(a) When a determination of nonavailability is required in DFARS 225.102(b)(ii)(C) or (D), the contracting officer must prepare a request for nonavailability determination, substantially in the form described in paragraph (b) of this section, and submit it in triplicate through command channels to the appropriate authority. Each request must identify the proposed acquisition by applicable purchase request or contract number and must include:
(1) A description of the articles intended to be acquired, manufacturer's name and address, model number, and specific information pertaining to special features, performance, versatility, and so forth. Item descriptions should be identical to those reflected in the purchase request or contract, unless a copy of such document is forwarded with the request for determination;
(2) A statement of the efforts made to secure either the article required or suitable substitutes from domestic sources. List all domestic sources contacted or provide reasons why domestic sources were not contacted. Additionally, list reasons, if known, why domestic sources contacted could not or would not furnish required articles or suitable substitutes;
(3) The name and address of the proposed source (if other than the manufacturer, state reason(s) why direct purchase or purchase through an overseas contract activity as designated in 5325.190 is not feasible);
(4) The reason why purchase of foreign material or from a foreign source is necessary. Identify and explain specific portion of mission or requirement, which is of such magnitude as to override consideration to procure a domestic source end product;
(5) A description of the end use of item to be purchased and a brief description of the special function to be accomplished, such as performance of special tests or research work;
(6) The identity of the purchaser;
(7) The citation of the applicable appropriation;
(8) Under what type and number of contract the contractor is operating and what will be the disposition of articles at completion of contract when the proposed purchaser is not a Government agency but is an Air Force contractor;
(9) Whether or not payment is intended to be made before delivery is accomplished; and
(10) The estimated foreign, domestic, and total cost in the proposed acquisition.
(b) Use the following format for Nonavailability Determination required in FAR 25.102(a)(4):
DETERMINATION AND FINDINGS
OF
NONAVAILABILITYThe United States Air Force proposes under [insert purchase number, see note (1)] to acquire for public use, at an estimated cost of $[insert dollar amount] for [describe supplies], manufactured by [insert manufacturer's name, see note (2)] in [insert city and country of origin, see note (3)] from [identify the proposed offer; see note (3)].
The above described supplies are not [mined, produced, or manufactured, as the case may be] in the United States in sufficient and reasonably available commercial quantities and of a satisfactory quality.
It is determined that the provisions of the Buy American Act (41 U.S.C. lOa-d) are inapplicable to the articles enumerated above or the purchase thereof and that the same may be purchased without regard to said Act.
This Determination is made pursuant to the authority vested in the undersigned by Federal Acquisition Regulation (FAR) 25.102(b) and does not constitute justification for not using full and open competition. When it is necessary to make such a justification, the procedures of FAR 6.303 apply.
Signature of Approving Authority
NOTES:
(1) Insert purchase request number, if any. If there is no purchase request, omit "under purchase request number."
(2) Insert manufacturer's name, city, and country of origin. When the manufacturer is also the vendor, omit the remainder of the sentence starting with "from."
(3) The first paragraph of the above format is designed for the case when the purchase is to be made by the Air Force directly. If the purchase is to be made by an Air Force contractor, the word "from" must be omitted and the following must be inserted: "through [insert name of contractor] as Air Force contractor under contract number [insert contract number] from [identify the proposed source]."
(c) If the proposed purchase is excepted from the requirements of the Buy American Act under the authority of FAR 25.102(a)(4) because it consists of articles, materials, or supplies excepted under FAR 25.108, no formal determination is required, but only a statement by the buyer that the supplies being purchased do fall within the category excepted.
In lease situations, the evaluation factors in DFARS 225.5 must be applied to the total lease cost when:
(1) The foreign cost content cannot be determined; or
(2) The foreign cost content exceeds 50 percent of total lease cost. In all other instances, the evaluation factors must be applied only to the foreign cost content of the total lease cost.
In the case of intercommand acquisitions, compliance with the Buy American Act and Balance of Payments evaluation procedures is the responsibility of the contracting command except when the requiring command specifies a foreign end product, in which case, the determination is the responsibility of the requiring command.
