[Federal Register Volume 77, Number 50 (Wednesday, March 14, 2012)]
[Notices]
[Pages 15140-15141]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-6102]


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NATIONAL SCIENCE FOUNDATION


Notice of Buy American Waiver Under the American Recovery and 
Reinvestment Act of 2009

AGENCY: National Science Foundation (NSF).

ACTION: Notice.

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SUMMARY: NSF is hereby granting a limited exemption of section 1605 of 
the American Recovery and Reinvestment Act of 2009 (Recovery Act), 
Public Law 111-5, 123 Stat. 115, 303 (2009), with respect to the 
purchase of the deformable mirror system that will be used in the 
Advanced Technology Solar Telescope (ATST). This system is required in 
order to achieve the requisite spatial resolution to study the finest 
details of magnetic features in the solar atmosphere.

DATED: March 14, 2012.

ADDRESSES: National Science Foundation, 4201 Wilson Blvd., Arlington, 
Virginia 22230.

FOR FURTHER INFORMATION CONTACT: Ms. Anna-Lee Misiano, Division of 
Acquisition and Cooperative Support, 703-292-4339

SUPPLEMENTARY INFORMATION: In accordance with section 1605(c) of the 
Recovery Act and section 176.80 of Title 2 of the Code of Federal 
Regulations, the National Science Foundation (NSF) hereby provides 
notice that on March 6, 2012 the NSF Chief Financial Officer, in 
accordance with a delegation order from the Director of the agency, 
granted a limited project exemption of section 1605 of the Recovery Act 
(Buy American provision) with respect to the deformable mirror system 
(DMS) that will be used in the ATST. The basis for this exemption is 
section 1605(b)(2) of the Recovery Act, in that deformable mirrors of 
satisfactory quality that meet the specifications required for 
diffraction-limited observations of the sun are not produced by vendors 
in the United States in sufficient and reasonably available commercial 
quantities. The total cost of DMS, approximately $3 million, represents 
approximately 2 percent of the total $146 million Recovery Act award 
provided for construction of the ATST and about 1 percent of the total 
project cost.

I. Background

    The Recovery Act appropriated $400 million to NSF for several 
projects being funded by the Foundation's Major Research Equipment and 
Facilities Construction (MREFC) account. The ATST is one of NSF's MREFC 
projects. Section 1605(a) of the Recovery Act, the Buy American 
provision, states that none of the funds appropriated by the Act ``may 
be used for a project for the construction, alteration, maintenance, or 
repair of a public building or public work unless all of the iron, 
steel, and manufactured goods used in the project are produced in the 
United States.''
    The ATST construction is being funded under a cooperative agreement 
awarded to the Association of Universities for Research in Astronomy 
(AURA) that began in 2009. The project is currently under construction.
    Subsections 1605(b) and (c) of the Recovery Act authorize the head 
of a Federal department or agency to waive the Buy American provision 
if the head of the agency finds that: (1) Applying the provision would 
be inconsistent with the public interest; (2) the relevant goods are 
not produced in the United States in sufficient and reasonably 
available quantities and of a satisfactory quality; or (3) the 
inclusion of the goods produced in the United States will increase the 
cost of the project by more than 25 percent. If the head of the Federal 
department or agency waives the Buy American provision, then the head 
of the department or agency is required to publish a detailed 
justification in the Federal Register. Finally, section 1605(d) of the 
Recovery Act states that the Buy American provision must be applied in 
a manner consistent with the United States' obligations under 
international agreements.

II. Finding That Relevant Goods Are Not Produced in the United States 
in Sufficient and Reasonably Available Quality

    The science goals of the ATST require that the telescope operate at 
the so-called diffraction limit in order to resolve spatial features in 
the solar atmosphere with sizes of order 20 to 30 kilometers. Comparing 
this size to the average distance to the sun of about 150,000,000 
kilometers leads to the

