[Federal Register Volume 76, Number 244 (Tuesday, December 20, 2011)]
[Rules and Regulations]
[Pages 78858-78862]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-32396]
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DEPARTMENT OF DEFENSE
Defense Acquisition Regulations System
48 CFR Parts 212, 225, and 252
RIN 0750-AH43
Defense Federal Acquisition Regulation Supplement; Utilization of
Domestic Photovoltaic Devices (DFARS Case 2011-D046)
AGENCY: Defense Acquisition Regulations System, Department of Defense
(DoD).
ACTION: Interim rule.
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SUMMARY: DoD is issuing an interim rule to implement a section of the
National Defense Authorization Act for Fiscal Year 2011. The section
provides that photovoltaic devices to be utilized in performance of any
covered contract shall comply with the Buy American statute, subject to
the exceptions provided in the Trade Agreements Act of 1979 or
otherwise provided by law.
DATES: Effective date: December 20, 2011.
Comment date: Comments on the interim rule should be submitted in
writing to the address shown below on or before February 21, 2012, to
be considered in the formation of the final rule.
ADDRESSES: Submit comments identified by DFARS Case 2011-D046, using
any of the following methods:
[cir] Regulations.gov: http://www.regulations.gov.
Submit comments via the Federal eRulemaking portal by inserting
``DFARS Case 2011-D046'' under the heading ``Enter keyword or ID'' and
selecting ``Search.'' Select the link ``Submit a Comment'' that
corresponds with ``DFARS Case 2011-D046.'' Follow the instructions
provided at the ``Submit a Comment'' screen. Please include your name,
company name (if any), and ``DFARS Case 2011-D046'' on your attached
document.
[cir] Email: [email protected]. Include DFARS Case 2011-D046 in the
subject line of the message.
[cir] Fax: 703-602-0350.
[cir] Mail: Defense Acquisition Regulations System, Attn: Amy G.
Williams, OUSD (AT&L) DPAP/DARS, Room 3B855, 3060 Defense Pentagon,
Washington, DC 20301-3060.
Comments received generally will be posted without change to http://www.regulations.gov, including any personal information provided. To
confirm receipt of your comment(s), please check www.regulations.gov
approximately two to three days after submission to verify posting
(except allow 30 days for posting of comments submitted by mail).
FOR FURTHER INFORMATION CONTACT: Amy G. Williams, Defense Acquisition
Regulations System, OUSD (AT&L) DPAP/DARS, Room 3B855, 3060 Defense
Pentagon, Washington, DC 20301-3060. Telephone 703-602-0328; facsimile
703-602-0350.''
SUPPLEMENTARY INFORMATION:
I. Background
In order to implement section 846 of the National Defense
Authorization Act for Fiscal Year 2011 (Pub. L. 111-383), this interim
rule amends DFARS subpart 225.70 by adding a new section 225.7017,
Utilization of domestic photovoltaic devices, as well as an associated
provision and clause in DFARS part 252 and conforming changes to DFARS
part 212.
Photovoltaic devices produce direct current electricity from
sunlight, which can be used to provide power to things such as DoD-
owned facilities or private housing.
As specified in section 846, a ``covered contract'' is defined in
this interim rule as an energy savings performance contract, a utility
service contract, or a private housing contract, if such contract will
result in DoD ownership of photovoltaic devices, by means other than
DoD purchase as end products. DoD is deemed to own a photovoltaic
device if the device is--
(1) Installed on DoD property or in a facility owned by DoD; and
(2) Reserved for the exclusive use of DoD for the full economic
life of the device.
Prior to this definition, ownership would have required transfer of
title for the equipment to the Government. Under section 846, exclusive
use of the
[[Page 78859]]
power for the full economic life of the equipment equates to ownership
and would then require compliance with 41 U.S.C. chapter 83, Buy
American, unless DoD does not have exclusive rights to the power
generated from the device (could be under any of the scenarios
identified in (1) or (2) above) or the contract term is less than the
full economic life of the photovoltaic device.
