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  • Question

    Does Buy American Act apply to Foreign Military Sales procurements?


    We consulted a AT&L/Defense Procurement & Acquisition Policy (DPAP) subject matter expert on FMS contracting to formulate this response. 

    The DFARS, including DFARS Subpart 225.73 on FMS, is based on the general principle that the procurement requirements established in U.S. law still apply to FMS-related contracting efforts -- and should be implemented just as they would be on a US DoD 'domestic' procurement -- unless specifically stated otherwise in the law/DFARS.  This includes both Buy American Act and Berry Amendment. The normal exceptions in these laws i.e. small purchases, as implement in regulations, are typically allowable in both domestic and FMS contracting efforts.

    More generally, DPAP further advised DAU that a good rule of thumb to use is, 'The Rules Follow the Money'. When FMS case funds are deposited into the US Treasury from the foreign nation, they take on the same function and effect of U.S. appropriations, with all the same legal requirements applied when contracting on behalf of the foreign nation.

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