PART 9

CONTRACTING WITH FOREIGN BUSINESSES

# Table of contents

9.1 BUY AMERICAN ACT - SUPPLIES. [1](#buy-american-act---supplies.)

9.1.1 Policy. [1](#policy.)

9.1.2 Definitions. [2](#definitions.)

9.1.3 Acquisition of Civil Aircraft and Related Articles.
[2](#acquisition-of-civil-aircraft-and-related-articles.)

9.1.4 Evaluation Procedure. [2](#evaluation-procedure.)

9.1.5 Reserved. [4](#reserved.)

9.1.6 Clause Usage Prescriptions. [4](#clause-usage-prescriptions.)

9.2 BUY AMERICAN ACT - CONSTRUCTION MATERIALS.
[5](#__RefHeading___Toc430784927)

9.2.1 Policy. [5](#policy.-1)

9.2.2 Definitions. [5](#definitions.-1)

9.2.3 Evaluation Procedures. [6](#evaluation-procedures.)

9.2.4 Clause Usage Prescriptions. [6](#clause-usage-prescriptions.-1)

9.3 ADDITIONAL FOREIGN ACQUISITION POLICIES.
[7](#__RefHeading___Toc430784932)

9.3.1 Foreign Shipments by Sea. [7](#foreign-shipments-by-sea.)

9.3.2 Restricted Foreign Purchases. [7](#restricted-foreign-purchases.)

9.3.3 NAFTA Patent Notification Requirements.
[7](#nafta-patent-notification-requirements.)

9.3.4 Services. [7](#services.)

9.4 APPLICATION OF SANCTIONS TO EU FIRMS.
[8](#application-of-sanctions-to-eu-firms.)

9.4.1 Sanctioned Member States of the EU.
[8](#sanctioned-member-states-of-the-eu.)

9.4.1.1 Sanctioned Supplies, Services and Construction Services.
[8](#sanctioned-supplies-services-and-construction-services.)

9.4.1.2 HCA Authority to Exempt Certain Purchases.
[8](#hca-authority-to-exempt-certain-purchases.)

9.4. 3 Non-Sanctioned Member States of the EU.
[9](#non-sanctioned-member-states-of-the-eu.)

9.50 TEXT OF CLAUSES. [9](#text-of-clauses.)

### 9.1 BUY AMERICAN ACT - SUPPLIES.

***INFORMATION:*** This subpart implements the Buy American Act (41
U.S.C. 10a et seq.) and obligations of the United States under
agreements regarding government procurement, which were approved in the
North American Free Trade Implementation Act (19 U.S.C. 3301 et seq.),
the Uruguay Round Agreements Act (19 U.S.C. 3501 et seq.), and under
Executive Order 10582, as amended. It applies to supply contracts and to
the supply portion of contracts for services that involve the furnishing
of supplies. However, see 9.4 for special application of Buy American
Act differentials and other limits placed on firms from sanctioned EU
member states.

#### 9.1.1 Policy.

\(a\) The Buy American Act requires that only domestic end products be
acquired for public use, except articles, material and supplies \--

\(1\) Where award is based on price only and the cost would be
unreasonable after application of the differentials in 9.1.4(a)(1) and
(2);

\(2\) For which the HCA determines that domestic preference would be
inconsistent with the public interest;

\(3\) That are not mined, produced, or manufactured in the United States
in sufficient and reasonably available commercial quantities of a
satisfactory quality.

\(b\) The Buy American Act does not apply to the purchase of supplies
that is subject to Chapter 10 of the North American Free Trade Agreement
or to the Agreement on Government Procurement.

#### 9.1.2 Definitions.

\"Components\" means those articles, materials, and supplies
incorporated directly into the end products.

\"Domestic end product\" means;

\(a\) An unmanufactured end product mined or produced in the United
States, or;

\(b\) An end product manufactured in the United States, if the cost of
its components mined, produced, or manufactured in the United States
exceeds 50 percent of the cost of all its components. (In determining
whether an end product is domestic, only the end product and its
components shall be considered.) The cost of each component includes
transportation costs to the place of incorporation into the end product
and any applicable duty (whether or not a duty-free entry certificate is
issued). Components of foreign origin of the same class or kind for
which determinations have been made in accordance with 9.1.1 (b) and (c)
are treated as domestic.

\"Domestic offer\" means an offered price for a domestic end product,
including transportation to destination.

\"End product\" means those articles, materials and supplies to be
acquired for public use under the contract.

