42822 Federal Register / Vol. 83, No. 165 / Friday, August 24, 2018 / Proposed Rules 

available at http://jko.jfcom.mil/ or as 

otherwise identified in the performance work 

statement. 

(d) The Contractor shall include the 

substance of this clause, including this 

paragraph (d), in subcontracts, including 

subcontracts for commercial items, when 

subcontractor performance requires routine 

physical access to a Federally-controlled 

facility or military installation. 

(End of clause) 

[FR Doc. 2018–18250 Filed 8–23–18; 8:45 am] 

BILLING CODE 5001–06–P 

DEPARTMENT OF DEFENSE 

Defense Acquisition Regulations 

System 

48 CFR Parts 212, 225, and 252 

[Docket DARS–2018–0028] 

RIN 0750–AJ71 

Defense Federal Acquisition 

Regulation Supplement: Sunset of 

Provision Relating to the Procurement 

of Certain Goods (DFARS Case 2018– 

D007) 

AGENCY: Defense Acquisition 

Regulations System, Department of 

Defense (DoD). 

ACTION: Proposed rule. 

SUMMARY: DoD is proposing to amend 

the Defense Federal Acquisition 

Regulation Supplement (DFARS) to 

implement a section of the National 

Defense Authorization Act for Fiscal 

Year 2018 that repeals the Fiscal Year 

2015 restrictions on the source of 

photovoltaic devices in contracts 

awarded by DoD that result in DoD 

ownership of photovoltaic devices by 

means other than DoD purchase of the 

photovoltaic devices as end products. 

DATES: Comments on the proposed rule 

should be submitted in writing to the 

address shown below on or before 

October 23, 2018, to be considered in 

the formation of a final rule. 

ADDRESSES: Submit comments 

identified by DFARS Case 2018–D007, 

using any of the following methods: 

Æ Federal eRulemaking Portal: http:// 

www.regulations.gov. Search for 

‘‘DFARS Case 2018–D007’’. Select 

‘‘Comment Now’’ and follow the 

instructions provided to submit a 

comment. Please include ‘‘DFARS Case 

2018–D007’’ on any attached 

documents. 

Æ Email: osd.dfars@mail.mil. Include 

DFARS Case 2018–D007 in the subject 

line of the message. 

Æ Fax: 571–372–6094. 

Æ Mail: Defense Acquisition 

Regulations System, Attn: Amy G. 

Williams, OUSD(A&S)DPC/DARS, 

Room 3B941, 3060 Defense Pentagon, 

Washington, DC 20301–3060. 

Comments received generally will be 

posted without change to http://

www.regulations.gov, including any 

personal information provided. To 

confirm receipt of your comment(s), 

please check www.regulations.gov, 

approximately two to three days after 

submission to verify posting (except 

allow 30 days for posting of comments 

submitted by mail). 

FOR FURTHER INFORMATION CONTACT: Ms. 

Amy G. Williams, telephone 571–372– 

6106. 

SUPPLEMENTARY INFORMATION: 

I. Background 

DoD is proposing to revise the DFARS 

to implement section 813(b) of the 

National Defense Authorization Act 

(NDAA) for Fiscal Year (FY) 2018. 

Section 813(b) repeals section 858 of the 

NDAA for FY 2015, effective October 1, 

2018, but does not repeal section 846 of 

the NDAA for FY 2011. DoD published 

the final rule to implement section 858 

under DFARS case 2015–D007 in the 

Federal Register on November 20, 2015 

(80 FR 72599). 

Section 858 of the NDAA for FY 2015 

did not contain specific language to 

rescind or supersede section 846 of the 

NDAA for FY 2011, which was first 

implemented in the DFARS by an 

interim rule under DFARS Case 2011– 

D046, published in the Federal Register 

on December 20, 2011 (76 FR 78858), 

and then finalized on May 22, 2012 (77 

FR 30368). 

II. Discussion and Analysis 

A. Analysis of Statutory Requirements 

1. Covered Contracts 

Section 846 applies to contracts 

awarded by DoD, including energy 

savings performance contracts, utility 

energy service contracts, and private 

housing contracts, to the extent that 

such contracts result in ownership of 

photovoltaic devices by DoD. Section 

846 further provides that DoD is deemed 

to own a photovoltaic device if the 

device is— 

• Installed on DoD property or in a 

facility owned by DoD; and 

• Reserved for the exclusive use of 

DOD for the full economic life of the 

device. 

