[Federal Register Volume 69, Number 248 (Tuesday, December 28, 2004)]
[Rules and Regulations]
[Pages 77870-77879]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-28400]


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DEPARTMENT OF DEFENSE

GENERAL SERVICES ADMINISTRATION

NATIONAL AERONAUTICS AND SPACE ADMINISTRATION

48 CFR Parts 5, 6, 9, 12, 14, 17, 22, 25, and 52

[FAC 2001-27; FAR Case 2004-027]
RIN 9000-AK09


Federal Acquisition Regulation; Free Trade Agreements--Australia 
and Morocco

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

ACTION: Interim rule with request for comments.

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

SUMMARY: The Civilian Agency Acquisition Council and the Defense 
Acquisition Regulations Council (Councils) have agreed on an interim 
rule amending the Federal Acquisition Regulation (FAR) to implement new 
Free Trade Agreements with Australia and Morocco as approved by 
Congress (Public Laws 108-286 and 108-302). These Free Trade Agreements 
are scheduled to go into effect January 1, 2005.
    The interim rule also establishes a table of services excluded from 
the coverage of the various trade agreements, corrects the threshold 
for Canadian services, revises the list of Least Developed Countries, 
revises FAR terminology relating to international trade agreements and 
the Trade Agreements Act (TAA), and revises the FAR clauses that 
implement application of the Buy American Act (41 U.S.C. 10a, 10b, 10b-
1, and 10c) and trade agreements to construction material.

DATES: Effective Date: January 1, 2005.
    Comment Date: Interested parties should submit comments to the FAR 
Secretariat at the address shown below on or before February 28, 2005, 
to be considered in the formulation of a final rule.

ADDRESSES: Submit comments identified by FAC 2001-27, FAR case 2004-
027, by any of the following methods:
    <bullet> Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the instructions for submitting comments.
    <bullet> Agency Web site: http://www.acqnet.gov/far/ProposedRules/

[[Page 77871]]

proposed.htm. Click on the FAR case number to submit comments.
    <bullet> E-mail: <a href="/cdn-cgi/l/email-protection#e385829180829086cdd1d3d3d7ced3d1d4a3849082cd848c95"><span class="__cf_email__" data-cfemail="f593948796948690dbc7c5c5c1d8c5c7c2b5928694db929a83">[email protected]</span></a>. Include FAC 2001-27, FAR 
case 2004-027, in the subject line of the message.
    <bullet> Fax: (202) 501-4067.
    <bullet> Mail: General Services Administration, Regulatory 
Secretariat (VIR), 1800 F Street, NW., Room 4035, ATTN: Laurieann 
Duarte, Washington, DC 20405.
    Instructions: Please submit comments only and cite FAC 2001-27, FAR 
case 2004-027, in all correspondence related to this case. All comments 
received will be posted without change to http://www.acqnet.gov/far/ProposedRules/proposed.htm, including any personal information 
provided.

FOR FURTHER INFORMATION CONTACT: The FAR Secretariat at (202) 501-4755, 
for information pertaining to status or publication schedules. For 
clarification of content, contact Ms. Cecelia Davis, Procurement 
Analyst, at (202) 219-0202. Please cite FAC 2001-27, FAR case 2004-027.

SUPPLEMENTARY INFORMATION:

A. Background

    New Free Trade Agreements. This rule amends FAR Part 25 and the 
clauses at 52.212-3, Offeror Representations and Certifications--
Commercial Items, 52.212-5, Contract Terms and Conditions Required to 
Implement Statutes or Executive Orders-- Commercial Items, 52.225-3, 
Buy American Act--Free Trade Agreements--Israeli Trade Act, 52.225-4, 
Buy American Act--Free Trade Agreements--Israeli Trade Act Certificate, 
52.225-5, Trade Agreements, 52.225-6, Trade Agreements Certificate, 
52.225-9, Buy American Act--Construction Materials, and 52.225-11, Buy 
American Act--Construction Materials under Trade Agreements, and 
52.225-12, Notice of Buy American Act Requirement--Construction 
Materials under Trade Agreements, to implement new Free Trade 
Agreements with Australia and Morocco, as approved by Congress (Public 
Laws 108-286 and 108-302). The Free Trade Agreements with Australia and 
Morocco waive the applicability of the Buy American Act for some 
foreign supplies and construction materials from Australia and Morocco, 
and specify procurement procedures designed to ensure fairness, 
applicable to the acquisition of supplies and services.
    Other related revisions.
    <bullet> Table of excluded services. The rule includes a table of 
excluded services to improve clarity.
    <bullet> NAFTA threshold for Canadian services. The rule corrects 
the NAFTA threshold for services from Canada from $25,000 to $58,550 
(FAR 25.402(b)).
    <bullet> Terminology.
    1. The TAA and the WTO Agreement on Government Procurement. The FAR 
currently equates the term ``Trade Agreements Act'' with the Agreement 
on Government Procurement (meaning the World Trade Organization 
Government Procurement Agreement (``WTO GPA'') (see FAR 25.400(a)(1)). 
The Trade Agreements Act (19 U.S.C. 2501 et seq.) (TAA) is not 
synonymous with the WTO GPA. The TAA provides authority for the 
President (designated by Executive Order 12260 of December 31, 1980 to 
the United States Trade Representative (USTR)) to waive discriminatory 
purchasing requirements (such as the Buy American Act), designate 
eligible countries (including least developed countries), and bar 
procurement from non-designated countries. It does not contain 
thresholds or the terms of the various trade agreements. The rule 
substitutes the term ``World Trade Organization Government Procurement 
Agreement'' in all places in the FAR where the term ``Trade Agreements 
Act'' is currently used to mean the WTO GPA.
    2. ``Designated country,'' ``WTO GPA country,'' and ``least 
developed country.'' The list of designated countries at FAR 25.001 is 
currently a combination of WTO members subject to the WTO GPA (WTO GPA 
countries) and certain least developed countries for which the USTR has 
waived discriminatory purchasing requirements, in accordance with 
section 301 of the TAA. The rule redefines ``designated country'' to 
include WTO GPA countries, Free Trade Agreement countries, least 
developed countries, and Caribbean Basin countries. Free Trade 
Agreement countries and Caribbean Basin countries are now also 
designated countries. Each of these terms will retain a separate 
definition, because in some instances, the regulation does not apply to 
all designated countries, but only some of the specific subsets.
    <bullet> FAR clauses that implement application of the Buy American 
Act and trade agreements to construction material.
    1. Caribbean Basin construction material. The Federal Register 
notices issued by the USTR under the Caribbean Basin Trade Initiative 
state that ``products'' of the listed Caribbean Basin countries shall 
continue to be treated as ``eligible products'' (unless excluded from 
duty-free treatment under 19 U.S.C. 2703(b)). To be consistent with the 
statutory definition at 19 U.S.C. 2518(4), this rule modifies the 
definition of ``eligible product'' to include ``construction material'' 
and modifies the construction clauses that implement the trade 
agreements to extend nondiscriminatory treatment to all designated 
country construction material, including Caribbean Basin country 
construction material.
    2. Cost of components. The rule makes a technical correction to the 
definition of ``cost of components'' as contained in the clauses that 
apply Buy American Act and trade agreements to construction material 
(52.225-9, Buy American Act--Construction Materials, and 52.225-11, Buy 
American Act-- Construction Materials under Trade Agreements). When 
applied to components of construction material, the definition must be 
modified in the second paragraph to delete the term ``end product'' and 
replace it with the term ``construction material.'' Note that the 
definition of the term ``component'' in these clauses has already been 
so modified.
    <bullet> Revising the list of Least Developed Countries. The U.S. 
Trade Representative has requested that the list of Least Developed 
Countries (LDC) be revised. These countries are included within the 
definition of ``designated country''. This list has been approved by 
the Trade Policy Staff Committee. The TAA allows USTR (pursuant to 
authority delegated from the President in Executive Order 12260) to 
waive the purchasing prohibition and discriminatory purchasing 
requirements for LDCs. As defined in 19 U.S.C. 2518, a ``least 
developed country'' is ``any country on the United Nations General 
Assembly list of least developed countries.'' The countries designated 
as eligible countries under the TAA are listed in the FAR to inform 
contracting officers of countries that are eligible to participate in 
Federal Government procurement. Botswana is no longer designated as an 
LDC by the United Nations. Further, the following countries have been 
designated as LDCs by the United Nations, but are not currently 
included in the FAR list: Afghanistan; Angola; Burma (Myanmar); 
Cambodia; Democratic Republic of Congo; Eritrea; Ethiopia; Laos; 
Liberia; Madagascar; Mauritania; Senegal; Solomon Islands; Sudan; East 
Timor; and Zambia. Therefore, the USTR has removed Botswana and 
included the additional LDCs, with the exceptions of Burma (Myanmar), 
Liberia and Sudan, which are subject to United States economic 
sanctions.
    This is not a significant regulatory action and, therefore, was not 
subject to review under Section 6(b) of Executive Order 12866, 
Regulatory Planning and

