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    The requiring activity would like to obtain a metal working machine. Supply contract valued above $183k fall under WTO GPA. DFARS 225.401-70 lists "Metalworking machinery", which means that the trade agreement would apply. Jumping to FAR 5.202(12) contains an exception (The proposed contract action is by a Defense agency and the proposed contract action will be made and performed outside the United States and its outlying areas, and only local sources will be solicited. This exception does not apply to proposed contract actions covered by the World Trade Organization Government Procurement Agreement or a Free Trade Agreement), which means that I would need to submit a pre-solicitation notice, since I am above $183k. FAR 5.202(13) states that if staying below SAT and I would post it through GPE (guessing Sam.gov) and would allow solicitation electronically I do not need a pre-solicitation notice. What is the way forward in this scenario.


    Answer

    Based on the information you provided, I think you are right that the 40 day response time applies to your acquisition.  FAR 25.408(a) states that "if the World Trade Organization Government Procurement Agreement (WTO GPA) or a Free Trade Agreement (FTA) applies (see 25.401), the contracting officer must (1) comply with the requirements of 5.203, Publicizing and response time...."  Therefore, it appears to be a mandatory requirement and there are not any exceptions listed here.  Pursuant to FAR 5.203(h), the response time for contract action's covered by the WTO GPA or FTA must be no less than 40 days between publication of the pre-solicitation notice and receipt of offers.  If the acquisition was already identified in an annual forecast which was published, you can reduce the response time to as few as 10 days.  The rationale for the longer response time is to provide enough time for Industry to determine if there are lower price, higher quality items from trade agreement countries. 

    I don't think the exception at FAR 5.202(a)(12) or (13) are really going to help you.   However, you didn’t mention if you checked the exceptions to Trade Agreements at FAR 25.401(a) (see DFARS 225.1101(6)).  One of the exceptions that I thought might have possibilities was FAR 25.401(a)(1), acquisitions set aside for small businesses.  If you have reasonable expectation of two or more small businesses that are capable of providing the item at a reasonable price, then you could set it aside, and this would be a valid exception to Trade Agreements.    

    Also, consider FAR 25.403(c)(2) which states that the Trade Agreements "restriction does not apply to purchases of supplies by the Department of Defense from a country with which it has entered into a reciprocal agreement, as provided in departmental regulations."  DFARS 225.003 defines “Qualifying country” as ”a country with a reciprocal defense procurement memorandum of understanding or international agreement with the United States in which both countries agree to remove barriers to purchases of supplies produced in the other country or services performed by sources of the other country, and the memorandum or agreement complies, where applicable, with the requirements of section 36 of the Arms Export Control Act (22 U.S.C. 2776) and with 10 U.S.C. 2457. Accordingly, the following are qualifying countries:

    Australia

    Austria

    Belgium

    Canada

    Czech Republic

    Denmark

    Egypt

    Estonia

    Finland

    France

    Germany

    Greece

    Israel

    Italy

    Japan

    Latvia

    Lithuania

    Luxembourg

    Netherlands

    Norway

    Poland

    Portugal

    Slovenia

    Spain

    Sweden

    Switzerland

    Turkey

    United Kingdom of Great Britain and Northern Ireland.”

    You didn’t say the name of the host nation country, but if you are in one of these countries you could check the reciprocal agreement to see if it covers the item you are purchasing.  Finally, I strongly recommend discussing your question with your legal counsel because the Trade Agreements Act and FAR Part 25 Foreign Acquisitions in general is very difficult to understand and apply correctly. 

     

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