Section 858 substituted ‘‘or’’ for 

‘‘and’’ in connecting the two conditions. 

Therefore, either one of the conditions 

would be sufficient to make the law 

applicable. By repealing section 858, the 

law does not apply unless both of the 

conditions are met. Although section 

858 explicitly restricted applicability to 

the United States, that restriction is still 

equivalent to the section 846 

applicability, because the Buy American 

statute invoked in section 846 does not 

apply overseas. Land leases are not 

addressed in this rule because land 

leases are outside the scope of the FAR 

and DFARS. 

2. Requirements 

Section 846 requires that, with some 

exceptions, photovoltaic devices 

provided under covered contracts 

comply with the Buy American statute. 

The Buy American statute requires, for 

use inside the United States, that 

manufactured articles, materials and 

supplies be manufactured in the United 

States, substantially all from articles, 

materials, or supplies mined, produced, 

or manufactured in the United States. 

When section 858 was enacted, it 

imposed basically the same 

requirement, requiring that any 

photovoltaic device installed under a 

covered contract be manufactured in the 

United States substantially all from 

articles, materials or supplies mined, 

produced, or manufactured in the 

United States, but no longer referenced 

the Buy American statute. 

3. Exceptions 

Because the requirement under 

section 858 was separated from the 

explicit application of the Buy 

American statute, the exceptions and 

waivers that apply to the Buy American 

statute no longer automatically applied 

to the restrictions of section 858, unless 

provided for and authorized by section 

858. Now that section 858 has been 

repealed, the following exceptions are 

again applicable: 

• Exceptions for domestic 

nonavailability and acquisitions in 

which the values of the photovoltaic 

devices does not exceed the micropurchase threshold. 

• Public interest determination. The 

Buy American statute provides for 

individual or class determinations that 

application of the Buy American statute 

is inconsistent with the public interest. 

Through public interest class 

determinations, DoD does not apply the 

Buy American statute to (1) qualifying 

country end products; or (2) U.S.-made 

end products, if the World Trade 

Organization Government Procurement 

Agreement applies (i.e., the aggregate 

value of the photovoltaic devices to be 

utilized is $180,000 or more). In 

implementing section 846, this 

determination was applied to 

photovoltaic devices not acquired as 

end products. Section 858 only allowed, 

on a case-by-case basis, determinations 


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that application of the restriction in 858 

are not in the public interest. Such caseby-case determinations are no longer 

required in order to allow a contractor 

to utilize a qualifying country 

photovoltaic device or a U.S.-made 

photovoltaic device. 

• Determination of unreasonable cost. 

Both the Buy American statute and 

section 858 allow a determination not to 

utilize a domestic product if the cost of 

the domestic product is unreasonable. 

With regard to determining that the cost 

of a domestic item is unreasonable, 

Executive Order 10582, Prescribing 

Uniform Procedures for Certain 

Determinations under the BuyAmerican Act, provides a methodology 

to determine unreasonable cost, using a 

minimum differential of 6 percent, but 

also provides that the head of an 

executive agency may determine that 

the use of a higher differential between 

the cost of materials of domestic origin 

and the cost of materials of foreign 

origin ‘‘is not unreasonable.’’ The then 

Secretary of Defense, Cyrus Vance, 

signed a memorandum on May 7, 1964, 

providing for application of a 50 percent 

differential under the Buy American 

statute. Therefore, DoD proposes to 

continue application of a 50 percent 

evaluation factor when determining 

whether the price of domestic 

photovoltaic devices is unreasonable 

when the estimated aggregate value of 

the photovoltaic devices to be utilized is 

less than $180,000 (the World Trade 

Organization Government Procurement 

Agreement threshold). The application 

of an evaluation factor to foreign 

products to determine whether the price 

of domestic products is reasonable is 

not applicable when the World Trade 

Organization Government Procurement 

Agreement applies, because there is a 

prohibition under that agreement to 

buying any products that are not 

designated, domestic, U.S.-made, or 

qualifying country products. DoD has 

waived the application of the Buy 

American statute to U.S.-made products 

so no evaluation factor is applicable. 

• Exemption for commercially 

available off-the-shelf (COTS) items. 