[[Page 77872]]

Review, dated September 30, 1993. This rule is not a major rule under 5 
U.S.C. 804.

B. Regulatory Flexibility Act

    The interim rule is not expected to have a significant economic 
impact on a substantial number of small entities within the meaning of 
the Regulatory Flexibility Act, 5 U.S.C. 601, et seq. Although the rule 
opens up Government procurement to the products of Australia and 
Morocco and Caribbean Basin country construction material, the Councils 
do not anticipate any significant economic impact on U.S. small 
businesses. The Department of Defense only applies the trade agreements 
to the non-defense items listed at DFARS 225.401-70, and acquisitions 
that are set aside for small businesses are exempt. Therefore, an 
Initial Regulatory Flexibility Analysis has not been performed. The 
Councils will consider comments from small entities concerning the 
affected FAR Parts 5, 6, 9, 12, 14, 17, 22, 25, and 52 in accordance 
with 5 U.S.C. 610. Interested parties must submit such comments 
separately and should cite 5 U.S.C 601, et seq. (FAC 2001-27, FAR case 
2004-027), in correspondence.

C. Paperwork Reduction Act

    The Paperwork Reduction Act does apply; however, these changes to 
the FAR do not impose additional information collection requirements to 
the provisions at FAR 52.212-3, 52.225-4, 52.225-6, and 52.225-11 
regarding the paperwork burdens previously approved under OMB Control 
Numbers 9000-0130, 9000-0025, and 9000-0141. The impact is negligible.

D. Determination To Issue an Interim Rule

    A determination has been made under the authority of the Secretary 
of Defense (DoD), the Administrator of General Services (GSA), and the 
Administrator of the National Aeronautics and Space Administration 
(NASA) that urgent and compelling reasons exist to promulgate this 
interim rule without prior opportunity for public comment. This action 
is necessary because the Free Trade Agreements with Australia and 
Morocco, as approved by Congress (Public Laws 108-286 and 108-302), are 
scheduled to go into effect January 1, 2005. However, pursuant to 
Public Law 98-577 and FAR 1.501, the Councils will consider public 
comments received in response to this interim rule in the formation of 
the final rule.

List of Subjects in 48 CFR Parts 5, 6, 9, 12, 14, 17, 22, 25, and 
52

    Government procurement.

    Dated: December 22, 2004.
Laura Auletta,
Director, Contract Policy Division.

0
Therefore, DoD, GSA, and NASA amend 48 CFR parts 5, 6, 9, 12, 14, 17, 
22, 25, and 52 as set forth below:
0
1. The authority citation for 48 CFR parts 5, 6, 9, 12, 14, 17, 22, 25, 
and 52 is revised to read as follows:

    Authority: 40 U.S.C. 121(c); 10 U.S.C. chapter 137; and 42 
U.S.C. 2473(c).

PART 5--PUBLICIZING CONTRACT ACTIONS

0
2. Amend section 5.202 by revising paragraph (a)(12) to read as 
follows:


5.202  Exceptions.

* * * * *
    (a) * * *
    (12) The proposed contract action is by a Defense agency and the 
proposed contract action will be made and performed outside the United 
States and its outlying areas, and only local sources will be 
solicited. This exception does not apply to proposed contract actions 
covered by the World Trade Organization Government Procurement 
Agreement or a Free Trade Agreement (see Subpart 25.4);
* * * * *


5.203  [Amended]

0
3. Amend section 5.203 in the first sentence of paragraph (h) by 
removing ``subject to the Trade Agreements Act'' and adding ``covered 
by the World Trade Organization Government Procurement Agreement'' in 
its place.

0
4. Amend section 5.301 by revising paragraph (a)(1); and removing from 
paragraph (c) ``subject to the Trade Agreements Act,'' and adding 
``covered by the World Trade Organization Government Procurement 
Agreement or a Free Trade Agreement,'' in its place. The revised text 
reads as follows:


5.301  General.

    (a) * * *
    (1) Covered by the World Trade Organization Government Procurement 
Agreement or a Free Trade Agreement (see Subpart 25.4); or
* * * * *

PART 6--COMPETITION REQUIREMENTS


6.303-1  [Amended]

0
5. Amend section 6.303-1 by removing paragraph (d) and redesignating 
paragraph (e) as paragraph (d).