\"Foreign end product\" means an end product other than a domestic end
product.

\"Foreign offer\" means an offered price for a foreign end product,
including transportation to destination and duty (whether or not a
duty-free entry certificate is issued).

#### 9.1.3 Acquisition of Civil Aircraft and Related Articles.

***INFORMATION:*** The U. S. Trade Representative has waived the
application of the Buy American Act to the purchase of civil aircraft
and related articles manufactured in certain countries. See clause 9-2,
Waiver of Buy American Act for Civil Aircraft and Related Articles, for
details. That clause is to be inserted into contracts for aircraft and
related articles.

#### 9.1.4 Evaluation Procedure.

\(a\) The following price differentials shall be computed and used in
the evaluation of domestic and foreign offers. After computation and
addition of the resulting differentials to the offered price of a
domestic end product as a basis for comparison with any foreign offer,
price evaluation shall be considered as otherwise stated in the
solicitation. The offered price of a domestic end product is
unreasonable when the lowest acceptable domestic offer exceeds the
lowest acceptable foreign offer (including duty), by\--

\(1\) More than 6 percent, if the domestic offer is from a large
business concern; or

\(2\) More than 12 percent, if the domestic offer is from a small
business concern.

\(b\) The evaluation in (a) above shall be applied on an item-by-item
basis or to any group of items on which award may be made as
specifically provided by the solicitation.

\(c\) The clause at 9-1, Buy American Certificate, constitutes a
certification by the offeror that each end product, except as noted by
the offeror beneath the certification, is a domestic source end product
as defined by the Buy American Act clause. When an offeror makes no
entry under the certificate and does not otherwise exclude any end
products from the representation and the solicitation also includes the
Buy American Act clause, the offer is regarded as a domestic offer.

\(d\) Where the offeror indicates that it intends to furnish both
foreign and domestic articles, BPA shall apply the appropriate
differential to each item determined to be an end product. BPA evaluates
the purpose of the particular solicitation to determine whether an item
is an end product as distinguished from a component. When the purpose of
the solicitation is to acquire a particular article, material or supply,
that item is an end product. Components are those articles, materials,
or supplies which are directly incorporated in the end product, but
which would not be useful separately for the purpose of the
solicitation. The offeror\'s representations as to components of foreign
origin must be carefully analyzed to assure that the items listed are
components and not end products, as the offeror\'s judgment in these
matters is not controlling. Where the solicitation is oral, the offeror
will be asked about foreign content if any doubt exists as to whether
the product offered is of domestic origin.

\(e\) The origin of a component of a manufactured product will be
considered (for purposes of determining whether an item qualifies as a
domestic source end product) only in those cases where that component is
directly incorporated in the end product by the offeror. The origin of
materials used in domestic components furnished to the offeror by other
manufacturers or producers will not be so considered.

\(f\) Where an offeror fails to identify the origin of the product, and
in the absence of any previous experience with the offeror or
information to the contrary, BPA shall assume that domestic firms intend
to furnish domestic products and that foreign firms intend to furnish
products of foreign origin.

\(g\) Since contracts are awarded based on the evaluated price and not
on the offered price, the applicable Buy American differential shall be
applied only after all other product evaluation factors set forth in the
solicitation have been applied. The Buy American differential shall not
be applied to any domestic end product or BPA-furnished property (such
as transformer oil) or to award evaluation factors such as multiple
award or cost of inspection evaluation factors.

\(h\) In accordance with Chapter 10 of the North American Free Trade
Agreement, which was approved in the North American Free Trade Agreement
Implementation Act, the evaluation in (a) above shall not be applied to
Mexican end products for supply contracts with an estimated purchase
value over \$250,000.

\(i\) In accordance with the Agreement on Government Procurement
approved in the Uruguay Round Agreements Act, the evaluation in (a)
above shall not be applied to end products with an estimated value over
\$250,000 where the end product originates in Aruba, Austria, Belgium,
Denmark, Finland, France, Germany, Greece, Hong Kong, Ireland, Israel,
Italy, Liechtenstein, Luxembourg, Netherlands, Portugal, Republic of
Korea, Singapore, Spain, Sweden, Taiwan, or the United Kingdom. The
evaluation in (a) above shall be applied to end products originating in
all other countries, including Canada, Switzerland, Norway and Japan,
regardless of dollar value.