Pursuant to 41 U.S.C. 1907 and 

determinations by the Administrator of 

Federal Procurement Policy, the 

component test of the Buy American 

statute does not apply to the acquisition 

of COTS items. This exemption no 

longer applied to photovoltaic devices 

utilized under section 858, but is now 

re-instated under section 846. 

• Trade agreements or otherwise 

provided by law. The restrictions of 

both section 846 and section 858 are 

subject to the exceptions provided in 

the Trade Agreements Act or otherwise 

provided by law. The Trade Agreements 

Act (19 U.S.C. 2501 et seq.) provides 

authority for the President to waive the 

Buy American statute and other 

discriminatory provisions (e.g., sections 

846 and 858) for eligible products from 

designated countries. This authority has 

been delegated to the United States 

Trade Representative (USTR). 

B. Regulatory Implementation 

This proposed rule essentially 

reinstates the DFARS regulations as they 

existed prior to publication of the final 

rule under DFARS Case 2015–D007 on 

November 20, 2015, except for— 

• Baseline changes such as increased 

trade agreement thresholds and addition 

of new qualifying countries); 

• Use of the term ‘‘micro-purchase 

threshold’’ rather than a specific dollar 

value, to provide more flexibility when 

the micro-purchase threshold increases; 

• Retaining the explicit statement that 

these restrictions only apply in the 

United States; and 

• Restructuring of the certifications in 

DFARS provision 252.225–7018. In each 

dollar range, the first paragraph is 

limited to a certification that the 

photovoltaic devices are domestic (or 

U.S.-made for paragraph (6)). This 

avoids the necessity of identifying the 

country of origin for such domestic or 

U.S.-made products. 

III. Applicability to Contracts at or 

Below the Simplified Acquisition 

Threshold and for Commercial Items, 

Including Commercially Available Offthe-Shelf Items 

This rule does not affect the 

applicability of DFARS clause 252.225– 

7017, Photovoltaic Devices, and DFARS 

provision 252.225–7018, Photovoltaic 

Devices—Certification. A determination 

was signed by the Director, Defense 

Procurement and Acquisition Policy, on 

October 13, 2011, to not apply the 

requirements of section 846 of the 

NDAA for FY 2011 to contracts at or 

below the simplified acquisition 

threshold, but to apply the rule to 

contracts for the acquisition of 

commercial items, including COTS 

items. 

IV. Executive Orders 12866 and 13563 

Executive Orders (E.O.s) 12866 and 

13563 direct agencies to assess all costs 

and benefits of available regulatory 

alternatives and, if regulation is 

necessary, to select regulatory 

approaches that maximize net benefits 

(including potential economic, 

environmental, public health and safety 

effects, distributive impacts, and 

equity). E.O. 13563 emphasizes the 

importance of quantifying both costs 

and benefits, of reducing costs, of 

harmonizing rules, and of promoting 

flexibility. This is not a significant 

regulatory action and, therefore, was not 

subject to review under section 6(b) of 

E.O. 12866, Regulatory Planning and 

Review, dated September 30, 1993. This 

rule is not a major rule under 5 U.S.C. 

804. 

V. Executive Order 13771 

This proposed rule is not expected to 

be an E.O. 13771, Reducing Regulation 

and Controlling Regulatory Costs, 

regulatory action, because this proposed 

rule is not significant under E.O. 12866. 

VI. Regulatory Flexibility Act 

DoD does not expect this proposed 

rule 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. However, an initial regulatory 

flexibility analysis has been performed 

and is summarized as follows: 

This rule proposes to implement the 

repeal of section 858 of the Carl Levin 

and Howard P. ‘‘Buck’’ McKeon 

National Defense Authorization Act 

(NDAA) for FY 2015 (Pub. L. 113–291), 

while retaining the requirements of 

section 846 of the NDAA for FY 2011, 

with regard to sources of contractorpurchased photovoltaic devices that 

become the property of DoD. 

The objective of this rule is to revert 

to the regulations on photovoltaic 

devices that were in effect prior to 

superimposing the additional 

regulations required by section 858 on 

November 20, 2015 (80 FR 72599). By 

restoring the tie to the Buy American 

statute, this rule reinstates the Buy 

American exceptions for acquisitions 

below the micro-purchase threshold, 

nonavailabilty, unreasonable cost, and 

public interest, including the DoD class 

determinations that exempt U.S.-made 

and qualifying country photovoltaic 

devices from the requirement of the Buy 

American statute, as well as the 

Governmentwide determination that 

removes the component test for 

commercially-available off-the-shelf 

items. 

