (whetheror not a duty-free entry certificate is issued); or

(4) For components manufactured by the Contractor, allcosts associated with the manufacture of the component,including transportation costs as described in paragraph (1) ofthis definition, plus allocable overhead costs, but excludingprofit. Cost of components does not include any costs associ-ated with the manufacture of the end product.

“Domestic end product” means—(1) An unmanufactured end product mined or produced

in the United States;(2) An end product manufactured in the United States,

if—(i) The cost of its components mined, produced, or

manufactured in the United States exceeds 50 percent of thecost of all its components. Components of foreign origin ofthe same class or kind as those that the agency determines arenot mined, produced, or manufactured in sufficient and rea-sonably available commercial quantities of a satisfactoryquality are treated as domestic. Scrap generated, collected,and prepared for processing in the United States is considereddomestic; or

(ii) The end product is a COTS item.“End product” means those articles, materials, and sup-

plies to be acquired under the contract for public use.“Foreign end product” means an end product other than a

domestic end product.“United States” means the 50 States, the District of Colum-

bia, and outlying areas.(b) The Buy American Act (41 U.S.C. 10a - 10d) provides

a preference for domestic end products for supplies acquiredfor use in the United States. In accordance with41 U.S.C. 431, the component test of the Buy American Actis waived for an end product that is a COTS item (See12.505(a)(1)).

(c) Offerors may obtain from the Contracting Officer a listof foreign articles that the Contracting Officer will treat asdomestic for this contract.

(d) The Contractor shall deliver only domestic end prod-ucts except to the extent that it specified delivery of foreignend products in the provision of the solicitation entitled “BuyAmerican Act Certificate.”

(End of clause)

52.225-2 Buy American Act Certificate.As prescribed in 25.1101(a)(2), insert the following

provision:

BUY AMERICAN ACT CERTIFICATE (FEB 2009)

(a) The offeror certifies that each end product, except thoselisted in paragraph (b) of this provision, is a domestic endproduct and that for other than COTS items, the offeror hasconsidered components of unknown origin to have beenmined, produced, or manufactured outside the United States.The offeror shall list as foreign end products those end prod-ucts manufactured in the United States that do not qualify asdomestic end products, i.e., an end product that is not a COTSitem and does not meet the component test in paragraph (2) ofthe definition of “domestic end product.” The terms “com-mercially available off-the-shelf (COTS) item,” “compo-nent,” “domestic end product,” “end product,” “foreign endproduct,” and “United States” are defined in the clause of thissolicitation entitled “Buy American Act—Supplies.”

(b) Foreign End Products:

[List as necessary]

(c) The Government will evaluate offers in accordancewith the policies and procedures of Part 25 of the FederalAcquisition Regulation.

(End of provision)

52.225-3 Buy American Act—Free Trade Agreements—Israeli Trade Act.As prescribed in 25.1101(b)(1)(i), insert the following

clause:

BUY AMERICAN ACT—FREE TRADE AGREEMENTS—ISRAELI TRADE ACT (FEB 2009)

(a) Definitions. As used in this clause—“Bahrainian or Moroccan end product” means an article

that—(1) Is wholly the growth, product, or manufacture of

Bahrain or Morocco ; or(2) In the case of an article that consists in whole or in

part of materials from another country, has been substantiallytransformed in Bahrain or Morocco into a new and differentarticle of commerce with a name, character, or use distinctfrom that of the article or articles from which it was trans-formed. The term refers to a product offered for purchaseunder a supply contract, but for purposes of calculating thevalue of the end product includes services (except transporta-tion services) incidental to the article, provided that the valueof those incidental services does not exceed that of the articleitself.

LINE ITEM NO. COUNTRY OF ORIGIN______________ _______________________________ _______________________________ _________________

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52.2-140

“Commercially available off-the-shelf (COTS) item”—(1) Means any item of supply (including construction

material) that is—(i) A commercial item (as defined in paragraph (1) of

the definition at FAR 2.101);(ii) Sold in substantial quantities in the commercial

marketplace; and(iii) Offered to the Government, under a contract or

subcontract at any tier, without modification, in the same formin which it is sold in the commercial marketplace; and

(2) Does not include bulk cargo, as defined in section 3of the Shipping Act of 1984 ( 46 U.S.C. App. 1702), such asagricultural products and petroleum products.