[[Page 15141]]

conclusion that the angular size of such features as viewed from the 
Earth is very small. In order to accomplish such studies, the blurring 
effect of the earth's turbulent atmosphere needs to be removed. This is 
accomplished by an advanced system of optics known generically as 
``adaptive optics'' (AO). The heart of the AO system is a mirror that 
can change its shape more than 1,000 times per second with 
approximately 1,900 separate actuators distributed over the circular 
area of the mirror. Each actuator must be able to push and pull the 
face plate by 2.5 micrometers; by comparison, a human hair is 
approximately 80 micrometers wide. This mirror, along with its control 
electronics, cooling system, etc. constitutes the DMS. The 
specifications for the DMS include the following critical performance 
requirements:
    1. Face Sheet flatness--The DMS must have initial and repeatable 
reflective face sheet flatness to within 15.8 nanometers (root mean 
square error) for a baseline reference. (For reference, 1 micrometer 
equals 1000 nanometers.)
    2. Actuator spacing--The DMS must have an actuator spacing such 
that a population of at least 1,900 units are installed within the DMS 
footprint, which is roughly circular with 200 millimeter diameter.
    3. Actuator performance--The actuators must be capable of a 
specific and repeatable stroke length of equal to or greater than 5 
micrometers while in the ATST operational environment.
    Failure to meet any of these technical requirements would have 
severe negative impacts on the spatial resolution performance of the 
ATST and therefore on its ability to meet its scientific goals.
    AURA issued an Announcement of Opportunity in Federal Business 
Opportunities (FedBizOpps) and, subsequently, an open request for 
proposals for the design, fabrication, and testing of the DMS for the 
ATST. Proposals were received from three vendors, two of which are non-
U.S. companies. The proposals were evaluated by an internal source 
selection evaluation board on the basis of technical performance and 
best value.
    A selection plan and proposal evaluation criteria were created in 
order to equitably evaluate proposals and provide a quantitative method 
for selection of a ``best value'' proposal based on technical and 
managerial merit. The selection plan was reviewed and approved per 
AURA's internal procedures prior to receiving the proposals. Pricing 
was subsequently factored in by the reviewers to assess overall, ``best 
value.'' The evaluation criteria were weighted as described in the 
selection plan depending on the relative importance of each criteria.
    After careful technical review, the selection board recommended 
that the ATST program pursue a contract with one of the non-U.S. 
vendors as a result of their finding that only that one vendor's 
offering meets and exceeds all critical performance requirements, 
particularly the specifications concerning face sheet flattening and 
actuator performance. Furthermore, the selected vendor is also the only 
one that has experience in producing mirrors that meet ATST 
requirements for actuator spacing. The only U.S. bidder failed to meet 
the critical specification on actuator stroke and could not produce a 
mirror with the desired 1,933 total actuators with spacing of 4.33 
millimeters by 4.21 millimeters.
    AURA's conclusion is that there are no U.S. manufacturers who can 
produce a suitable DMS that meets all of the ATST requirements, so an 
exemption to the Buy American requirements is necessary.
    In the absence of a domestic supplier that could provide a DMS that 
meets or exceeds the ATST specification, AURA requested that NSF issue 
a Section 1605 exemption determination with respect to the purchase of 
a foreign-supplied, specification-compliant DMS, so that the telescope 
will meet the specific design and technical requirements that are 
necessary to deliver the image quality necessary for successful 
performance of its scientific mission. Furthermore, the project's 
market research indicated that a DMS that meets or exceeds the ATST's 
technical specifications and requirements is available from a foreign 
vendor.
    NSF's Division of Acquisition and Cooperative Support (DACS) and 
other NSF program staff reviewed the AURA exemption request submittal, 
found that it was complete, and determined that sufficient technical 
information was provided in order for NSF to evaluate the exemption 
request and to conclude that an exemption is needed and should be 
granted.

III. Exemption

    On March 6, 2012, based on the finding that no domestically 
produced deformable mirror system meets all of the ATST's technical 
specifications and requirements and pursuant to section 1605(b), the 
NSF Chief Financial Officer, in accordance with a delegation order from 
the Director of the agency signed on May 27, 2010, granted a limited 
project exemption of the Recovery Act's Buy American requirements with 
respect to the procurement of the deformable mirror system.

    Dated: March 7, 2012.
Lawrence Rudolph,
General Counsel.
[FR Doc. 2012-6102 Filed 3-13-12; 8:45 am]
BILLING CODE 7555-01-P