This rule generally applies at the 

prime contract level to other than small 

entities. When purchasing renewable 

power generated via on-site 

photovoltaic devices, DoD can either 

purchase the photovoltaic devices and 

thereby own, operate, and maintain the 

devices for their full economic life 

(already covered in DFARS part 225 

under standard Buy American statute/ 

Trade Agreements regulations) or, for 

example, may do some variation of the 

following: 


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• Enter into an energy savings 

performance contract, which is a 

contracting method in which the 

contractor provides capital to facilitate 

energy conservation measures and 

maintains them in exchange for a 

portion of the energy savings generated. 

Under this arrangement, the 

Government would take title to the 

devices during contract performance or 

at the conclusion of the contract. For 

example, DoD uses either the master 

indefinite delivery-indefinite quantity 

contract of the Department of Energy or 

the Army Corps of Engineers and 

awards task orders off one of those 

contracts. Generally, the same approved 

contractors are on each contract. Of the 

approved contractors, all except one are 

large businesses. There are 

subcontracting goals that each 

contractor has to meet, but the ultimate 

task order award is most often made to 

a large business. 

• Enter into a power purchase 

agreement, also referred to as a utility 

service contract, for the purchase of the 

power output of photovoltaic devices 

that are installed on DoD land or 

buildings, but owned, operated, and 

maintained by the contractor. At the 

conclusion of the contract, DoD would 

either require the contractor to 

dismantle and remove the photovoltaic 

equipment or abandon the equipment in 

place. Prime contractors for this type of 

contract would generally be large 

businesses, based on the capital costs 

involved in these projects. However, 

many developers tend to subcontract 

out the majority of work to smaller 

companies. 

There are approximately 80 

manufacturers of photovoltaic devices. 

DoD does not currently have data 

available on whether any of the 

manufacturers of photovoltaic devices 

are small entities, because the Federal 

Procurement Data System does not 

collect such data on subcontractors. 

There are no new reporting burdens 

under this rule. In fact, there is a de 

minimis reduction in burden, because 

no certification will be required if the 

value of the photovoltaic devices does 

not exceed the micro-purchase 

threshold, and identification of country 

of origin will no longer be required if 

the photovoltaic devices are domestic or 

U.S.-made. Contracting officers will no 

longer be required to do a determination 

and findings in order to allow 

utilization of qualifying country or U.S.- 

made photovoltaic devices or other 

foreign photovoltaic devices on the 

bases of unreasonable cost. 

Furthermore, since the prime 

contractors subject to this rule are other 

than small businesses, the existing 

reporting requirements do not impact 

small entities. 

The rule does not duplicate, overlap, 

or conflict with any other Federal rules. 

DoD did not identify any significant 

alternatives that meet the requirements 

of the statute and would have less 

impact on small entities. The overall 

effect of this rule is deregulatory and it 

does not have significant impact on 

small entities. 

DoD invites comments from small 

business concerns and other interested 

parties on the expected impact of this 

rule on small entities. 

DoD will also consider comments 

from small entities concerning the 

existing regulations in subparts affected 

by this rule in accordance with 5 U.S.C. 

610. Interested parties must submit such 

comments separately and should cite 5 

U.S.C. 610 (DFARS Case 2018–D007), in 

correspondence. 

VII. Paperwork Reduction Act 

The rule contains information 

collection requirements that require the 

approval of the Office of Management 

and Budget under the Paperwork 

Reduction Act (44 U.S.C chapter 35); 

however, these changes to the DFARS 

do not impose additional information 

collection requirements to the 

paperwork burden previously approved 

under OMB Control Number 0704–0229, 

entitled ‘‘Defense Federal Acquisition 

Regulation Supplement (DFARS) Part 

225, Foreign Acquisition, and related 

clauses at DFARS 252.225.’’ 

List of Subjects in 48 CFR Parts 212, 

225, and 252 

Government procurement. 

Jennifer Lee Hawes, 

Regulatory Control Officer, Defense 

Acquisition Regulations System. 

Therefore, 48 CFR parts 212, 225, and 

252 are proposed to be amended as 

follows: 

■ 1. The authority citation for 48 CFR 

parts 212, 225, and 252 continues to 

read as follows: 

Authority: 41 U.S.C. 1303 and 48 CFR 

chapter 1. 