PART 9--CONTRACTOR QUALIFICATIONS

0
6. Amend section 9.205 by revising paragraph (b) to read as follows:


9.205  Opportunity for qualification before award.

* * * * *
    (b) The activity responsible for establishing a qualification 
requirement must keep any list maintained of those already qualified 
open for inclusion of additional products, manufacturers, or other 
potential sources.

PART 12--ACQUISITION OF COMMERCIAL ITEMS


12.205  [Amended]

0
7. Amend section 12.205 by removing from paragraph (c) ``subject to the 
Trade Agreements Act'' and adding ``covered by the World Trade 
Organization Government Procurement Agreement'' in its place.

PART 14--SEALED BIDDING

0
8. Amend section 14.409-1 by revising the introductory text of 
paragraph (a)(2) to read as follows:


14.409-1  Award of unclassified contracts.

    (a)(1) * * *
    (2) For acquisitions covered by the World Trade Organization 
Government Procurement Agreement or a Free Trade Agreement (see 
25.408(a)(5)), agencies must include in notices given unsuccessful 
bidders from World Trade Organization Government Procurement Agreement 
or Free Trade Agreement countries--
* * * * *

PART 17--SPECIAL CONTRACTING METHODS

0
9. Amend section 17.203 by revising paragraph (h) to read as follows:


17.203  Solicitations.

* * * * *
    (h) Include the value of options in determining if the acquisition 
will exceed the World Trade Organization Government Procurement 
Agreement or Free Trade Agreement thresholds.

PART 22--APPLICATION OF LABOR LAWS TO GOVERNMENT ACQUISITIONS


22.1503  [Amended]

0
10. Amend section 22.1503 by removing from the end of paragraph (b)(4) 
``(see 25.403(b))'' and adding ``(see 25.402(b))'' in its place.

[[Page 77873]]

PART 25--FOREIGN ACQUISITION

0
11. Amend section 25.003 by revising the definitions ``Designated 
country'', ``Designated country end product'', ``Eligible product'', 
and ``Free Trade Agreement country''; and adding the definitions 
``Least developed country'', ``Least developed country end product'', 
``World Trade Organization Government Procurement Agreement (WTO GPA) 
country'', and ``WTO GPA country end product'' to read as follows:


25.003  Definitions.

* * * * *
    Designated country means any of the following countries:
    (1) A World Trade Organization Government Procurement Agreement 
country (Aruba, Austria, Belgium, Canada, Cyprus, Czech Republic, 
Denmark, Estonia, Finland, France, Germany, Greece, Hong Kong, Hungary, 
Iceland, Ireland, Israel, Italy, Japan, Korea (Republic of), Latvia, 
Liechtenstein, Lithuania, Luxembourg, Malta, Netherlands, Norway, 
Poland, Portugal, Singapore, Slovak Republic, Slovenia, Spain, Sweden, 
Switzerland, or United Kingdom);
    (2) A Free Trade Agreement country (Australia, Canada, Chile, 
Mexico, Morocco, or Singapore);
    (3) A least developed country (Afghanistan, Angola, Bangladesh, 
Benin, Bhutan, Burkina Faso, Burundi, Cambodia, Cape Verde, Central 
African Republic, Chad, Comoros, Democratic Republic of Congo, 
Djibouti, East Timor, Equatorial Guinea, Eritrea, Ethiopia, Gambia, 
Guinea, Guinea-Bissau, Haiti, Kiribati, Laos, Lesotho, Madagascar, 
Malawi, Maldives, Mali, Mauritania, Mozambique, Nepal, Niger, Rwanda, 
Samoa, Sao Tome and Principe, Senegal, Sierra 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, 
Dominican Republic, El Salvador, Grenada, Guatemala, Guyana, Haiti, 
Honduras, Jamaica, Montserrat, Netherlands Antilles, Nicaragua, St. 
Kitts and Nevis, St. Lucia, St. Vincent and the Grenadines, or Trinidad 
and Tobago).
    Designated country end product means a WTO GPA country end product, 
an FTA country end product, a least developed country end product, or a 
Caribbean Basin country end product.
* * * * *
    Eligible product means a foreign end product, construction 
material, or service that, due to applicability of a trade agreement to 
a particular acquisition, is not subject to discriminatory treatment.
* * * * *
    Free Trade Agreement country'' means Australia, Canada, Chile, 
Mexico, Morocco, or Singapore.
* * * * *
    Least developed country means any of the following countries: 
Afghanistan, Angola, Bangladesh, Benin, Bhutan, Burkina Faso, Burundi, 
Cambodia, Cape Verde, Central African Republic, Chad, Comoros, 
Democratic Republic of Congo, Djibouti, East Timor, Equatorial Guinea, 
Eritrea, Ethiopia, Gambia, Guinea, Guinea-Bissau, Haiti, Kiribati, 
Laos, Lesotho, Madagascar, Malawi, Maldives, Mali, Mauritania, 
Mozambique, Nepal, Niger, Rwanda, Samoa, Sao Tome and Principe, 
Senegal, Sierra Leone, Solomon Islands, Somalia, Tanzania, Togo, 
Tuvalu, Uganda, Vanuatu, Yemen, or Zambia.
    Least developed country end product means an article that--
    (1) Is wholly the growth, product, or manufacture of a least 
developed country; or
    (2) In the case of an article that consists in whole or in part of 
materials from another country, has been substantially transformed in a 
least developed country 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 transformed. The term refers to a product 
offered for purchase under a supply contract, but for purposes of 
calculating the value of the end product, includes services (except 
transportation services) incidental to the article, provided that the 
value of those incidental services does not exceed that of the article 
itself.
* * * * *
    World Trade Organization Government Procurement Agreement (WTO GPA) 
country means any of the following countries: Aruba, Austria, Belgium, 
Canada, Cyprus, Czech Republic, Denmark, Estonia, Finland, France, 
Germany, Greece, Hong Kong, Hungary, Iceland, Ireland, Israel, Italy, 
Japan, Korea (Republic of), Latvia, Liechtenstein, Lithuania, 
Luxembourg, Malta, Netherlands, Norway, Poland, Portugal, Singapore, 
Slovak Republic, Slovenia, Spain, Sweden, Switzerland, or United 
Kingdom.
    WTO GPA country end product means an article that--
    (1) Is wholly the growth, product, or manufacture of a WTO GPA 
country; or
    (2) In the case of an article that consists in whole or in part of 
materials from another country, has been substantially transformed in a 
WTO GPA country 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 transformed. The term refers to a product offered for 
purchase under a supply contract, but for purposes of calculating the 
value of the end product includes services (except transportation 
services) incidental to the article, provided that the value of those 
incidental services does not exceed that of the article itself.


