[Federal Register Volume 83, Number 165 (Friday, August 24, 2018)]
[Proposed Rules]
[Pages 42822-42826]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-18240]


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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.

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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:
    [cir] 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.
    [cir] Email: <a href="/cdn-cgi/l/email-protection#c7a8b4a3e9a3a1a6b5b487aaa6aeabe9aaaeab"><span class="__cf_email__" data-cfemail="442b37206a20222536370429252d286a292d28">[email protected]</span></a>. Include DFARS Case 2018-D007 in 
the subject line of the message.
    [cir] Fax: 571-372-6094.
    [cir] 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--
    <bullet> Installed on DoD property or in a facility owned by DoD; 
and
    <bullet> 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:
    <bullet> Exceptions for domestic nonavailability and acquisitions 
in which the values of the photovoltaic devices does not exceed the 
micro-purchase threshold.
    <bullet> 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

[[Page 42823]]

that application of the restriction in 858 are not in the public 
interest. Such case-by-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.
    <bullet> 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 Buy-American 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.
    <bullet> 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.
    <bullet> 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--
    <bullet> Baseline changes such as increased trade agreement 
thresholds and addition of new qualifying countries);
    <bullet> Use of the term ``micro-purchase threshold'' rather than a 
specific dollar value, to provide more flexibility when the micro-
purchase threshold increases;
    <bullet> Retaining the explicit statement that these restrictions 
only apply in the United States; and
    <bullet> 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 
Off-the-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 contractor-purchased 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:

[[Page 42824]]

    <bullet> 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.
    <bullet> 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:

0
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

0
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

0
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.
* * * * *
0
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.).
0
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.

[[Page 42825]]

    (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]

0
6. Remove section 225.7017-4.


225.7017-5  [Redesignated as 225.7017-4]

0
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

0
8. Amend section 252.225-7017 by--
0
a. In the introductory text, removing ``225.7017-5(a)'' and adding 
``225.7017-4(a)'' in its place;
0
b. Removing clause date ``(JAN 2018)'' and adding ``(DATE)'' in its 
place;
0
c. In paragraph (a)--
0
i. Removing subparagraph designations ``(i)'' and ``(ii)'' and adding 
``(1)'' and ``(2)'' in its place wherever it appears;
0
ii. Removing subparagraph designations ``(iii)'' and ``(iv)'' and 
adding ``(3)'' and ``(4)'' in its place;
0
iii. Revising the definition of ``Domestic photovoltaic device'';
0
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
0
e. In paragraph (c)--
0
i. Revising paragraph (c)(1);
0
ii. In paragraph (c)(2), removing ``photovoltaic device as specified, 
or,'' and adding ``photovoltaic device, or,'' in its place; and
0
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)
0
9. Amend section 252.225-7018 by--
0
a. In the introductory text, removing ``225.7017-5(b)'' and adding 
``225.7017-4(b)'' in its place;
0
b. Removing clause date ``(JAN 2018)'' and adding ``(DATE)'' in its 
place;
0
c. Revising paragraphs (b)(1) and (2); and
0
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.
* * * * *

[[Page 42826]]

    (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 _____]; or
    (iii) The foreign (other than Canadian or qualifying country) 
photovoltaic devices to be utilized in performance of the contract are 
the product of _____. [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 _____]; 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 _____. [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 _____]; 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 _____. [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 
_____.]


(End of provision)

[FR Doc. 2018-18240 Filed 8-23-18; 8:45 am]
 BILLING CODE 5001-06-P


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