PART 212—ACQUISITION OF 

COMMERCIAL ITEMS 

■ 2. Amend section 212.301 by revising 

paragraphs (f)(ix)(J) and (K) to read as 

follows: 

212.301 Solicitation provisions and 

contract clauses for the acquisition of 

commercial items. 

(f) * * * 

* * * * * 

(ix) * * * 

(J) Use the clause at 252.225–7017, 

Photovoltaic Devices, as prescribed in 

225.7017–4(a), to comply with section 

846 of Public Law 111–383. 

(K) Use the provision at 252.225– 

7018, Photovoltaic Devices—Certificate, 

as prescribed in 225.7017–4(b), to 

comply with section 846 of Public Law 

111–383. 

* * * * * 

PART 225—FOREIGN ACQUISITION 

■ 3. Amend section 225.7017–1 by 

revising the definitions of ‘‘Covered 

contract’’ and ‘‘Domestic photovoltaic 

device’’ to read as follows: 

225.7017–1 Definitions. 

* * * * * 

Covered contract means an energy 

savings performance contract, a utility 

services contract, or a private housing 

contract awarded by DoD to be 

performed in the United States, if such 

contract results in DoD ownership of 

photovoltaic devices, by means other 

than DoD purchase as end products. 

DoD is deemed to own a photovoltaic 

device if the device is— 

(1) Installed in the United States on 

DoD property or in a facility owned by 

DoD; and 

(2) Reserved for the exclusive use of 

DoD in the United States for the full 

economic life of the device. 

* * * * * 

Domestic photovoltaic device means a 

photovoltaic device that is 

manufactured in the United States. 

* * * * * 

■ 4. Revise section 225.7017–2 to read 

as follows: 

225.7017–2 Restriction. 

In accordance with section 846 of the 

National Defense Authorization Act for 

Fiscal Year 2011, photovoltaic devices 

provided under any covered contract 

shall comply with 41 U.S.C. chapter 83, 

Buy American, subject to the exceptions 

to that statute provided in the Trade 

Agreements Act of 1979 (19 U.S.C. 2501 

et seq.). 

■ 5. Revise section 225.7017–3 to read 

as follows: 

225.7017–3 Exceptions. 

DoD requires the contractor to utilize 

domestic photovoltaic devices in 

covered contracts that exceed the 

simplified acquisition threshold, with 

the following exceptions: 

(a) Qualifying country. Qualifying 

country photovoltaic devices may be 

utilized in any covered contract, 

because 225.103(a)(i)(A) provides an 

exception to the Buy American statute 

for products of qualifying countries, as 

defined in 225.003. 


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(b) Buy American—unreasonable cost. 

For a covered contract that utilizes 

photovoltaic devices valued at less than 

$180,000, the exception for 

unreasonable cost may apply (see FAR 

25.103(c). If the cost of a foreign 

photovoltaic device plus 50 percent is 

less than the cost of a domestic 

photovoltaic device, then the foreign 

photovoltaic device may be utilized. 

(c) Trade agreements. 

(1) Free Trade Agreements. For a 

covered contract that utilizes 

photovoltaic devices valued at $25,000 

or more, photovoltaic devices may be 

utilized from a country covered under 

the acquisition by a Free Trade 

Agreement, depending upon dollar 

threshold (see FAR subpart 25.4). 

(2) World Trade Organization— 

Government Procurement Agreement. 

For covered contracts that utilize 

photovoltaic devices that are valued at 

$180,000 or more, only U.S.-made 

photovoltaic devices, designated 

country photovoltaic devices, or 

qualifying country photovoltaic devices 

may be utilized. 

225.7017–4 [Removed] 

■ 6. Remove section 225.7017–4. 

225.7017–5 [Redesignated as 225.7017–4] 

■ 7. Redesignate section 225.7017–5 as 

225.7017–4 and in the newly 

redesignated section 225.7017–4, revise 

paragraph (a)(1) to read as follows: 

225.7017–4 Solicitation provision and 

contract clause. 

(a)(1) Use the clause at 252.225–7017, 

Photovoltaic Devices, in solicitations, 

including solicitations using FAR part 

12 procedures for the acquisition of 

commercial items, for a contract 

expected to exceed the simplified 

acquisition threshold that may be a 

covered contract, i.e., an energy savings 

performance contract, a utility service 

contract, or a private housing contract 

awarded by DoD, if such contract will 

result in DoD ownership of photovoltaic 

devices, by means other than DoD 

purchase as end products. 