Land leases are not included in the DFARS definition of ``covered
contract,'' because the DFARS does not cover land leases. Contracts
that include purchase of photovoltaic devices as end products are
covered under the standard DFARS Buy American--trade agreements
provisions and clauses.
Photovoltaic devices provided under any covered contract shall
comply with the Buy American statute, subject to the exceptions to that
statute provided in the Trade Agreements Act of 1979 (19 U.S.C. 2501 et
seq.) or otherwise provided by law.
Exceptions are provided for qualifying country photovoltaic
devices, Free Trade Agreement or designated country photovoltaic
devices (depending on the estimated value of the photovoltaic devices),
and other foreign photovoltaic devices, if covered by the Buy American
statute and the cost of a domestic photovoltaic device would be
unreasonable (i.e., 50 percent more than the cost of the foreign
photovoltaic device).
II. Executive Orders 12866 and 13563
Executive Orders (E.O.s) 12866 and 13563 direct agencies to assess
all costs and benefits of available regulatory alternatives and, if
regulation is necessary, to select regulatory approaches that maximize
net benefits (including potential economic, environmental, public
health and safety effects, distributive impacts, and equity). E.O.
13563 emphasizes the importance of quantifying both costs and benefits,
of reducing costs, of harmonizing rules, and of promoting flexibility.
This is a significant regulatory action and, therefore, was subject to
review under section 6(b) of E.O. 12866, Regulatory Planning and
Review, dated September 30, 1993. This rule is not a major rule under 5
U.S.C. 804.
III. Determination of Applicability
DoD has not made a determination to apply the requirement of
section 846 of the National Defense Authorization Act (NDAA) for Fiscal
Year (FY) 2011 to contracts at or below the simplified acquisition
threshold (SAT), but has determined to apply the rule to contracts for
the acquisition of commercial items.
A. Applicability to Contracts at or Below the Simplified Acquisition
Threshold
41 U.S.C. 1905 governs the applicability of laws to contracts or
subcontracts in amounts not greater than the simplified acquisition
threshold. It is intended to limit the applicability of laws to such
contracts or subcontracts. 41 U.S.C. 1905 provides that if a provision
of law contains criminal or civil penalties, or if the FAR Council
makes a written determination that it is not in the best interest of
the Federal Government to exempt contracts or subcontracts at or below
the SAT, the law will apply to them. DoD has not made that
determination. Therefore, this rule does not apply below the simplified
acquisition threshold.
B. Applicability to Contracts for the Acquisition of Commercial Items
41 U.S.C. 1906 governs the applicability of laws to contracts for
the acquisition of commercial items, and is intended to limit the
applicability of laws to contracts for the acquisition of commercial
items. 41 U.S.C. 1906 provides that if a provision of law contains
criminal or civil penalties, or if DoD makes a written determination
that it is not in the best interest of the Federal Government to exempt
commercial item contracts, the provision of law will apply to contracts
for the acquisition of commercial items.
Therefore, given that the requirements of section 846 of the NDAA
for FY 2011 were enacted to promote utilization of domestic
photovoltaic devices, DoD has determined that it is in the best
interest of the Federal Government to apply the rule to contracts for
the acquisition of commercial items, as defined at FAR 2.101. An
exception for contracts for the acquisition of commercial items would
exclude a significant portion of contracts intended to be covered by
the law, thereby undermining the overarching public policy purpose of
the law.
IV. Regulatory Flexibility Act
DoD expects that this interim rule may have a significant economic
impact on a substantial number of small entities within the meaning of
the Regulatory Flexibility Act, 5 U.S.C. 601, et seq. Therefore, an
initial regulatory flexibility analysis has been prepared and is
summarized as follows:
This interim rule implements section 846 of the National Defense
Authorization Act for Fiscal Year 2011 (Pub. L. 111-383), by providing
regulatory coverage on utilization of domestic photovoltaic devices
under certain covered contracts.
