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  • Question

    Does the Buy American Act apply to this Commercial Item


    Answer

    Unfortunately there is not enough information in the question to provide a more complete and specific answer. 

    That said, I will try to guide you along so that you can determine the answer for yourself.  You may need to conduct a little more market research however.

    Unless your acquisition has a FAR/DFARS Buy American (BA) exception or BA can be waived due to the Trade Agreements Act; then BA will apply.

    This link will bring you to a GREAT visual tool that explains how to determine if an exception or waiver exists for your acquisition scenario.  It has all of the applicable FAR?DFARS references and will guide you into determining what provision(s) and clause(s) you will need to put into your solicitation and resulting contract or order:

    https://www.dau.edu/tools/t/Buy-American-Visual-Understanding  (Note there are two additional BA related tools at https://www.dau.edu/tools#Contracting|All|Show All|recent|Buy American as well)

    In order to determine if an offered end item is a domestic product (see FAR 25.003 and DFARS 225.003) First, the Offeror certifies the “country of origin” based on applicable solicitation provision.
    To certify the item is domestic is a two-pronged test:
    1) It was manufactured, mined or produced in the U.S. and certain territories, and
    2) Cost of components rule; if the cost of U.S. components (grown, mined, produced, or manufactured) exceeds 50% of the cost of the end item, it is considered a domestic end item.
    Note: For components that are commercial-off-the-shelf (COTS) items, then the component test is waived.  In other words, it is treated as a domestic (or qualifying country) component. The component itself has to be COTS which does not sound like your situation, but maybe it is.

    How do you determine if an end item is defined as a trade agreement or qualifying country item under Trade Agreements?  A slightly different test is used.

    If it was not grown, mined or produced in that country then the Substantial Transformation test is used: 
    (i.e., transforming an article(s) into a new and different article of commerce, with a name, character, or use distinct from the original article).

     

     

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