* * * * * 

PART 252—SOLICITATION 

PROVISIONS AND CONTRACT 

CLAUSES 

■ 8. Amend section 252.225–7017 by— 

■ a. In the introductory text, removing 

‘‘225.7017–5(a)’’ and adding ‘‘225.7017– 

4(a)’’ in its place; 

■ b. Removing clause date ‘‘(JAN 2018)’’ 

and adding ‘‘(DATE)’’ in its place; 

■ c. In paragraph (a)— 

■ i. Removing subparagraph 

designations ‘‘(i)’’ and ‘‘(ii)’’ and adding 

‘‘(1)’’ and ‘‘(2)’’ in its place wherever it 

appears; 

■ ii. Removing subparagraph 

designations ‘‘(iii)’’ and ‘‘(iv)’’ and 

adding ‘‘(3)’’ and ‘‘(4)’’ in its place; 

■ iii. Revising the definition of 

‘‘Domestic photovoltaic device’’; 

■ d. In paragraph (b), removing ‘‘858 of 

the National Defense Authorization Act 

for Fiscal Year 2015 (Pub. L. 113–291)’’ 

and adding ‘‘846 of the National Defense 

Authorization Act for Fiscal Year 2011 

(Pub. L. 111–383)’’ in its place; and 

■ e. In paragraph (c)— 

■ i. Revising paragraph (c)(1); 

■ ii. In paragraph (c)(2), removing 

‘‘photovoltaic device as specified, or,’’ 

and adding ‘‘photovoltaic device, or,’’ in 

its place; and 

■ iii. Revising paragraphs (c)(3), (4), and 

(5). 

The revisions read as follows: 

252.225–7017 Photovoltaic Devices. 

(a) * * * 

Domestic photovoltaic device means a 

photovoltaic device that is 

manufactured in the United States. 

* * * * * 

(c) * * * 

(1) More than the micro-purchase 

threshold but less than $25,000, then 

the Contractor shall utilize only 

domestic photovoltaic devices unless, in 

its offer, it specified utilization of 

qualifying country or other foreign 

photovoltaic devices in paragraph (d)(2) 

of the Photovoltaic Devices—Certificate 

provision of the solicitation; 

* * * * * 

(3) $80,317 or more but less than 

$100,000, then the Contractor shall 

utilize under this contract only 

domestic photovoltaic devices, unless, 

in its offer, it specified utilization of 

Free Trade Agreement country 

photovoltaic devices (other than 

Bahrainian, Korean, Moroccan, 

Panamanian, or Peruvian photovoltaic 

devices), qualifying country 

photovoltaic devices, or other foreign 

photovoltaic devices in paragraph (d)(4) 

of the Photovoltaic Devices—Certificate 

provision of the solicitation. If the 

Contractor certified in its offer that it 

will utilize a Free Trade Agreement 

country photovoltaic device (other than 

a Bahrainian, Korean, Moroccan, 

Panamanian, or Peruvian photovoltaic 

device) or a qualifying country 

photovoltaic device, then the Contractor 

shall utilize a Free Trade Agreement 

country photovoltaic device (other than 

a Bahrainian, Korean, Moroccan, 

Panamanian, or Peruvian photovoltaic 

device) or a qualifying country 

photovoltaic device; or, at the 

Contractor’s option, a domestic 

photovoltaic device; 

(4) $100,000 or more but less than 

$180,000, then the Contractor shall 

utilize under this contract only 

domestic photovoltaic devices, unless, 

in its offer, it specified utilization of 

Free Trade Agreement country 

photovoltaic devices (other than 

Bahrainian, Moroccan, Panamanian, or 

Peruvian photovoltaic devices), 

qualifying country photovoltaic devices, 

or other foreign photovoltaic devices in 

paragraph (d)(5) of the Photovoltaic 

Devices—Certificate provision of the 

solicitation. If the Contractor certified in 

its offer that it will utilize a Free Trade 

Agreement country photovoltaic device 

(other than a Bahrainian, Moroccan, 

Panamanian, or Peruvian photovoltaic 

device) or a qualifying country 

photovoltaic device, then the Contractor 

shall utilize a Free Trade Agreement 

country photovoltaic device (other than 

a Bahrainian, Moroccan, Panamanian, or 

Peruvian photovoltaic device) or a 

qualifying country photovoltaic device; 

or, at the Contractor’s option, a domestic 

photovoltaic device; or 

(5) $180,000 or more, then the 

Contractor shall utilize under this 

contract only U.S.-made, designated 

country, or qualifying country 

photovoltaic devices. 