“Component” means an article, material, or supply incor-porated directly into an end product.


acquisition cost, including transportation costs to the place ofincorporation into the end product (whether or not such costsare paid to a domestic firm), and any applicable duty (whetheror not a duty-free entry certificate is issued); or

(4) For components manufactured by the Contractor, allcosts associated with the manufacture of the component,including transportation costs as described in paragraph (1) ofthis definition, plus allocable overhead costs, but excludingprofit. Cost of components does not include any costs associ-ated with the manufacture of the end product.

“Domestic end product” means—(1) An unmanufactured end product mined or produced

in the United States;(2) An end product manufactured in the United States,

if—(i) The cost of its components mined, produced, or

manufactured in the United States exceeds 50 percent of thecost of all its components. Components of foreign origin ofthe same class or kind as those that the agency determines arenot mined, produced, or manufactured in sufficient and rea-sonably available commercial quantities of a satisfactoryquality are treated as domestic. Scrap generated, collected,and prepared for processing in the United States is considereddomestic; or

(ii) The end product is a COTS item.“End product” means those articles, materials, and sup-

plies to be acquired under the contract for public use.“Foreign end product” means an end product other than a

domestic end product.“Free Trade Agreement country” means Australia, Bahr-

ain, Canada, Chile, El Salvador, Dominican Republic, Guate-mala, Honduras, Mexico, Morocco, Nicaragua, or Singapore.

“Free Trade Agreement country end product” means anarticle that—

(1) Is wholly the growth, product, or manufacture of aFree Trade Agreement country; or

(2) In the case of an article that consists in whole or inpart of materials from another country, has been substantiallytransformed in a Free Trade Agreement country into a newand different article of commerce with a name, character, oruse distinct from that of the article or articles from which itwas transformed. The term refers to a product offered for pur-chase under a supply contract, but for purposes of calculatingthe value of the end product includes services (except trans-portation services) incidental to the article, provided that thevalue of those incidental services does not exceed that of thearticle itself.

“Israeli end product” means an article that—(1) Is wholly the growth, product, or manufacture of

Israel; or(2) In the case of an article that consists in whole or in

part of materials from another country, has been substantiallytransformed in Israel into a new and different article of com-merce with a name, character, or use distinct from that of thearticle or articles from which it was transformed.

“United States” means the 50 States, the District of Colum-bia, and outlying areas.

(b) Components of foreign origin. Offerors may obtainfrom the Contracting Officer a list of foreign articles that theContracting Officer will treat as domestic for this contract.

(c) Delivery of end products. The Buy American Act(41 U.S.C. 10a - 10d) provides a preference for domestic endproducts for supplies acquired for use in the United States. Inaccordance with 41 U.S.C. 431, the component test of the BuyAmerican Act is waived for an end product that is a COTSitem (See 12.505(a)(1)). In addition, the Contracting Officerhas determined that FTAs (except the Bahrain and MoroccoFTAs) and the Israeli Trade Act apply to this acquisition.Unless otherwise specified, these trade agreements apply toall items in the Schedule. The Contractor shall deliver underthis contract only domestic end products except to the extentthat, in its offer, it specified delivery of foreign end productsin the provision entitled “Buy American Act—Free TradeAgreements—Israeli Trade Act Certificate.” If the Contractorspecified in its offer that the Contractor would supply a FreeTrade Agreement country end product (other than a Bahrai-nian or Moroccan end product) or an Israeli end product, thenthe Contractor shall supply a Free Trade Agreement countryend product (other than a Bahrainian or Moroccan end prod-uct), an Israeli end product or, at the Contractor’s option, adomestic end product.

Alternate I (Jan 2004). As prescribed in 25.1101(b)(1)(ii),add the following definition to paragraph (a) of the basicclause, and substitute the following paragraph (c) forparagraph (c) of the basic clause:

“Canadian end product” means an article that—

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52.2-145

52.225-9 Buy American Act—Construction Materials.As prescribed in 25.1102(a), insert the following clause:

BUY AMERICAN ACT—CONSTRUCTION MATERIALS (FEB 2009)

(a) Definitions. As used in this clause—“Commercially available off-the-shelf (COTS) item”—

(1) Means any item of supply (including constructionmaterial) that is—

(i) A commercial item (as defined in paragraph (1) ofthe definition at FAR 2.101);

(ii) Sold in substantial quantities in the commercialmarketplace; and

(iii) Offered to the Government, under a contract orsubcontract at any tier, without modification, in the same formin which it is sold in the commercial marketplace; and


“Component” means an article, material, or supply incor-porated directly into a construction material.