25.204  [Amended]

0
12. Amend section 25.204 by removing from paragraph (a) ``excepted 
under the Trade Agreements Act or'' and adding ``covered by the WTO GPA 
or a'' in its place.

0
13. Revise section 25.400 to read as follows:


25.400  Scope of subpart.

    (a) This subpart provides policies and procedures applicable to 
acquisitions that are covered by--
    (1) The World Trade Organization Government Procurement Agreement 
(WTO GPA), as approved by Congress in the Uruguay Round Agreements Act 
(Pub. L. 103-465);
    (2) Free Trade Agreements (FTA), consisting of--
    (i) NAFTA (the North American Free Trade Agreement, as approved by 
Congress in the North American Free Trade Agreement Implementation Act 
of 1993 (19 U.S.C. 3301 note));
    (ii) Chile FTA (the United States-Chile Free Trade Agreement, as 
approved by Congress in the United States-Chile Free Trade Agreement 
Implementation Act (Pub. L. 108-77));
    (iii) Singapore FTA (the United States-Singapore Free Trade 
Agreement, as approved by Congress in the United States-Singapore Free 
Trade Agreement Implementation Act (Pub. L. 108-78));
    (iv) Australia FTA (the United States--Australia Free Trade 
Agreement, as approved by Congress in the United States-- Australia 
Free Trade Agreement Implementation Act (Pub. L. 108-286); and
    (v) Morocco FTA (The United States--Morocco Free Trade Agreement, 
as approved by Congress in the United States-- Morocco Free Trade 
Agreement Implementation Act (Pub. L. 108-302);
    (3) The least developed country designation made by the U.S. Trade 
Representative, pursuant to the Trade Agreements Act (19 U.S.C. 
2511(b)(4)), in acquisitions covered by the WTO GPA;

[[Page 77874]]

    (4) The Caribbean Basin Trade Initiative (CBTI) (determination of 
the U.S. Trade Representative that end products or construction 
material granted duty-free entry from countries designated as 
beneficiaries under the Caribbean Basin Economic Recovery Act (19 
U.S.C. 2701, et seq.), with the exception of Panama, must be treated as 
eligible products in acquisitions covered by the WTO GPA);
    (5) The Israeli Trade Act (the U.S.-Israel Free Trade Area 
Agreement, as approved by Congress in the United States-Israel Free 
Trade Area Implementation Act of 1985 (19 U.S.C. 2112 note)); or
    (6) The Agreement on Trade in Civil Aircraft (U.S. Trade 
Representative waiver of the Buy American Act for signatories of the 
Agreement on Trade in Civil Aircraft, as implemented in the Trade 
Agreements Act of 1979 (19 U.S.C. 2513)).
    (b) For application of the trade agreements that are unique to 
individual agencies, see agency regulations.

0
14. Amend section 25.401 by removing from paragraph (a)(2) ``, 
including all services purchased in support of military forces located 
overseas''; removing from paragraph (a)(5) ``(but see 6.303-1(d))''; 
and revising paragraph (b) to read as follows:


25.401  Exceptions.

* * * * *
    (b) In the World Trade Organization Government Procurement 
Agreement (WTO GPA) and each FTA, there is a U.S. schedule that lists 
services that are excluded from that agreement in acquisitions by the 
United States. Acquisitions of the following services are excluded from 
coverage by the U.S. schedule of the WTO GPA or an FTA as indicated in 
this table:

----------------------------------------------------------------------------------------------------------------
                    The service  (Federal
                    Service Codes from the
                   Federal Procurement Data
                 System Product/Service Code      WTO GPA      NAFTA and Chile   Singapore FTA    Australia and
                   Manual are indicated in                           FTA                           Morocco FTA
                     parentheses for some
                          services.)
----------------------------------------------------------------------------------------------------------------
(1)              All services purchased in                 X                X                X                X
                  support of military
                  services overseas..
(2)              (i) Automatic data                        X                X   ...............  ...............
                  processing (ADP)
                  telecommunications and
                  transmission services
                  (D304), except enhance
                  (i.e., value-added)
                  telecommunications
                  services..
                 (ii) ADP teleprocessing and               X                X   ...............  ...............
                  timesharing services
                  (D305), telecommunications
                  network management
                  services (D316), automated
                  news services, data
                  services or other
                  information services
                  (D317), and other ADP and
                  telecommunications
                  services (D399).
                 (iii) Basic                               *                *                X                X
                  telecommunications network
                  services (i.e., voice
                  telephone services, packet-
                  switched data transmission
                  services, circuit-switched
                  data transmission
                  services, telex services,
                  telegraph services,
                  facsimile services, and
                  private leased circuit
                  services, but not
                  information services, as
                  defined in 47 U.S.C.
                  153(20))..
(3)              Dredging...................               X                X                X                X
(4)              (i) Operation and                         X   ...............               X   ...............
                  management contracts of
                  certain Government or
                  privately owned facilities
                  used for Government
                  purposes, including
                  Federally Funded Research
                  and Development Centers.
                 (ii) Operation of all                   * *                X              * *                X
                  Department of Defense,
                  Department of Energy, or
                  the National Aeronautics
                  and Space Administration
                  facilities; and all
                  Government-owned research
                  and development facilities
                  or Government-owned
                  environmental laboratories.
(5)              Research and development...               X                X                X                X
(6)              Transportation services                   X                X                X                X
                  (including launching
                  services, but not
                  including travel agent
                  services--V503).
(7)              Utility services...........               X                X                X                X
(8)              Maintenance, repair,         ...............               X   ...............               X
                  modification, rebuilding
                  and installation of
                  equipment related to ships
                  (J019).
(9)              Nonnuclear ship repair       ...............               X   ...............              X
                  (J998).
----------------------------------------------------------------------------------------------------------------
*Note 1. Acquisitions of the services listed at (2)(iii) of this table are a subset of the excluded services at
  (2)(i) and (ii), and are therefore not covered under the WTO GPA.
**Note 2. Acquisitions of the services listed at (4)(ii) of this table are a subset of the excluded services at
  (4)(i), and are therefore not covered under the WTO GPA.