The objective of the rule is to promote utilization of domestic
photovoltaic devices under an energy savings contract, a utility
service contract, or a private housing contract, if such contract does
not include DoD purchase of photovoltaic devices as end products, but
will nevertheless result in DoD ownership of photovoltaic devices.
According to the statute, DoD is deemed to own a photovoltaic device if
the device is--
(1) Installed on DoD property or in a facility owned by DoD; and
(2) Reserved for the exclusive use of DoD for the full economic
life of the device.
The legal basis for the rule is section 846 of the National Defense
Authorization Act for Fiscal Year 2011.
This rule generally applies to other than small entities. When
purchasing renewable power generated via on-site photovoltaic devices,
DoD can either purchase the photovoltaic devices and thereby own,
operate, and maintain the devices for their full economic life (already
covered in DFARS part 225) or can do variations of the following:
a. Enter into an energy savings performance contract, which is a
contracting method in which the contractor provides capital to
facilitate energy savings projects and maintains them in exchange for a
portion of the energy savings generated. Under this arrangement, the
Government would take title to the devices during contract performance
or at the conclusion of the contract. For example, the Defense
Logistics Agency-Energy uses the master Department of Energy indefinite
delivery-indefinite quantity contract and awards task orders off that
contract. Of the 16 contractors, all are large businesses. There are
subcontracting goals that each contractor has to meet, but the ultimate
task order award is made to a large business.
b. Enter into a power purchase agreement, also referred to as a
utility service contract, for the purchase of the power output of
photovoltaic devices that are installed on DoD land or buildings, but
owned, operated, and maintained by the contractor. At the conclusion of
the contract, DoD would either require the contractor to dismantle and
remove the photovoltaic equipment, abandon the equipment in place, or
would re-compete the requirement and if the incumbent contractor is the
successful offeror, the follow-on contract would allow for continued
power purchase from the existing devices. If the incumbent contractor
is not the successful offeror,
[[Page 78860]]
the contractor would be required to dismantle and remove the devices.
Prime contractors for this type of contract would generally be large
businesses, based on the capital costs involved in these projects.
However, many developers tend to subcontract out the majority of work
to smaller companies.
We do not currently have data available on whether any of the
manufacturers of photovoltaic devices are small entities. This rule
will promote utilization of domestic photovoltaic devices, even when
the Government does not take title to the devices.
The requirements of the rule will not apply below the simplified
acquisition threshold.
Since the prime contractors subject to this rule are large
businesses, the reporting requirements will not impact small entities.
Since the photovoltaic devices are commercially available off-the-shelf
items, there will be no requirement to track to the origin of the
components, but just to inform the prime contractor of the place of
manufacture.
The rule does not duplicate, overlap, or conflict with any other
Federal rules.
DoD did not identify any significant alternatives that would
accomplish the objectives of the statute.
DoD invites comments from small business concerns and other
interested parties on the expected impact of this rule on small
entities.
DoD will also consider comments from small entities concerning the
existing regulations in subparts affected by this rule in accordance
with 5 U.S.C. 610. Interested parties must submit such comments
separately and should cite 5 U.S.C. 610 (DFARS Case 2011-D046), in
correspondence.
V. Paperwork Reduction Act
The rule imposes an information collection requirement that
requires the approval of the Office of Management and Budget under 44
U.S.C. chapter 35. However, the new DFARS provision at 252.225-7018,
Photovoltaic Devices--Certificate, does not impose additional
information collection requirements to the paperwork burden previously
approved under OMB Control Number 0704-0229, entitled ``Defense Federal
Acquisition Regulation Supplement Part 225, Foreign Acquisition, and
related clauses,'' currently approved through November 30, 2013, in the
amount of 147,944 hours. The proposed provision is a variant of the Buy
American-trade agreements provisions that are already cleared.
VI. Determination To Issue an Interim Rule
A determination has been made under the authority of the Secretary
of Defense, that urgent and compelling reasons exist to publish an
interim rule prior to affording the public an opportunity to comment.