“Construction material” means an article, material, or sup-ply brought to the construction site by the Contractor or a sub-contractor for incorporation into the building or work. Theterm also includes an item brought to the site preassembledfrom articles, materials, or supplies. However, emergency lifesafety systems, such as emergency lighting, fire alarm, andaudio evacuation systems, that are discrete systems incorpo-rated into a public building or work and that are produced ascomplete systems, are evaluated as a single and distinct con-struction material regardless of when or how the individualparts or components of those systems are delivered to the con-struction site. Materials purchased directly by the Govern-ment are supplies, not construction material.


acquisition cost, including transportation costs to the place ofincorporation into the construction material (whether or notsuch costs are paid to a domestic firm), and any applicableduty (whether or not a duty-free entry certificate is issued); or

(4) For components manufactured by the Contractor, allcosts associated with the manufacture of the component,including transportation costs as described in paragraph (1) ofthis definition, plus allocable overhead costs, but excludingprofit. Cost of components does not include any costs associ-ated with the manufacture of the construction material.

“Domestic construction material” means—(1) An unmanufactured construction material mined or

produced in the United States;(2) A construction material manufactured in the United

States, if—(i) The cost of its components mined, produced, or

manufactured in the United States exceeds 50 percent of the

cost of all its components. Components of foreign origin ofthe same class or kind for which nonavailability determina-tions have been made are treated as domestic; or

(ii) The construction material is a COTS item.“Foreign construction material” means a construction

material other than a domestic construction material.“United States” means the 50 States, the District of Colum-

bia, and outlying areas.(b) Domestic preference. (1) This clause implements the

Buy American Act (41 U.S.C. 10a - 10d) by providing a pref-erence for domestic construction material. In accordance with41 U.S.C. 431, the component test of the Buy American Actis waived for construction material that is a COTS item (SeeFAR 12.505(a)(2)). The Contractor shall use only domesticconstruction material in performing this contract, except asprovided in paragraphs (b)(2) and (b)(3) of this clause.

(2) This requirement does not apply to the constructionmaterial or components listed by the Government as follows:________________________________________________[Contracting Officer to list applicable excepted materials orindicate “none”]

(3) The Contracting Officer may add other foreign con-struction material to the list in paragraph (b)(2) of this clauseif the Government determines that—

(i) The cost of domestic construction material wouldbe unreasonable. The cost of a particular domestic construc-tion material subject to the requirements of the Buy AmericanAct is unreasonable when the cost of such material exceedsthe cost of foreign material by more than 6 percent;

(ii) The application of the restriction of the BuyAmerican Act to a particular construction material would beimpracticable or inconsistent with the public interest; or

(iii) The construction material is not mined, pro-duced, or manufactured in the United States in sufficient andreasonably available commercial quantities of a satisfactoryquality.

(c) Request for determination of inapplicability of the BuyAmerican Act. (1)(i) Any Contractor request to use foreignconstruction material in accordance with paragraph (b)(3) ofthis clause shall include adequate information for Govern-ment evaluation of the request, including—

(A) A description of the foreign and domesticconstruction materials;

(B) Unit of measure;(C) Quantity;(D) Price;(E) Time of delivery or availability;(F) Location of the construction project;(G) Name and address of the proposed supplier;

and(H) A detailed justification of the reason for use

of foreign construction materials cited in accordance withparagraph (b)(3) of this clause.

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52.2-146

(ii) A request based on unreasonable cost shallinclude a reasonable survey of the market and a completedprice comparison table in the format in paragraph (d) of thisclause.

(iii) The price of construction material shall includeall delivery costs to the construction site and any applicableduty (whether or not a duty-free certificate may be issued).

(iv) Any Contractor request for a determination sub-mitted after contract award shall explain why the Contractorcould not reasonably foresee the need for such determinationand could not have requested the determination before con-tract award. If the Contractor does not submit a satisfactoryexplanation, the Contracting Officer need not make adetermination.

(2) If the Government determines after contract awardthat an exception to the Buy American Act applies and the

Contracting Officer and the Contractor negotiate adequateconsideration, the Contracting Officer will modify the con-tract to allow use of the foreign construction material. How-ever, when the basis for the exception is the unreasonableprice of a domestic construction material, adequate consider-ation is not less than the differential established inparagraph (b)(3)(i) of this clause.

(3) Unless the Government determines that an excep-tion to the Buy American Act applies, use of foreign construc-tion material is noncompliant with the Buy American Act.