\(j\) To determine whether the Agreement on Government Procurement or
the North American Free Trade Agreement applies to the purchase of
products by lease, rental, or lease-purchase contract (including
lease-to-ownership, or lease-with-option-to-purchase), the estimated
purchase value shall be calculated as follows:

\(A\) If a fixed-term contract of 12 months or less is contemplated, use
the total estimated value of the purchase;

\(B\) If a fixed-term contract of more than 12 months is contemplated,
use the total estimated value of the purchase plus the estimated
residual value of the leased equipment at the conclusion of the
contemplated term of the contract;

\(C\) If an indefinite-term contract is contemplated, use the estimated
monthly payment multiplied by 48; or

\(D\) If there is any doubt as to the contemplated term of the contract,
use the estimated monthly payment multiplied by 48.

\(k\) If a contemplated purchase includes an option clause, when
calculating the threshold for the application of the Agreement on
Government Procurement or the North American Free Trade Agreement,
include the value of all options.

\(l\) When offers are obtained orally, offerors shall be informed that
if an offer of foreign products is made, the factors in 9.1.4(a) will be
applied.

#### 9.1.5 Reserved.

#### 9.1.6 Clause Usage Prescriptions.

***PROCEDURE:***

The following clauses are to be used when the origin of materials and
supplies is not known. If the CO knows that the offers received will be
all foreign or all domestic products, these clauses need not be used,
but a note should be placed in the file to indicate the nature of the
offers expected.

\(a\) The CO shall insert the provision at 9-1, Buy American
Certificate, in all solicitations for the acquisition of supplies, or
for services involving the furnishing of supplies which are expected to
exceed \$50,000, except those for the purchase of civil aircraft and
related articles (see clause 9-2) and those for purchase of supplies
from Mexico which are expected to exceed \$250,000.

\(b\) The CO shall insert the clause at 9-2, Waiver of Buy American Act
for Civil Aircraft and Related articles, in solicitations for the
acquisition of civil aircraft and related articles.

\(c\) The CO shall insert the clause at 9-3, Buy American Act-Supplies,
in all solicitations and contracts for supplies, or for services
involving the furnishing of supplies which are expected to exceed
\$50,000, except those for the purchase of civil aircraft and related
articles (see clause 9-2) and those for purchase of supplies from Canada
or Mexico which are expected to exceed \$250,000.

\(d\) The CO shall insert the clause at 9-4, Foreign Offers, in
solicitations where foreign firms may submit offers, or offers may be
received that will offer foreign end products and which are expected to
exceed \$50,000, except those for the purchase of civil aircraft and
related articles (see clause 9-2) and those for purchase of supplies
from Canada or Mexico which are expected to exceed \$250,000.

### 9.2 BUY AMERICAN ACT - CONSTRUCTION MATERIALS.

***INFORMATION:*** This subpart implements the Buy American Act (41
U.S.C. 10a et seq.) and obligations of the United States under
agreements regarding government procurement, which were approved in the
North American Free Trade Implementation Act (19 U.S.C. 3301 et seq.)
the Uruguay Round Agreements Act (19 U.S.C. 3501 et seq.), and under
Executive Order 10582, as amended. It applies to contracts for the
construction, alteration, or repair of any public building or public
work in the United States.

#### 9.2.1 Policy.

\(a\) The Buy American Act requires that only domestic construction
materials be used in construction in the United States, except when \--

\(1\) The contract is evaluated as described in 9.1.1(a),

\(2\) The HCA determines that use of a particular domestic construction
material would be impracticable; or

\(3\) The construction material is not mined, produced, or manufactured
in the United States in sufficient and reasonably available commercial
quantities of a satisfactory quality;

\(b\) The Buy American Act does not apply to the purchase of
construction materials that is subject to Chapter 10 of the North
American Free Trade Agreement or to the Agreement on Government
Procurement.

\(c\) When it is determined for any of the reasons stated in this
section that certain foreign construction materials may be used, the
excepted materials shall be listed in the contract.

#### 9.2.2 Definitions.

***INFORMATION:***

\"Components\" means those articles, materials, and supplies
incorporated directly into construction materials.

\"Construction\" means construction, alteration, or repair of any public
building or public work in the United States.

\"Construction materials\" means articles, materials, and supplies
brought to the construction site for incorporation into the building or
work.

\"Domestic construction material\" means:

\(a\) An unmanufactured construction material mined or produced in the
United States, or

\(b\) A construction material manufactured in the United States, if the
cost of its components mined, produced, or manufactured in the United
States exceeds 50 percent of the cost of all its components.