(a) When overseas contracting support is needed, CONUS contracting activities should contact the following:
(1) In Japan (excluding Okinawa):
374 CONS/CC
Unit 5228
APO AP 96328-5228
DSN 315-225-7099 or 7199;
(2) In Okinawa:
18th CONS/LGC
Unit 5199
APO AP 96368-5199
DSN 315-634-1828;
(3) In Europe:
HQ USAFE/LGC
Unit 3050, Box 110
APO AE 09094-0110
DSN 314-480-5910.
(b) CONUS contracting activities requesting contracting support must provide, as a minimum, the information specified below to the appropriate overseas contracting activity. Additional information that would amplify and clarify the requirement is encouraged. Contracting activities must treat all requests for contracting support on a priority basis. The requesting activity must provide:
(1) A purchase request with description of the requirement including definitive specifications free of any defects that would otherwise preclude immediate contracting action;
(2) Instructions for packaging, packing, and preservation, and special instructions dictated by the nature of the commodity to be purchased, if necessary;
(3) An executed Buy American Act Determination (see DFARS 225.104(b)) if the item is not exempted;
(4) A specification or purchase description suitable for obtaining full and open competition, or necessary information, certified as complete and accurate in accordance with FAR 6.303 to support any recommendation for use of other than full and open competition;
(5) The obligation authority;
(6) The mailing address and telephone number of a single point of contact;
(7) Transportation, routing, or shipping instructions. If the foreign contractor will be required to ship requirements to multiple CONUS-based consignees, detailed shipping instructions concerning each consignee must be provided to the overseas procuring activity; and
(8) Any special distribution requirements for the contractual documents required beyond the normal distribution.
(c) Overseas contracting activities providing courtesy contracting support to CONUS-based requiring activities must, after determining all submitted documentation to be adequate, proceed with the acquisition using the certificate of conformance when appropriate. The AFO supporting the overseas contracting activity must make payments on all transactions. The CONUS requiring base must respond expeditiously to any requests of the overseas contracting activity.
(c) Requests for waivers requiring OSD approval in DFARS 225.402(c), with appropriate supporting rationale, must be sent through command contracting channels to SAF/AQCK.
(d) Requests for exclusion in DFARS 225.403, with appropriate supporting rationale, and copies of justifications in DFARS 225.403 , must be sent through command contracting channels to SAF/AQCK.
(b) The name of the impartial witness must be recorded on the abstract. This applies only to negotiated purchases, which are covered in FAR Subpart 25.4. Any challenge by an offeror to a certificate in FAR Subpart 25.4 must be referred to the following address:
Chief, Entry Licensing and Restricted Merchandise Branch
Office of Regulation and Ruling
1301 Constitution Avenue, N.W.
Washington, DC 20229
The Canadian Government has requested that all research contracts contemplated with educational institutions of Canada be cleared through a central point to prevent United States agencies from duplicating support of research projects already supported by Canadian Government agencies. Accordingly, the following procedure must govern in the placement of research contracts with Canadian educational institutions.
(a) Unclassified requests for proposal must be forwarded directly to the institution, provided two copies are forwarded concurrently to the Counselor, Defense Research and Development (DRD), Canadian Embassy, 501 Pennsylvania Avenue, Washington, DC 20001. Unless the DRD advises that the proposed institution is not in a position to undertake the research, contracting action will proceed in a normal manner.
(b) Unsolicited research proposals received from Canadian institutions involving basic research must be forwarded to the Research Operations Office, Air Force Office of Scientific Research, AFOSR/XO, Building 410, Bolling AFB, Washington, DC 20330. Those involving exploratory development, advance engineering, or advance development must be forwarded to the Directorate of Science and Technology Contracts, HQ AFMC/PKT, Wright-Patterson AFB, OH 45433-5006, (513) 257-8984 or DSN 787-8984.
(c) Unclassified research contracts awarded to Canadian educational institutions must be forwarded directly to the institution, provided a copy is forwarded concurrently to the address in (a) above and to the Chairman, Defense Research Board, National Defense Headquarters, Ottawa, Ontario, Canada K1A 0K2. Unless the institution is advised to the contrary by the DRD, the contract must be executed. Subsequent to the execution for the U.S. Government, the contracting officer must notify the DRD, Washington, DC of the date of award.
(d) Requests for proposals involving United States classified defense information must be forwarded to the International Division of the Science and Technology Directorate, HQ AFMC/STI, Wright-Patterson AFB, OH 45433-5006, (513) 257-4938 or DSN 787-4938.