(d) Data. To permit evaluation of requests underparagraph (c) of this clause based on unreasonable cost, theContractor shall include the following information and anyapplicable supporting data based on the survey of suppliers:

52.225-10 Notice of Buy American Act Requirement—Construction Materials.As prescribed in 25.1102(b)(1), insert the following

provision:

NOTICE OF BUY AMERICAN ACT REQUIREMENT—CONSTRUCTION MATERIALS (FEB 2009)

(a) Definitions. “Commercially available off-the-shelf(COTS) item,” “construction material,” “domestic construc-tion material,” and “foreign construction material,” as used inthis provision, are defined in the clause of this solicitationentitled “Buy American Act—Construction Materials” (Fed-eral Acquisition Regulation (FAR) clause 52.225-9).

(b) Requests for determinations of inapplicability. An off-eror requesting a determination regarding the inapplicabilityof the Buy American Act should submit the request to theContracting Officer in time to allow a determination beforesubmission of offers. The offeror shall include the informationand applicable supporting data required by paragraphs (c) and(d) of the clause at FAR 52.225-9 in the request. If an offerorhas not requested a determination regarding the inapplicabil-ity of the Buy American Act before submitting its offer, or has

not received a response to a previous request, the offeror shallinclude the information and supporting data in the offer.

(c) Evaluation of offers. (1) The Government will evaluatean offer requesting exception to the requirements of the BuyAmerican Act, based on claimed unreasonable cost of domes-tic construction material, by adding to the offered price theappropriate percentage of the cost of such foreign construc-tion material, as specified in paragraph (b)(3)(i) of the clauseat FAR 52.225-9.

(2) If evaluation results in a tie between an offeror thatrequested the substitution of foreign construction materialbased on unreasonable cost and an offeror that did not requestan exception, the Contracting Officer will award to the offerorthat did not request an exception based on unreasonable cost.

(d) Alternate offers. (1) When an offer includes foreignconstruction material not listed by the Government in thissolicitation in paragraph (b)(2) of the clause at FAR 52.225-9,the offeror also may submit an alternate offer based on use ofequivalent domestic construction material.

(2) If an alternate offer is submitted, the offeror shallsubmit a separate Standard Form 1442 for the alternate offer,and a separate price comparison table prepared in accordancewith paragraphs (c) and (d) of the clause at FAR 52.225-9 for

FOREIGN AND DOMESTIC CONSTRUCTION MATERIALS PRICE COMPARISONConstruction Material Description Unit of Measure Quantity Price

(Dollars)*Item 1:Foreign construction material _______ _______ _______Domestic construction material _______ _______ _______

Item 2: _______ _______ _______Foreign construction material _______ _______ _______Domestic construction material

[List name, address, telephone number, and contact for suppliers surveyed. Attach copy of response; if oral, attach summary.][Include other applicable supporting information.][* Include all delivery costs to the construction site and any applicable duty (whether or not a duty-free entry certificate is issued).]

FAC 2005–30 FEBRUARY 17, 2009



52.2-147

the offer that is based on the use of any foreign constructionmaterial for which the Government has not yet determined anexception applies.

(3) If the Government determines that a particularexception requested in accordance with paragraph (c) of theclause at FAR 52.225-9 does not apply, the Government willevaluate only those offers based on use of the equivalentdomestic construction material, and the offeror shall berequired to furnish such domestic construction material. Anoffer based on use of the foreign construction material forwhich an exception was requested—

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

(ii) May be accepted if revised during negotiations.

(End of provision)

Alternate I (May 2002). As prescribed in 25.1102(b)(2),substitute the following paragraph (b) for paragraph (b) of thebasic provision:

(b) Requests for determinations of inapplicability. An off-eror requesting a determination regarding the inapplicability ofthe Buy American Act shall submit the request with its offer,including the information and applicable supporting datarequired by paragraphs (c) and (d) of the clause atFAR 52.225-9.

52.225-11 Buy American Act—Construction Materials under Trade Agreements.As prescribed in 25.1102(c), insert the following clause:

BUY AMERICAN ACT—CONSTRUCTION MATERIALS UNDER TRADE AGREEMENTS (FEB 2009)

(a) Definitions. As used in this clause—“Caribbean Basin country construction material” means a

construction material that—(1) Is wholly the growth, product, or manufacture of a

Caribbean Basin country; or(2) In the case of a construction material that consists in

whole or in part of materials from another country, has beensubstantially transformed in a Caribbean Basin country into anew and different construction material distinct from thematerials from which it was transformed.