\"Foreign construction material\" means a construction material other
than a domestic construction material.

#### 9.2.3 Evaluation Procedures.

\(a\) Unless the HCA determines otherwise, when the cost of a comparable
domestic construction material exceeds by more than 6 percent the cost
of a foreign construction material included in an offer, using the
domestic construction material would unreasonably increase the cost and
use of a foreign construction material is acceptable. This evaluation
shall be made for each foreign construction material not specifically
excepted by the solicitation.

\(b\) The clause at 9-7, Buy American Act Notice, requires offerors
proposing to use foreign construction materials to provide adequate data
for evaluation under paragraph (a) above, and permits alternative offers
for comparable domestic construction materials at stated prices. When a
foreign construction material is not acceptable under paragraph (a)
above, evaluation of the offer shall proceed on the basis of the stated
price for a comparable domestic construction material, if offered. If
the offer does not state a price for a comparable domestic construction
material, the offer may be rejected.

\(c\) The acceptable offer that remains low after adding (for evaluation
purposes only) 6 percent of the cost of all foreign construction
materials, determined acceptable under paragraph (a) above and, after
considering all other evaluation factors, shall be considered the
successful offer.

\(d\) In making evaluations under this section, the cost of both foreign
and domestic construction material shall include all cost of delivery to
the construction site including offsite storage facilities. The cost of
foreign construction material shall include any applicable duty (whether
or not a duty-free entry certificate is issued).

\(e\) The evaluation in (a) above shall not be applied to offers of: (1)
Mexican construction materials when the estimated value of the
construction contract is \$7,311,000 or more; or (2) Republic of Korea
construction materials when the estimated value of the proposed
construction contract is \$15 million SDRS (converted to U.S. dollars)
or more.

#### 9.2.4 Clause Usage Prescriptions.

***PROCEDURE:***

\(a\) The CO shall insert the clause at 9-5, Buy American Act \--
Construction Materials, in solicitations and contracts which are for
construction which are expected to exceed \$50,000. The clause shall not
be inserted in solicitations and contracts for Mexican construction
materials when the estimated value of the construction contract is
\$7,311,000 or more, or (2) Republic of Korea construction materials
when the estimated value of the proposed construction contract is \$15
million SDRS (converted to U.S. dollars) or more.

\(b\) The CO shall insert the provision at 9-6, Buy American Act
Representations, in solicitations for construction expected to exceed
\$50,000. The clause shall not be inserted in solicitations and
contracts for Mexican construction materials when the estimated value of
the construction contract is \$7,311,000 or more, or (2) Republic of
Korea construction materials when the estimated value of the proposed
construction contract is \$15 million SDRS (converted to U.S. dollars)
or more.

\(c\) The CO shall insert the provision at 9-7, Buy American Act Notice,
in solicitations for construction expected to exceed \$50,000. The
clause shall not be inserted in solicitations and contracts for Mexican
construction materials when the estimated value of the construction
contract is \$7,311,000 or more, or (2) Republic of Korea construction
materials when the estimated value of the proposed construction contract
is \$15 million SDRS (converted to U.S. dollars) or more.

### 9.3 ADDITIONAL FOREIGN ACQUISITION POLICIES.

#### 9.3.1 Foreign Shipments by Sea.

***INFORMATION:*** See Part 14.15, Use of Privately-owned U. S. Flag
Vessels.

#### 9.3.2 Restricted Foreign Purchases.

***POLICY:*** BPA shall not purchase supplies or services which
originate within or were located in or transported from or through
restricted foreign governments or their organizations. Restricted
foreign governments are Cuba, Iran, Iraq, Libya and North Korea.
Questions concerning these restrictions should be referred to the HCA.

#### 9.3.3 NAFTA Patent Notification Requirements.

***INFORMATION:*** See Part 17.2(f) for details of patent notification
requirements for use of a U.S. patent by a NAFTA contractor.

#### 9.3.4 Services.

***PROCEDURE:***

\(a\) The evaluation of offers of: (1) covered services, with an
estimated value over \$250,000; (2) construction services, with an
estimated value over \$7,311,000, when the provider is a company owned
or controlled by citizens of Aruba, Austria, Belgium, Denmark, Finland,
France, Germany, Greece, Hong Kong, Ireland, Israel, Italy,
Liechtenstein, Luxembourg, Netherlands, Portugal, Singapore, Spain,
Sweden, Taiwan, or the United Kingdom; or (3) construction services,
with an estimated value over \$15 million SDRS (converted to U.S.
dollars) when the provider is a company owned or controlled by citizens
of the Republic of Korea shall be in accordance with the Agreement on
Government Procurement approved in the Uruguay Round Agreements Act.