0
15. Revise section 25.402 to read as follows:


25.402  General.

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

[[Page 77875]]



----------------------------------------------------------------------------------------------------------------
                                                             Supply contract  Service contract    Construction
                      Trade agreement                         (equal to or      (equal to or     contract (equal
                                                               exceeding)        exceeding)     to or exceeding)
----------------------------------------------------------------------------------------------------------------
WTO GPA...................................................          $175,000          $175,000        $6,725,000
FTAs:
    NAFTA:
        --Canada..........................................            25,000            58,550         7,611,532
        --Mexico..........................................            58,550            58,550         7,611,532
    Chile FTA.............................................            58,550            58,550         6,725,000
    Singapore FTA.........................................            58,550            58,550         6,725,000
    Australia FTA.........................................            58,550            58,550         6,725,000
    Morocco FTA...........................................           175,000           175,000         6,725,000
Israeli Trade Act.........................................            50,000  ................  ................
----------------------------------------------------------------------------------------------------------------


0
16. Amend section 25.403 by revising the section heading and paragraphs 
(a), (b)(1) introductory text, (b)(3), and (c)(1) to read as follows:


25.403  World Trade Organization Government Procurement Agreement and 
Free Trade Agreements.

    (a) Eligible products from WTO GPA and FTA countries are entitled 
to the nondiscriminatory treatment specified in 25.402(a)(1). The WTO 
GPA and FTAs specify procurement procedures designed to ensure fairness 
(see 25.408).
    (b) Thresholds. (1) To determine whether the acquisition of 
products by lease, rental, or lease-purchase contract (including lease-
to-ownership, or lease-with-option-to purchase) is covered by the WTO 
GPA or an FTA, calculate the estimated acquisition value as follows:
* * * * *
    (3) If, in any 12-month period, recurring or multiple awards for 
the same type of product or products are anticipated, use the total 
estimated value of these projected awards to determine whether the WTO 
GPA or an FTA applies. Do not divide any acquisition with the intent of 
reducing the estimated value of the acquisition below the dollar 
threshold of the WTO GPA or an FTA.
    (c) Purchase restriction. (1) Under the Trade Agreements Act (19 
U.S.C. 2512), in acquisitions covered by the WTO GPA, acquire only 
U.S.-made or designated country end products or U.S. or designated 
country services, unless offers for such end products or services are 
either not received or are insufficient to fulfill the requirements. 
This purchase restriction does not apply below the WTO GPA threshold 
for supplies and services, even if the acquisition is covered by an 
FTA.


25.405  [Removed]

0
17. Remove section 25.405.


25.404  [Redesignated as 25.405]

0
18. Section 25.404 is redesignated as section 25.405 and revised; and a 
new section 25.404 is added to read as follows:


25.404  Least developed countries.

    For acquisitions covered by the WTO GPA, least developed country 
end products, construction material, and services must be treated as 
eligible products.


25.405  Caribbean Basin Trade Initiative.

    Under the Caribbean Basin Trade Initiative, the United States Trade 
Representative has determined that, for acquisitions covered by the WTO 
GPA, Caribbean Basin country end products, construction material, and 
services must be treated as eligible products.

0
19. Amend section 25.406 by revising the first sentence to read as 
follows:


25.406  Israeli Trade Act.

    Acquisitions of supplies by most agencies are covered by the 
Israeli Trade Act, if the estimated value of the acquisition is $50,000 
or more but does not exceed the WTO GPA threshold for supplies (see 
25.402(b)). * * *

0
20. Amend section 25.408 by revising paragraph (a) introductory text 
and (a)(5) to read as follows:


25.408  Procedures.

    (a) If the WTO GPA or an FTA applies (see 25.401), the contracting 
officer must--
* * * * *
    (5) Provide unsuccessful offerors from WTO GPA or FTA countries 
notice in accordance with 14.409-1 or 15.503.
* * * * *

0
21. Amend section 25.502 by revising the introductory text of paragraph 
(b), paragraphs (b)(1) and (b)(3), and the introductory text of 
paragraph (c) to read as follows:


25.502  Application.

* * * * *
    (b) For acquisitions covered by the WTO GPA (see Subpart 25.4)--
    (1) Consider only offers of U.S.-made or designated country end 
products, unless no offers of such end products were received;
* * * * *
    (3) If there were no offers of U.S.-made or designated country end 
products, make a nonavailability determination (see 25.103(b)(2)) and 
award on the low offer (see 25.403(c)).
    (c) For acquisitions not covered by the WTO GPA, but subject to the 
Buy American Act (an FTA or the Israeli Trade Act also may apply), the 
following applies:
* * * * *

0
22. Amend section 25.503 by revising paragraph (a)(2) to read as 
follows:


25.503  Group offers.

    (a) * * *
    (2) If the acquisition is covered by the WTO GPA and any part of 
the offer consists of items restricted in accordance with 25.403(c).


25.504-2  WTO GPA/Caribbean Basin Trade Initiative/FTAs.

* * * * *
0
23. Revise 25.504-2 section heading to read as set forth above; and 
remove ``Trade Agreement Act applies'' from the first sentence of the 
undesignated paragraph following the table in Example 1 and adding 
``acquisition is covered by the WTO GPA'' in its place.


25.504-3  [Amended]

0
24. Amend section 25.504-3 in paragraphs (b) and (c) by removing from 
the first sentence of the undesignated paragraph following the tables 
in Examples 2 and 3 ``subject to the Trade Agreements Act'' and adding 
``covered by the WTO GPA'' in their place.


25.504-4  [Amended]

0
25. Amend section 25.504-4 in paragraph (a) by removing from the 
paragraph entitled ``Problem'', following the table, ``Trade Agreements 
Act does not apply'' and adding ``acquisition is not covered by the WTO 
GPA'' in its place; and removing ``subject to the Trade Agreements 
Act'' from the last

[[Page 77876]]

paragraph of ``STEP 2'', and adding ``covered by the WTO GPA'' in its 
place.


25.1002  [Amended]

0
26. Amend section 25.1002 in the first sentence of paragraph (a) by 
removing ``Trade Agreements Act'' and adding ``WTO GPA'' in its place.


25.1101  [Amended]

0
27. Amend section 25.1101 by removing from the first sentence of 
paragraph (c)(1) ``Trade Agreements Act applies'' and adding 
``acquisition is covered by the WTO GPA'' in its place.

0
28. Amend section 25.1102 by revising paragraph (c)(1) and the last 
sentence of paragraph (c)(3) to read as follows:


25.1102  Acquisition of construction.

* * * * *
    (c) * * *
    (1) List in paragraph (b)(3) of the clause all foreign construction 
material excepted from the requirements of the Buy American Act, other 
than WTO GPA country, least developed country, or FTA country 
construction material.
* * * * *
    (3) * * * List in paragraph (b)(3) of the clause all foreign 
construction material excepted from the requirements of the Buy 
American Act, other than designated country, or Australian, Chilean, or 
Moroccan construction material.
* * * * *

PART 52--SOLICITATION PROVISIONS AND CONTRACT CLAUSES

0
29. Amend section 52.212-3 by revising paragraphs (g)(1)(ii), 
(g)(4)(i), the first sentence of (g)(4)(ii), and (g)(4)(iii) of the 
provision to read as follows:


52.212-3  Offeror Representations and Certifications--Commercial Items.