“Commercially available off-the-shelf (COTS) item”—(1) Means any item of supply (including construction

material) that is—(i) A commercial item (as defined in paragraph (1) of

the definition at FAR 2.101);(ii) Sold in substantial quantities in the commercial

marketplace; and(iii) Offered to the Government, under a contract or

subcontract at any tier, without modification, in the same formin which it is sold in the commercial marketplace; and


“Component” means an article, material, or supply incor-porated directly into a construction material.

“Construction material” means an article, material, or sup-ply brought to the construction site by the Contractor or sub-contractor for incorporation into the building or work. Theterm also includes an item brought to the site preassembledfrom articles, materials, or supplies. However, emergency lifesafety systems, such as emergency lighting, fire alarm, andaudio evacuation systems, that are discrete systems incorpo-rated into a public building or work and that are produced ascomplete systems, are evaluated as a single and distinct con-struction material regardless of when or how the individualparts or components of those systems are delivered to the con-struction site. Materials purchased directly by the Govern-ment are supplies, not construction material.


acquisition cost, including transportation costs to the place ofincorporation into the construction material (whether or notsuch costs are paid to a domestic firm), and any applicableduty (whether or not a duty-free entry certificate is issued); or

(2) For components manufactured by the Contractor, allcosts associated with the manufacture of the component,including transportation costs as described in paragraph (1) ofthis definition, plus allocable overhead costs, but excludingprofit. Cost of components does not include any costs associ-ated with the manufacture of the construction material.

“Designated country” means any of the followingcountries:

(1) A World Trade Organization Government Procure-ment Agreement country (Aruba, Austria, Belgium, Bulgaria,Canada, Cyprus, Czech Republic, Denmark, Estonia, Finland,France, Germany, Greece, Hong Kong, Hungary, Iceland, Ire-land, Israel, Italy, Japan, Korea (Republic of), Latvia, Liecht-enstein, Lithuania, Luxembourg, Malta, Netherlands,Norway, Poland, Portugal, Romania, Singapore, SlovakRepublic, Slovenia, Spain, Sweden, Switzerland, or UnitedKingdom);

(2) A Free Trade Agreement country (Australia, Bahr-ain, Canada, Chile, Dominican Republic, El Salvador, Guate-mala, Honduras, Mexico, Morocco, Nicaragua, orSingapore);

(3) A least developed country (Afghanistan, Angola,Bangladesh, Benin, Bhutan, Burkina Faso, Burundi, Cambo-dia, Cape Verde, Central African Republic, Chad, Comoros,Democratic Republic of Congo, Djibouti, East Timor, Equa-torial Guinea, Eritrea, Ethiopia, Gambia, Guinea, Guinea-Bis-sau, Haiti, Kiribati, Laos, Lesotho, Madagascar, Malawi,Maldives, Mali, Mauritania, Mozambique, Nepal, Niger,Rwanda, Samoa, Sao Tome and Principe, Senegal, Sierra

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52.2-148

Leone, Solomon Islands, Somalia, Tanzania, Togo, Tuvalu,Uganda, Vanuatu, Yemen, or Zambia); or

(4) A Caribbean Basin country (Antigua and Barbuda,Aruba, Bahamas, Barbados, Belize, British Virgin Islands,Costa Rica, Dominica, Grenada, Guyana, Haiti, Jamaica,Montserrat, Netherlands Antilles, St. Kitts and Nevis, St.Lucia, St. Vincent and the Grenadines, or Trinidad andTobago).

“Designated country construction material” means a con-struction material that is a WTO GPA country constructionmaterial, an FTA country construction material, a least devel-oped country construction material, or a Caribbean Basincountry construction material.

“Domestic construction material” means—(1) An unmanufactured construction material mined or

produced in the United States;(2) A construction material manufactured in the United

States, if—(i) The cost of its components mined, produced, or

manufactured in the United States exceeds 50 percent of thecost of all its components. Components of foreign origin ofthe same class or kind for which nonavailability determina-tions have been made are treated as domestic; or

(ii) The construction material is a COTS item.“Foreign construction material” means a construction

material other than a domestic construction material.“Free Trade Agreement country construction material”

means a construction material that—(1) Is wholly the growth, product, or manufacture of a

Free Trade Agreement (FTA) country; or(2) In the case of a construction material that consists in

whole or in part of materials from another country, has beensubstantially transformed in a FTA country into a new and d

federal acquisition circular 2005-30...federal acquisition circular january 15, 2009 number 2005-30...

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