\(b\) The term "covered services" does not include transportation
services, dredging, services purchases in support of military forces
overseas, management and operating contracts of certain government or
privately-owned facilities used for government purposes, including
federally-funded research and development centers, research and
development services, or printing services.

\(c\) The Agreement on Government Procurement does not apply to services
or construction services originating in all other countries, including
Canada, Switzerland, Norway and Japan.

### 9.4 APPLICATION OF SANCTIONS TO EU FIRMS.

***INFORMATION:*** The United States has imposed trade sanctions
pursuant to the Trade Agreements Act, as amended by the Title VII of the
Omnibus Trade and Competitiveness Act of 1988 (19 U.S.C. 2515), with
respect to sanction products, services and construction services. Offers
of sanctioned products, services and construction services shall be
evaluated as indicated below.

#### 9.4.1 Sanctioned Member States of the EU.

***INFORMATION:*** The following members of the European Union (EU) are
subject to the sanctions imposed pursuant to the Trade Agreements Act,
as amended by the Title VII of the Omnibus Trade and Competitiveness Act
of 1988 (19 U.S.C. 2515), with respect to sanction products, services
and construction services: Austria, Belgium, Denmark, France, Ireland,
Italy, Luxembourg, the Netherlands, Sweden, and the United Kingdom.

##### 9.4.1.1 Sanctioned Supplies, Services and Construction Services.

***POLICY:***

\(a\) Where the estimated value of a proposed contract: (1) for supplies
or services (excluding construction services) is less than \$250,000; or
(2) for construction services is less than \$7,311,000, the CO shall not
award a proposed contract to be performed in a sanctioned member state
of the EU, except as authorized by the HCA per 9.4.1.2.. Services
estimated to be less than \$250,000 may be purchased from a sanctioned
member state of the EU, however, if the service is to be performed in
the U.S.

\(b\) Regardless of dollar value of the proposed contract, no proposed
contract for services which are not subject to the Agreement on
Government Procurement shall be awarded where such service is to be
performed in a sanctioned member state of the EU, except as authorized
by the HCA per (d) below. With regard to purchases generally made by
BPA, the Agreement on Government Procurement does not apply to the
purchase of transportation services, dredging, services purchases in
support of certain government or privately-owned facilities used for BPA
purposes, including BPA-funded research and development centers,
research and development services, or printing services.

\(c\) Buy American differentials shall not be applied to the purchase of
supplies from offerors from sanctioned member states which is greater
than \$250,000.

##### 9.4.1.2 HCA Authority to Exempt Certain Purchases.

***POLICY:*** The HCA may, if determined to be in the best business
interests of BPA, authorize the award of a contract or class of
contracts for sanctioned EU end products, services, and construction,
the purchase of which is otherwise prohibited as per 9.4.1.1(a) and (b).
The CO shall provide, in the manner and level of detail as determined by
the HCA, sufficient compelling reasons for granting an exemption, A
record of an HCA approval shall be documented by the CO in the document
of award decision (See 12.8.2) Examples of such purchases the HCA may
authorize include, but are not limited to, repair parts, supplemental
equipment, or purchases where the offeror is the only source.

#### 9.4. 3 Non-Sanctioned Member States of the EU.

***POLICY:*** Non-Sanctioned members of the EU include Germany, Greece,
Spain and Portugal. Purchases of any kind may be made from offerors from
such countries without regard to the evaluation differentials in the Buy
American Act.

### 9.50 TEXT OF CLAUSES.

The following clauses are referred to in Part 9:

Clause 9-1 Buy American Certificate

Clause 9-2 Waiver of Buy American Act for Civil Aircraft and Related
Articles

Clause 9-3 Buy American Act - Supplies

Clause 9-4 Foreign Offers

Clause 9-5 Buy American Act - Construction Materials

Clause 9-6 Buy American Act Representations

Clause 9-7 Buy American Act Notice

######### Clause 9-1 BUY AMERICAN CERTIFICATE (Oct 93)(BPI 9.1.6)

\(a\) The Offeror certifies that each end product, except the end
products listed below, is a domestic end product (as defined in the
clause entitled \"Buy American Act - Supplies\"); and that components of
unknown origin have been considered to have been mined, produced, or
manufactured outside the United States.