(End of clause) 

■ 9. Amend section 252.225–7018 by— 

■ a. In the introductory text, removing 

‘‘225.7017–5(b)’’ and adding ‘‘225.7017– 

4(b)’’ in its place; 

■ b. Removing clause date ‘‘(JAN 2018)’’ 

and adding ‘‘(DATE)’’ in its place; 

■ c. Revising paragraphs (b)(1) and (2); 

and 

■ d. Revising paragraphs (d)(1), (d)(2) 

introductory text, and (d)(3) through (6). 

The revisions read as follows: 

252.225–7018 Photovoltaic devices— 

certificate. 

* * * * * 

(b) * * * 

(1) If more than micro-purchase 

threshold but less than $180,000, then 

the Government will not accept an offer 

specifying the use of other foreign 

photovoltaic devices in paragraph 

(d)(2)(ii), (d)(3)(ii), (d)(4)(ii), or (d)(5)(ii) 

of this provision, unless the offeror 

documents to the satisfaction of the 

Contracting Officer that the price of the 

foreign photovoltaic device plus 50 

percent is less than the price of a 

comparable domestic photovoltaic 

device. 

(2) If $180,000 or more, then the 

Government will consider only offers 

that utilize photovoltaic devices that are 

U.S.-made, qualifying country, or 

designated country photovoltaic 

devices. 

* * * * * 


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(d) * * * 

(1) No photovoltaic devices will be 

utilized in performance of the contract, 

or such photovoltaic devices have an 

estimated value that does not exceed the 

micro-purchase threshold. 

(2) If more than the micro-purchase 

threshold but less than $25,000— 

* * * * * 

(3) If $25,000 or more but less than 

$80,317— 

(i) The offeror certifies that each 

photovoltaic device to be utilized in 

performance of the contract is a 

domestic photovoltaic device; 

(ii) The offeror certifies that each 

photovoltaic device to be utilized in 

performance of the contract is a 

Canadian photovoltaic device or a 

qualifying country photovoltaic device 

[Offeror to specify country of origin 

lllll]; or 

(iii) The foreign (other than Canadian 

or qualifying country) photovoltaic 

devices to be utilized in performance of 

the contract are the product of 

lllll. [Offeror to specify country 

of origin, if known, and provide 

documentation that the cost of a 

domestic photovoltaic device would be 

unreasonable in comparison to the cost 

of the proposed foreign photovoltaic 

device, i.e. that the price of the foreign 

photovoltaic device plus 50 percent is 

less than the price of a comparable 

domestic photovoltaic device.] 

(4) If $80,317 or more but less than 

$100,000— 

(i) The offeror certifies that each 

photovoltaic device to be utilized in 

performance of the contract is a 

domestic photovoltaic device; 

(ii) The offeror certifies that each 

photovoltaic device to be utilized in 

performance of the contract is a Free 

Trade Agreement country photovoltaic 

device (other than a Bahrainian, Korean, 

Moroccan, Panamanian, or Peruvian 

photovoltaic device) or a qualifying 

country photovoltaic device [Offeror to 

specify country of origin lllll]; or 

(iii) The offered foreign photovoltaic 

devices (other than those from countries 

listed in paragraph (d)(4)(ii) of this 

provision) are the product of 

lllll. [Offeror to specify country 

of origin, if known, and provide 

documentation that the cost of a 

domestic photovoltaic device would be 

unreasonable in comparison to the cost 

of the proposed foreign photovoltaic 

device, i.e. that the price of the foreign 

photovoltaic device plus 50 percent is 

less than the price of a comparable 

domestic photovoltaic device.] 