* * * * *

Offeror Representations and Certifications--Commercial Items (Jan 2005)

* * * * *
    (g)(1) * * *
    (ii) The offeror certifies that the following supplies are end 
products of Australia, Canada, Chile, Mexico, or Singapore, or 
Israeli end products as defined in the clause of this solicitation 
entitled ``Buy American Act--Free Trade Agreements--Israeli Trade 
Act'':

    End Products of Australia, Canada, Chile, Mexico, or Singapore or
                          Israeli End Products:
 
          Line item No.                               Country of  origin
 
                                   ................  ...................
----------------------------------                  --------------------
                                   ................  ...................
----------------------------------                  --------------------
                                   ................  ...................
----------------------------------                  --------------------
                           [List as necessary]
 

* * * * *
    (4) * * *
    (i) The offeror certifies that each end product, except those 
listed in paragraph (g)(4)(ii) of this provision, is a U.S.-made or 
designated country end product, as defined in the clause of this 
solicitation entitled ``Trade Agreements.''
    (ii) The offeror shall list as other end products those end 
products that are not U.S.-made or designated country end products. 
* * *
    (iii) The Government will evaluate offers in accordance with the 
policies and procedures of FAR Part 25. For line items covered by 
the WTO GPA, the Government will evaluate offers of U.S.-made or 
designated country end products without regard to the restrictions 
of the Buy American Act. The Government will consider for award only 
offers of U.S.-made or designated country end products unless the 
Contracting Officer determines that there are no offers for such 
products or that the offers for such products are insufficient to 
fulfill the requirements of the solicitation.
* * * * *

0
30. Amend section 52.212-5 by--
0
a. Removing from the clause heading ``(Dec 2004)'' and adding ``(Jan 
2005)'' in its place;
0
b. Revising paragraph (b)(24)(i) and (b)(25) to read as follows:


52.212-5  Contract Terms and Conditions Required To Implement Statutes 
or Executive Orders--Commercial Items.

* * * * *

CONTRACT TERMS AND CONDITIONS REQUIRED TO IMPLEMENT STATUTES OR 
EXECUTIVE ORDERS--COMMERCIAL ITEMS (JAN 2005)

    (b) * * *
    (24)(i) 52.225-3, Buy American Act--Free Trade Agreements-- 
Israeli Trade Act (Jan 2005) (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).
* * * * *
    (25) 52.225-5, Trade Agreements (Jan 2005) (19 U.S.C. 2501, et 
seq., 19 U.S.C. 3301 note).
* * * * *

0
31. Amend section 52.225-3--
0
a. By revising the date of the clause to read ``(JAN 2005)'';
0
b. In paragraph (a) of the clause by adding, in alphabetical order, the 
definition ``End product of Australia, Canada, Chile, Mexico, or 
Singapore''; and removing the definitions ``Free Trade Agreement 
country'' and ``Free Trade Agreement country end product''; and
0
c. By revising the first and last sentences of paragraph (c) of the 
clause to read as follows:


52.225-3  Buy American Act--Free Trade Agreements--Israeli Trade Act.

* * * * *

Buy American Act--Free Trade Agreements--Israeli Trade Act (Jan 2005)

    (a) * * *
    End product of Australia, Canada, Chile, Mexico, or Singapore 
means an article that--
    (1) Is wholly the growth, product, or manufacture of Australia, 
Canada, Chile, Mexico, or Singapore; or
    (2) In the case of an article that consists in whole or in part 
of materials from another country, has been substantially 
transformed in Australia, Canada, Chile, Mexico, or Singapore 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 
transformed. The term refers to a product offered for purchase under 
a supply contract, but for purposes of calculating the value of the 
end product includes services (except transportation services) 
incidental to the article, provided that the value of those 
incidental services does not exceed that of the article itself.
* * * * *
    (c) Delivery of end products. The Contracting Officer has 
determined that FTAs (except the Morocco FTA) and the Israeli Trade 
Act apply to this acquisition. * * * If the Contractor specified in 
its offer that the Contractor would supply an end product of 
Australia, Canada, Chile, Mexico, or Singapore or an Israeli end 
product, then the Contractor shall supply an end product of 
Australia, Canada, Chile, Mexico, or Singapore, an Israeli end 
product or, at the Contractor's option, a domestic end product.
* * * * *

0
32. Amend section 52.225-4 by--
0
a. Revising the date of the provision to read ``(Jan 2005)'';
0
b. Revising the last sentence of paragraph (a) of the provision; and
0
c. Revising paragraph (b) of the provision to read as follows:


52.225-4  Buy American Act--Free Trade Agreements--Israeli Trade Act 
Certificate.

* * * * *

Buy American Act--Free Trade Agreements--Israeli Trade Act Certificate 
(Jan 2005)

    (a) * * * The terms ``component,'' ``domestic end product,'' 
``end product,'' ``end product of Australia, Canada, Chile, Mexico, 
or Singapore,'' ``foreign end product,'' ``Israeli end product,'' 
and ``United States'' are defined in the clause of this solicitation 
entitled ``Buy American Act--Free Trade Agreements--Israeli Trade 
Act.''

[[Page 77877]]

    (b) The offeror certifies that the following supplies are end 
products of Australia, Canada, Chile, Mexico, or Singapore or 
Israeli end products as defined in the clause of this solicitation 
entitled ``Buy American Act--Free Trade Agreements--Israeli Trade 
Act'':

    End Products of Australia, Canada, Chile, Mexico, or Singapore or
                          Israeli End Products:
 
          Line item No.                               Country of  origin
 
                                   ................  ...................
----------------------------------                  --------------------
                                   ................  ...................
----------------------------------                  --------------------
                                   ................  ...................
----------------------------------                  --------------------
                           [List as necessary]
 

* * * * *

0
33. Amend section 52.225-5 by--
0
a. Revising the date of the clause to read ``(Jan 2005)'';
0
b. Removing from paragraph (a) of the clause the definition ``Caribbean 
Basin country''; revising the definitions ``Designated country'' and 
``Designated country end product''; removing the definition ``Free 
Trade Agreement country''; adding, in alphabetical order, the 
definitions ``Least developed country end product'' and ``WTO GPA 
country end product''; and
0
c. Revising paragraph (b) of the clause to read as follows:


52.225-5  Trade Agreements.