+---------+-------------------------------------------------+---------+
|         | [EXCLUDED END PRODUCTS AND COUNTRY OF           |         |
|         | ORIGIN]{.underline}                             |         |
|         |                                                 |         |
|         | (List as necessary)                             |         |
+---------+-------------------------------------------------+---------+
|         | \_\_\_\_\_\_\_                                  |         |
|         | \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\ |         |
|         | _\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_ |         |
+---------+-------------------------------------------------+---------+
|         | \_\_\_\_\_\_\_                                  |         |
|         | \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\ |         |
|         | _\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_ |         |
+---------+-------------------------------------------------+---------+
|         | \_\_\_\_\_\_\_                                  |         |
|         | \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\ |         |
|         | _\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_ |         |
+---------+-------------------------------------------------+---------+
|         |                                                 |         |
+---------+-------------------------------------------------+---------+

\(b\) An Offeror who proposes to furnish domestic source end products
containing components of foreign origin the cost of which exceeds 15
percent of the offered price, shall furnish in the spaces below a
complete list of components of foreign origin in sufficient detail to
clearly identify each.

  ----------- -------------------------------------------------------------------------------------------------------- -----------
              [FOREIGN COMPONENTS AND POINT OF ORIGIN]{.underline}                                                     

              \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_   

              \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_   

              \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_   

                                                                                                                       
  ----------- -------------------------------------------------------------------------------------------------------- -----------

The Offeror represents that the total cost of the above components of
foreign origin, including applicable duty and transportation costs
constitutes percent of the cost of all components to be incorporated in
the end products being furnished. The Offeror agrees to furnish, for the
exclusive use of BPA, such additional information as the Contracting
Officer may request in order to verify the foregoing in evaluating the
offer.

The Offeror agrees that no components of foreign origin, other than
those listed above, will be incorporated in the end products being
furnished without written approval of the Contracting Officer.

\(c\) Where an Offeror fails to complete the representation of foreign
content provision above, and in the absence of any previous experience
with the offeror or information to the contrary, BPA assumes that
domestic firms intend to furnish domestic end products and that foreign
firms intend to furnish products of foreign origin.

(End of clause)

######### Clause 9-2 WAIVER OF BUY AMERICAN ACT FOR CIVIL AIRCRAFT AND RELATED ARTICLES (Sep 98)(BPI 9.1.6)

\(a\) \"Civil aircraft and related articles\", as used in this
provision, means -

\(1\) All aircraft other than aircraft to be purchased for use by the
Department of Defense or the U.S. Coast Guard;

\(2\) The engines (and parts and components for incorporation into the
engines) of these aircraft;

\(3\) Any other parts, components and subassemblies for incorporation
into the aircraft; and

\(4\) Any ground flight simulators, and parts and components of these
simulators, for use with respect to the aircraft, whether used as
original or replacement equipment in the manufacture, repair,
maintenance, rebuilding, modification, or conversion of the aircraft,
and without regard to whether the aircraft or articles receive duty-free
treatment under section 601(a)(2) of the Trade Agreements Act of 1979.

\(b\) The U.S. Trade Representative has waived application of the Buy
American Act to the acquisition of civil aircraft and related articles
(as defined in paragraph (a) above) of countries or instrumentalities
that are parties to the Agreement on Trade in Civil Aircraft. As of
January 1, 1996, those countries and instrumentalities include Canada,
the European Union (Austria, Belgium, Denmark, Finland, France, Germany,
Greece, Ireland, Italy, Luxembourg, the Netherlands, Portugal, Spain,
Sweden, and the United Kingdom), Japan, Norway, Romania, and
Switzerland.

\(c\) For the purpose of this waiver, an article is a product of a
country or instrumentality only if -

\(1\) It is wholly the growth, product, or manufacture of that country
or instrumentality; or

\(2\) In the case of an article that consists in whole or in part of
materials from another country of instrumentality, that it has been
substantially transformed into a new and different article of commerce
with a name, character, or use distinct from that of the article or
articles from which it was so transformed.

\(d\) The waiver is subject to modification or withdrawal by the U.S.
Trade Representative.

(End of clause)

######### Clause 9-3 BUY AMERICAN ACT - SUPPLIES (Sep 98)(BPI 9.1.6)

\(a\) The Buy American Act (41 U.S. Code 10a-d) provides that the
Government give preference to domestic source end products.

