When issuing a formal RFQ as a small business set-aside for GSA schedule holders, which provision should be used: Trade Agreements or Buy American Act? Can we really restrict GSA contractors to the provisions of the Buy American Act (domestic end products only) when, by issuing a RFQ to GSA contractors only, we are asking them to provide supplies off of their contracts, which were established under Trade Agreements?
Very good question. The set-asides under FAR 8.405-5 just says to use the same competition rules provided under 8.405-1, 8.402-2, 8.405-3. It is silent on if tbe Buy American Act Applies. This may have to be taken up in the future. FAR 25.101(b) The cost of domestic components must exceed 50 percent of the cost of all the components. In accordance with 41 U.S.C. 431, this component test of the Buy American Act has been waived for acquisitions of COTS items (see FAR 12.505(a)). FAR 12.505 states Buy American Act does not apply to COTS items. This may not answer your question and you may have to be posed directly with the SBA.
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If it is an order under the schedule you can always add in the Buy American Act requirements if you do a Small Business Set-Aside. Check with your counsel or the GSA schedule to see if it goes against the schedule if you do this.