* * * * *

Trade Agreements (Jan 2005)

    (a) * * *
    Designated country means any of the following countries:
    (1) A World Trade Organization Government Procurement Agreement 
country (Aruba, Austria, Belgium, Canada, Cyprus, Czech Republic, 
Denmark, Estonia, Finland, France, Germany, Greece, Hong Kong, 
Hungary, Iceland, Ireland, Israel, Italy, Japan, Korea (Republic 
of), Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, 
Netherlands, Norway, Poland, Portugal, Singapore, Slovak Republic, 
Slovenia, Spain, Sweden, Switzerland, or United Kingdom);
    (2) A Free Trade Agreement country (Australia, Canada, Chile, 
Mexico, Morocco, or Singapore);
    (3) A least developed country (Afghanistan, Angola, Bangladesh, 
Benin, Bhutan, Burkina Faso, Burundi, Cambodia, Cape Verde, Central 
African Republic, Chad, Comoros, Democratic Republic of Congo, 
Djibouti, East Timor, Equatorial Guinea, Eritrea, Ethiopia, Gambia, 
Guinea, Guinea-Bissau, Haiti, Kiribati, Laos, Lesotho, Madagascar, 
Malawi, Maldives, Mali, Mauritania, Mozambique, Nepal, Niger, 
Rwanda, Samoa, Sao Tome and Principe, Senegal, Sierra 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, Dominican Republic, El Salvador, Grenada, Guatemala, 
Guyana, Haiti, Honduras, Jamaica, Montserrat, Netherlands Antilles, 
Nicaragua, St. Kitts and Nevis, St. Lucia, St. Vincent and the 
Grenadines, or Trinidad and Tobago).
    Designated country end product means a WTO GPA country end 
product, an FTA country end product, a least developed country end 
product, or a Caribbean Basin country end product.
* * * * *
    Least developed country end product means an article that--
    (1) Is wholly the growth, product, or manufacture of a least 
developed country; or
    (2) In the case of an article that consists in whole or in part 
of materials from another country, has been substantially 
transformed in a least developed country 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 transformed. The 
term refers to a product offered for purchase under a supply 
contract, but for purposes of calculating the value of the end 
product, includes services (except transportation services) 
incidental to the article, provided that the value of those 
incidental services does not exceed that of the article itself.
* * * * *
    WTO GPA country end product means an article that--
    (1) Is wholly the growth, product, or manufacture of a WTO GPA 
country; or
    (2) In the case of an article that consists in whole or in part 
of materials from another country, has been substantially 
transformed in a WTO GPA country 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 transformed. The term refers 
to a product offered for purchase under a supply contract, but for 
purposes of calculating the value of the end product includes 
services, (except transportation services) incidental to the 
article, provided that the value of those incidental services does 
not exceed that of the article itself.
    (b) Delivery of end products. The Contracting Officer has 
determined that the WTO GPA and FTAs apply to this acquisition. 
Unless otherwise specified, these trade agreements apply to all 
items in the Schedule. The Contractor shall deliver under this 
contract only U.S.-made or designated country end products except to 
the extent that, in its offer, it specified delivery of other end 
products in the provision entitled ``Trade Agreements Certificate.''
    (End of clause)


0
34. Amend section 52.225-6 by--
0
a. Removing from the provision heading ``(Jan 2004)'' and adding ``(Jan 
2005)'' in its place; and
0
b. Revising paragraph (a), the first sentence of paragraph (b), and 
paragraph (c) of the provision to read as follows:


52.225-6  Trade Agreements Certificate.

* * * * *

Trade Agreements Certificate (Jan 2005)

    (a) The offeror certifies that each end product, except those 
listed in paragraph (b) of this provision, is a U.S.-made or 
designated country end product, as defined in the clause of this 
solicitation entitled ``Trade Agreements.''
    (b) The offeror shall list as other end products those supplies 
that are not U.S.-made or designated country end products. * * *
    (c) The Government will evaluate offers in accordance with the 
policies and procedures of Part 25 of the Federal Acquisition 
Regulation. For line items covered by the WTO GPA, the Government 
will evaluate offers of U.S.-made or designated country end products 
without regard to the restrictions of the Buy American Act. The 
Government will consider for award only offers of U.S.-made or 
designated country end products unless the Contracting Officer 
determines that there are no offers for such products or that the 
offers for those products are insufficient to fulfill the 
requirements of this solicitation.
    (End of provision)


52.225-9  [Amended]

0
35. Amend section 52.225-9 in the clause heading by removing ``(June 
2003)'' and adding ``(Jan 2005)'' in its place; and in paragraph (a) in 
the definition ``Cost of components'' by removing from the end of 
paragraph (2) the words ``end product'' and adding ``construction 
material'' in its place.

0
36. Amend section 52.225-11--
0
a. By removing from the clause heading ``(Oct 2004)'' and adding ``(Jan 
2005)'' in its place;
0
b. In paragraph (a) by adding, in alphabetical order, the definition 
``Caribbean Basin country construction material''; by removing from the 
end of paragraph (2) in the definition ``Cost of components'' the words 
``end product'' and adding ``construction material'' in its place; by 
revising the definitions ``Designated country'' and ``Designated 
country construction material''; by removing the definition ``Free 
Trade Agreement country''; and by adding the definitions ``Least 
developed country construction material'' and ``WTO GPA country 
construction material'';
0
c. By revising paragraphs (b)(1) and (b)(2) of the clause; and
0
d. By revising Alternate I. The added and revised text reads as 
follows:


52.225-11  Buy American Act--Construction Materials under Trade 
Agreements.

* * * * *

Buy American Act--Construction Materials Under Trade Agreements (Jan 
2005)

    (a) Definitions. * * *

[[Page 77878]]