\"Components\" means those articles, materials, and supplies, which are
incorporated directly into the end products.

\"End products\" means those articles, materials, and supplies to be
acquired for public use under this contract.

\"Domestic end product\" means (1) an unmanufactured end product mined
or produced in the United States or (2) an end product manufactured in
the United States, if 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 of the same class or kind
as the products referred to in (b) (2) or (3) of this clause shall be
treated as domestic. Scrap generated, collected, and prepared for
processing in the United States is considered domestic.

\(b\) The Contractor shall deliver only domestic end products, except
those

\(1\) That BPA determines are not mined, produced or manufactured in the
United States in sufficient and reasonably available commercial
quantities of a satisfactory quality;

\(2\) For which BPA determines that domestic preference would be
inconsistent with the public interest; or

\(3\) For which BPA determines the cost to be unreasonable.

(The foregoing requirements are administered in accordance with
Executive Order No. 10582, as amended, and Part 9 of the BPI.)

(End of clause)

######### Clause 9-4 FOREIGN OFFERS (Sep 98)(BPI 9.1.6) 

\(a\) Offers proposing to furnish material or equipment produced or
manufactured outside the United States will be considered on an f.o.b.
destination basis only, cleared through U.S. customs and with all import
duties and charges paid.

\(b\) When comparing foreign offers with the low domestic offer under
the Buy American Act, an evaluation differential of six percent will be
added to the price of each foreign end item delivered at destination,
but excluding the price of any additional work to be performed at the
site such as installation or testing; provided that the differential
will be doubled to twelve percent in the event that the low domestic
Offeror qualifies as a small business concern.

(End of clause)

######### Clause 9-5 BUY AMERICAN ACT - CONSTRUCTION MATERIALS (Sep 98)(BPI 9.2.4)

\(a\) Agreement

In accordance with the Buy American Act (41 U.S.C. 10a-10d), and
Executive Order 10582, (as amended), the Contractor agrees that only
domestic construction material will be used (by the Contractor,
subcontractors, materialmen, and suppliers) in the performance of this
contract, except for nondomestic material listed in the contract.

\(b\) Domestic construction material

\"Construction material\" means any article, material, or supply brought
to the construction site for incorporation in the building or work. An
unmanufactured construction material is a \"domestic construction
material\" if it has been mined or produced in the United States. A
manufactured construction material is a \"domestic construction
material\" if it has been manufactured in the United States and if the
cost of its components which have been mined, produced, or manufactured
in the United States exceeds 50 percent of the cost of all its
components. \"Component\" means any article, material, or supply
directly incorporated in a construction material.

\(c\) Domestic component

A component shall be considered to have been \"mined, produced, or
manufactured in the United States\" (regardless of its source in fact)
if the article, material, or supply in which it is incorporated was
manufactured in the United States and the component is of a class or
kind determined by the Government to be not mined, produced, or
manufactured in the United States in sufficient and reasonably available
commercial quantities and of a satisfactory quality.

\(d\) Excluded materials.

The requirements of this clause do not apply to the following raw
material and construction material components:

Antimony, as metal or oxide.

Asbestos, amosite, chrysolite, and crocidolite.

Bauxite.

Cadmium, ores and flue dust.

Calcium cyanamide.

Chrome ore or chromite.

Cobalt, in cathodes, rondelles, or other primary ore and metal forms.

Cork, wood or bark and waste.

Diamonds, industrial, stones and abrasives.

Fibers of the following types: jute, jute burlaps, and sisal.

Graphite, natural, crystalline, crucible grade.

Hemp.

Leather, sheepskin, hair type.

Manganese.

Mica.

Nickel, primary, in ingots, pigs, shots, cathodes, or similar forms;
nickel oxide and nickel salts.

Platinum and related group metals.

Quartz crystals.

Rubber, crude and latex.

Spare and replacement parts for equipment of foreign manufacture, and
for which domestic parts are not available.