(5) If $100,000 or more but less than 

$180,000— 

(i) The offeror certifies that each 

photovoltaic device to be utilized in 

performance of the contract is a 

domestic photovoltaic device; 

(ii) The offeror certifies that each 

photovoltaic device to be utilized in 

performance of the contract is a Free 

Trade Agreement country photovoltaic 

device (other than a Bahrainian, 

Moroccan, Panamanian, or Peruvian 

photovoltaic device) or a qualifying 

country photovoltaic device [Offeror to 

specify country of origin lllll]; or 

(iii) The offered foreign photovoltaic 

devices (other than those from countries 

listed in paragraph (d)(5)(ii) of this 

provision) are the product of 

lllll. [Offeror to specify country 

of origin, if known, and provide 

documentation that the cost of a 

domestic photovoltaic device would be 

unreasonable in comparison to the cost 

of the proposed foreign photovoltaic 

device, i.e. that the price of the foreign 

photovoltaic device plus 50 percent is 

less than the price of a comparable 

domestic photovoltaic device.] 

(6) If $180,000 or more, the Offeror 

certifies that each photovoltaic device to 

be used in performance of the contract 

is— 

(i) A U.S.-made photovoltaic device; 

or 

(ii) A designated country photovoltaic 

device or a qualifying country 

photovoltaic device. [Offeror to specify 

country of origin lllll.] 

(End of provision) 

[FR Doc. 2018–18240 Filed 8–23–18; 8:45 am] 

BILLING CODE 5001–06–P 

DEPARTMENT OF DEFENSE 

Defense Acquisition Regulations 

System 

48 CFR Parts 212, 247, and 252 

[Docket DARS–2018–0040] 

RIN 0750–AJ94 

Defense Federal Acquisition 

Regulation Supplement: Modification 

of DFARS Clause ‘‘Transportation of 

Supplies by Sea’’ (DFARS Case 2018– 

D028) 

AGENCY: Defense Acquisition 

Regulations System, Department of 

Defense (DoD). 

ACTION: Proposed rule. 

SUMMARY: DoD is proposing to amend 

the Defense Federal Acquisition 

Regulation Supplement (DFARS) to 

modify the text of an existing DFARS 

clause to include the text of another 

DFARS clause, in order to streamline 

instructions to contractors regarding 

notifications of transportation of 

supplies by sea. 

DATES: Comments on the proposed rule 

should be submitted in writing to the 

address shown below on or before 

October 23, 2018, to be considered in 

the formation of a final rule. 

ADDRESSES: Submit comments 

identified by DFARS Case 2018–D028, 

using any of the following methods: 

Æ Federal eRulemaking Portal: 

http://www.regulations.gov. Search for 

‘‘DFARS Case 2018–D028’’. Select 

‘‘Submit a Comment Now’’ and follow 

the instructions provided to submit a 

comment. Please include ‘‘DFARS Case 

2018–D028’’ on any attached document. 

O Email: osd.dfars@mail.mil. Include 

DFARS Case 2018–D028 in the subject 

line of the message. 

Æ Fax: 571–372–6094. 

Æ Mail: Defense Acquisition 

Regulations System, Attn: Carrie Moore, 

OUSD(A&S)DPC/DARS, Room 3B941, 

3060 Defense Pentagon, Washington, DC 

20301–3060. 

Comments received generally will be 

posted without change to http://

www.regulations.gov, including any 

personal information provided. To 

confirm receipt of your comment(s), 

please check www.regulations.gov, 

approximately two to three days after 

submission to verify posting (except 

allow 30 days for posting of comments 

submitted by mail). 

FOR FURTHER INFORMATION CONTACT: Ms. 

Carrie Moore, telephone 571–372–6093. 

SUPPLEMENTARY INFORMATION: 

I. Background 

This rule proposes to modify DFARS 

clause 252.247–7023, Transportation of 

Supplies By Sea, to include the 

instructions currently specified in 

DFARS clause 252.247–7024, 

Notification of Supplies By Sea. 

Combining these clauses will result in 

DFARS clause 252.247–7024 being 

removed. 

II. Discussion and Analysis 

DFARS provision 252.247–7022, 

Representation of Extent of 

Transportation By Sea, is included in 

solicitations and requires an offeror to 

represent with its offer whether it 

anticipates that supplies will or will not 

be transported by sea in the 

performance of the contract. 

DFARS clause 252.247–7023 is 

included in all contracts, except for 

those that directly purchase ocean 

transportation services, and provides 

contractors with terms and conditions 

that apply when transporting supplies 

by sea under the contract. 

DFARS clause 252.247–7024, 

Notification of Transportation of 


sradovich on DSK3GMQ082PROD with PROPOSALS