(c) Conditions for use of Alternate III. Submit requests for agency head determinations in FAR 25.901(c)(1), with supporting rationale, through command contracting channels to SAF/AQCP.
(a) The Secretary of the Air Force, without delegation, may make determinations under this paragraph. These determinations are referenced in DFARS clauses 252.225-7012(b)(1), 252.225.7014(c)(1), and 252.225.7014 Alt 1(c)(1). For each request:
(1) The contracting officer will conduct market research to ensure the article or suitable substitute from a domestic source is not available.
(2) If a domestic product or source is not available, the contracting officer will notify SAF/AQCK through command channels that a domestic product or source is not available. SAF/AQCK will contact the Department of Commerce (DOC) to identify alternate domestic sources, and will notify the contracting officer and requesting command of the results.
(3) If an alternate domestic source is not identified by SAF/AQCK, a Determination and Findings (D&F) will be prepared by the Contracting Officer and forwarded through command channels to SAF/AQCK for processing.
(4) The D&F content is provided below:
(i) Content:
DETERMINATION AND FINDINGS
OF
DOMESTIC NON-AVAILABILITY
Pursuant to the authority contained in Section 9005 of Public Law 102-396, as amended, 10 U.S.C. 2241 (the "Berry Amendment") and DFARS 225.7002-2, I hereby make the following determination and findings concerning (agency), (contracting activity).
Findings:
1. The (contracting activity) proposes to purchase (description of the item(s), under contract number, _____________. The item(s) is/are produced or manufactured in (country of origin). The total estimated cost of the item(s) is/are ________________.
2. Describe the mission of the organization.
3. Describe the circumstances that preclude the buying of a domestic end item ("The Berry Amendment(10 U.S.C. 2241) requires affected items to be domestic (i.e. of domestic origin and wholly of domestic content) unless a determination is made that such product cannot be acquired as and when needed in a satisfactory quality and sufficient quantity at U.S. market prices.")
(4) Describe the market research performed, to include firms contacted.
(5) Describe the impact if the waiver is not approved.
(6) Describe any alternatives/substitutes considered and why these alternatives/substitutes are not satisfactory.
7. Provide other data that will support the request.
Determination:
It is determined that the provisions of the Berry Amendment (10 U.S.C. 2241) are inapplicable to the item(s) enumerated above and cannot be procured when needed at U.S. market prices through the existing commercial U.S. market and that the said item(s) may be purchased without regard to said Amendment.
(b) A copy of the documents submitted to the Ballistic Missile Defense Organization (BMDO) must be sent
to SAF/AQCK.
To comply with DFARS 225.7015-2(b), a D&F must be accomplished by the procuring activity and approved by the HCA, finding that:
(a) Adequate domestic supplies are not available to meet requirements in a timely manner; and
(b) Acquisition of tubes and devices manufactured outside the United States or Canada is necessary to acquire capability for national security purposes. The D&F, with supporting rationale, must be sent to SAF/AQCK to process the required certification.
The contracting officer must forward copies of reports to SAF/AQCK for transmittal to OSD.
Under Security Assistance and Management Manual, DOD 5105.38-M, Chapter 8, Section III F.3.b., the U.S. Government is not liable to an FMS purchaser after delivery by the contractor to a carrier. To ensure that evidence of shipment is readily available from the payment office, if needed to support denial of a claim against the U.S. Government by an FMS purchaser, insert the clause at 5352.225-9000, Evidence of Shipment of Foreign Military Sales (FMS) Contracts, in all FMS solicitations and contracts, except those which provide for delivery FOB destination with acceptance at destination.
(a) DOD 7290.3M and AFMAN 16-101 require FMS Line Managers to periodically review open line items on long running contracts to ensure timely case closeout and deobligation of excess funds, when there are physically complete FMS line items.
(b) Upon request, the contracting officer must help the FMS Line Manager:
(1) Determine the delivery status of supplies and services, using reports such as DD Form 250s;
(2) Review the status of unliquidated obligations. If the FMS case is physically complete and the only remaining action is settlement of final overhead costs, the contracting officer should provide a best estimate of final FMS case costs and recommend deobligation of any funds that exceed the estimate; and
(3) Verify the status of FMS line items for case closure.
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