(End of clause)

######### Clause 9-6 BUY AMERICAN ACT REPRESENTATIONS (Jul 94)(BPI 9.2.4)

\(a\) Offeror represents that all construction materials to be used will
be domestic materials conforming to the Buy American Act clause except
as noted below:

  -------------------------------------------------------------------------- ---------------------------------- ----------------------------
  [Name of each item of nondomestic material]{.underline}                    [Quantity and Units]{.underline}   [Cost Delivered]{.underline}

                                                                                                                

  \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_   \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_   \_\_\_\_\_\_\_\_\_\_\_\_\_

  \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_   \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_   \_\_\_\_\_\_\_\_\_\_\_\_\_

  \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_   \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_   \_\_\_\_\_\_\_\_\_\_\_\_\_

  \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_   \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_   \_\_\_\_\_\_\_\_\_\_\_\_\_

                                                                                                                

                                                                             Total                              \$ \_\_\_\_\_\_\_\_\_\_
  -------------------------------------------------------------------------- ---------------------------------- ----------------------------

\(b\) The contractor will be limited in the use of nondomestic materials
to those listed above and those specifically exempt from the
requirements of the Buy American Act as listed in clause 9-7,
Buy-American Act Notice. List below the lowest cost of domestic material
comparable to each item of nondomestic material shown above, based upon
offeror\'s canvass of domestic suppliers.

+-----------------------+-----------------------+-----------------------+
| Name of item of       | Quantity & Unit       | Cost Delivered        |
| domestic material     |                       |                       |
| comparable to offered | (Weight, feet,        |                       |
| foreign material      | Number, etc.)         |                       |
+-----------------------+-----------------------+-----------------------+
|                       |                       |                       |
+-----------------------+-----------------------+-----------------------+
| \_\_\_                | \_\_\_                | \_\_\_                |
| \_\_\_\_\_\_\_\_\_\_\ | \_\_\_\_\_\_\_\_\_\_\ | \_\_\_\_\_\_\_\_\_\_\ |
| _\_\_\_\_\_\_\_\_\_\_ | _\_\_\_\_\_\_\_\_\_\_ | _\_\_\_\_\_\_\_\_\_\_ |
+-----------------------+-----------------------+-----------------------+
| \_\_\_                | \_\_\_                | \_\_\_                |
| \_\_\_\_\_\_\_\_\_\_\ | \_\_\_\_\_\_\_\_\_\_\ | \_\_\_\_\_\_\_\_\_\_\ |
| _\_\_\_\_\_\_\_\_\_\_ | _\_\_\_\_\_\_\_\_\_\_ | _\_\_\_\_\_\_\_\_\_\_ |
+-----------------------+-----------------------+-----------------------+
| \_\_\_                | \_\_\_                | \_\_\_                |
| \_\_\_\_\_\_\_\_\_\_\ | \_\_\_\_\_\_\_\_\_\_\ | \_\_\_\_\_\_\_\_\_\_\ |
| _\_\_\_\_\_\_\_\_\_\_ | _\_\_\_\_\_\_\_\_\_\_ | _\_\_\_\_\_\_\_\_\_\_ |
+-----------------------+-----------------------+-----------------------+

\(c\) If nondomestic construction materials are listed above, an
alternate offer may be submitted offering comparable domestic materials.
However, unless the offeror specifically states alternate prices for
specific items of the schedule, based upon use of comparable domestic
materials, the offeror will be evaluated only on the basis of the
foreign materials listed above.

(End of clause)

######### Clause 9-7 BUY AMERICAN ACT NOTICE (Sep 98)(BPI 9.2.4)

\(a\) The Buy American Act (41 U.S.C. 10a-d) generally requires that
only domestic construction material be used in the performance of this
contract (see the clause entitled \"Buy American Act\--Construction
Materials\"). This requirement does not apply to the following
construction materials:

\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

(List excepted material or indicate \"none.\")

\(b\) Offers based on the use of other foreign construction material may
be acceptable for award if the Government determines that\--

\(1\) Comparable domestic construction material in sufficient and
reasonably available commercial quantities, and of a satisfactory
quality, is unavailable, or

\(2\) Use of comparable domestic construction material is impracticable
or would unreasonably increase the cost.

\(c\) When an offer is based on the use of one or more other foreign
construction materials the offer shall include data clearly
demonstrating, for each particular foreign construction material, that
the cost thereof, plus 6 percent, is less than the cost of comparable
domestic construction material. The cost of construction material shall
be computed as including all cost of delivery to the construction site,
and the cost of foreign construction material shall also include any
applicable duty (whether or not a duty-free entry certificate may be
issued).

\(d\) For evaluation purposes, BPA shall add to the offer 6 percent of
the cost of the foreign construction material qualifying under paragraph
(c) above.

\(e\) When offering other foreign construction material, offerors may
also offer, at stated prices, any available comparable domestic
construction material, in order to avoid the possibility that failure of
a foreign construction material to be acceptable under this provision
will cause rejection of the entire offer.

(End of clause)