    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 been 
substantially transformed in a Caribbean Basin country into a new 
and different construction material distinct from the materials from 
which it was transformed.
* * * * *
    Designated country means any of the following countries:
    (1) A World Trade Organization Government Procurement Agreement 
country (Aruba, Austria, Belgium, Canada, Cyprus, Czech Republic, 
Denmark, Estonia, Finland, France, Germany, Greece, Hong Kong, 
Hungary, Iceland, Ireland, Israel, Italy, Japan, Korea (Republic 
of), Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, 
Netherlands, Norway, Poland, Portugal, Singapore, Slovak Republic, 
Slovenia, Spain, Sweden, Switzerland, or United Kingdom);
    (2) A Free Trade Agreement country (Australia, Canada, Chile, 
Mexico, Morocco, or Singapore);
    (3) A least developed country (Afghanistan, Angola, Bangladesh, 
Benin, Bhutan, Burkina Faso, Burundi, Cambodia, Cape Verde, Central 
African Republic, Chad, Comoros, Democratic Republic of Congo, 
Djibouti, East Timor, Equatorial Guinea, Eritrea, Ethiopia, Gambia, 
Guinea, Guinea-Bissau, Haiti, Kiribati, Laos, Lesotho, Madagascar, 
Malawi, Maldives, Mali, Mauritania, Mozambique, Nepal, Niger, 
Rwanda, Samoa, Sao Tome and Principe, Senegal, Sierra 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, Dominican Republic, El Salvador, Grenada, Guatemala, 
Guyana, Haiti, Honduras, Jamaica, Montserrat, Netherlands Antilles, 
Nicaragua, St. Kitts and Nevis, St. Lucia, St. Vincent and the 
Grenadines, or Trinidad and Tobago).
    Designated country construction material means a construction 
material that is a WTO GPA country construction material, an FTA 
country construction material, a least developed country 
construction material, or a Caribbean Basin country construction 
material.
* * * * *
    Least developed country construction material means a 
construction material that--
    (1) Is wholly the growth, product, or manufacture of a least 
developed country; or
    (2) In the case of a construction material that consists in 
whole or in part of materials from another country, has been 
substantially transformed in a least developed country into a new 
and different construction material distinct from the materials from 
which it was transformed.
* * * * *
    WTO GPA country construction material means a construction 
material that--
    (1) Is wholly the growth, product, or manufacture of a WTO GPA 
country; or
    (2) In the case of a construction material that consists in 
whole or in part of materials from another country, has been 
substantially transformed in a WTO GPA country into a new and 
different construction material distinct from the materials from 
which it was transformed.
* * * * *
    (b) Construction materials. (1) This clause implements the Buy 
American Act (41 U.S.C. 10a-10d) by providing a preference for 
domestic construction material. In addition, the Contracting Officer 
has determined that the WTO GPA and Free Trade Agreements (FTAs) 
apply to this acquisition. Therefore, the Buy American Act 
restrictions are waived for designated country construction 
materials.
    (2) The Contractor shall use only domestic, designated country 
construction material in performing this contract, except as 
provided in paragraphs (b)(3) and (b)(4) of this clause.
* * * * *
    Alternate I (Jan 2005). As prescribed in 25.1102(c)(3), delete 
the definition of ``designated country construction material'' from 
the definitions in paragraph (a) of the basic clause, add the 
following definition of ``Australian, Chilean, or Moroccan 
construction material'' to paragraph (a) of the basic clause, and 
substitute the following paragraphs (b)(1) and (b)(2) for paragraphs 
(b)(1) and (b)(2) of the basic clause:
    Australian, Chilean, or Moroccan construction material means a 
construction material that--
    (1) Is wholly the growth, product, or manufacture of Australia, 
Chile, or Morocco; or
    (2) In the case of a construction material that consists in 
whole or in part of materials from another country, has been 
substantially transformed in Australia, Chile, or Morocco into a new 
and different construction material distinct from the materials from 
which it was transformed.
    (b) Construction materials. (1) This clause implements the Buy 
American Act (41 U.S.C. 10a-10d) by providing a preference for 
domestic construction material. In addition, the Contracting Officer 
has determined that the WTO GPA and all the Free Trade Agreements 
except NAFTA apply to this acquisition. Therefore, the Buy American 
Act restrictions are waived for WTO GPA country and Australian, 
Chilean, and Moroccan, least developed country, and Caribbean Basin 
country construction materials.
    (2) The Contractor shall use only domestic, WTO GPA country, 
Australian, Chilean, or Moroccan, least developed country, or 
Caribbean Basin country construction material in performing this 
contract, except as provided in paragraphs (b)(3) and (b)(4) of this 
clause.


0
37. Amend section 52.225-12 by--
0
a. Removing from the provision heading ``(JAN 2004)'' and adding ``(JAN 
2005)'' in its place;
0
b. Revising paragraphs (a), (d)(1), and the introductory text of (d)(3) 
of the provision; and
0
c. Removing from Alternate II ``(Jan 2004)'' and adding ``(Jan 2005)'' 
in its place; and revising paragraphs (a), (d)(1), and the introductory 
text of (d)(3) to read as follows:


52.225-12  Notice of Buy American Act Requirement--Construction 
Materials Under Trade Agreements.

* * * * *

Notice of Buy American Act Requirement--Construction Materials Under 
Trade Agreements (Jan 2005)

    (a) Definitions. ``Construction material,'' ``designated country 
construction material,'' ``domestic construction material,'' and 
``foreign construction material,'' as used in this provision, are 
defined in the clause of this solicitation entitled ``Buy American 
Act--Construction Materials Under Trade Agreements'' (Federal 
Acquisition Regulation (FAR) clause 52.225-11).
* * * * *
    (d) Alternate offers. (1) When an offer includes foreign 
construction material, other than designated country construction 
material, that is not listed by the Government in this solicitation 
in paragraph (b)(3) of FAR clause 52.225-11, the offeror also may 
submit an alternate offer based on use of equivalent domestic or 
designated country construction material.
* * * * *
    (3) If the Government determines that a particular exception 
requested in accordance with paragraph (c) of FAR clause 52.225-11 
does not apply, the Government will evaluate only those offers based 
on use of the equivalent domestic or designated country construction 
material, and the offeror shall be required to furnish such domestic 
or designated country construction material. An offer based on use 
of the foreign construction material for which an exception was 
requested--
* * * * *
    (End of provision)
* * * * *
    Alternate II (Jan 2005). * * *
    (a) Definitions. ``Australian, Chilean, or Moroccan construction 
material,'' ``Caribbean Basin country construction material,'' 
``construction material,'' ``domestic construction material,'' 
``foreign construction material,'' ``least developed country 
construction material,'' and ``WTO GPA country construction 
material,'' as used in this provision, are defined in the clause of 
this solicitation entitled ``Buy American Act--Construction 
Materials Under Trade Agreements'' (Federal Acquisition Regulation 
(FAR) clause 52.225-11).
    (d)(1) When an offer includes foreign construction material, 
other than WTO GPA country, Australian, Chilean, or Moroccan, least 
developed country, or Caribbean Basin country construction material, 
that is not listed by the Government in this solicitation in 
paragraph (b)(3) of FAR clause 52.225-11, the offeror also may 
submit an alternate offer based on use of equivalent domestic, WTO 
GPA country, Australian, Chilean, or Moroccan, least developed 
country, or Caribbean Basin country construction material.
* * * * *

[[Page 77879]]

    (3) If the Government determines that a particular exception 
requested in accordance with paragraph (c) of FAR clause 52.225-11 
does not apply, the Government will evaluate only those offers based 
on use of the equivalent domestic, WTO GPA country, Australian, 
Chilean, or Moroccan, least developed country, or Caribbean Basin 
country construction material, and the offeror shall be required to 
furnish such domestic, WTO GPA country, Australian, Chilean, or 
Moroccan, least developed country, or Caribbean Basin country 
construction material. An offer based on use of the foreign 
construction material for which an exception was requested--
* * * * *
[FR Doc. 04-28400 Filed 12-27-04; 8:45 am]
BILLING CODE 6820-EP-P


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