This interim rule implements section 846 of the National Defense
Authorization Act for Fiscal Year 2011. This requirement became
effective upon enactment, January 7, 2011. This action is necessary in
order to enable contracting officers to prevent violations of the Anti-
Deficiency Act by inadvertent award of a covered contract that does not
contain the appropriate restrictions with regard to country of origin
of photovoltaic devices to be utilized in performance of the contract.
Failure to implement this requirement promptly can also have adverse
effects on the U.S. photovoltaic industry, which this statute was
designed to protect. However, pursuant to 41 U.S.C. 1707 and FAR 1.501-
3(b), DoD will consider public comments received in response to this
interim rule in the formation of the final rule.
List of Subjects in 48 CFR Parts 212, 225, and 252
Government procurement.
Ynette R. Shelkin,
Editor, Defense Acquisition Regulations System.
Therefore, 48 CFR parts 212, 225, and 252 are amended as follows:
0
1. The authority citation for 48 CFR parts 212, 225, and 252 continues
to read as follows:
Authority: 41 U.S.C. 1303 and 48 CFR chapter 1.
PART 212--ACQUISITION OF COMMERCIAL ITEMS
0
2. Amend section 212.301 in paragraph by redesignating paragraphs
(f)(iv)(F) through (L) as paragraphs (f)(iv)(G) through (M), and adding
new paragraph (f)(iv)(F) to read as follows:
212.301 Solicitation provisions and contract clauses for the
acquisition of commercial items.
(f) * * *
(iv) * * *
(F) Use the provision at 252.225-7018, Photovoltaic Devices--
Certificate, as prescribed in 225.7017-4(b).
* * * * *
PART 225--FOREIGN ACQUISITION
0
3. Add sections 225.7017 through 225.7017-4 to subpart 225.70 to read
as follows:
Subpart 225.70--Authorization Acts, Appropriations Acts, and Other
Statutory Restrictions on Foreign Acquisition
Sec.
* * * * *
225.7017 Utilization of domestic photovoltaic devices.
225.7017-1 Definitions.
225.7017-2 Restriction.
225.7017-3 Exceptions.
225.7017-4 Solicitation provisions and contract clauses.
225.7017 Utilization of domestic photovoltaic devices.
225.7017-1 Definitions.
As used in this section--
Covered contract means an energy savings performance contract, a
utility service contract, or a private housing contract awarded by DoD,
if such contract results in DoD ownership of photovoltaic devices, by
means other than DoD purchase as end products. DoD is deemed to own a
photovoltaic device if the device is--
(1) Installed on DoD property or in a facility owned by DoD; and
(2) Reserved for the exclusive use of DoD for the full economic
life of the device.
Designated country photovoltaic device, domestic photovoltaic
device, foreign photovoltaic device, Free Trade Agreement country
photovoltaic device, photovoltaic device, qualifying country
photovoltaic device, and U.S.-made photovoltaic device are defined in
the clause at 252.225-7017, Photovoltaic Devices.
225.7017-2 Restriction.
In accordance with section 846 of the National Defense
Authorization Act for Fiscal Year 2011, photovoltaic devices provided
under any covered contract shall comply with 41 U.S.C. chapter 83, Buy
American, subject to the exceptions to that statute provided in the
Trade Agreements Act of 1979 (19 U.S.C. 2501 et seq.) or otherwise
provided by law.
225.7017-3 Exceptions.
DoD requires the contractor to utilize domestic photovoltaic
devices in covered contracts, with the following exceptions:
(a) Qualifying country. Qualifying country photovoltaic devices may
be utilized in any covered contract, because 225.103(a)(i)(A) provides
an exception to the Buy American Act for products of qualifying
countries, as defined in 225.003.
(b) Buy American-unreasonable cost. For a covered contract that
utilizes photovoltaic devices valued at less than $203,000, the
exception for
[[Page 78861]]
unreasonable cost may apply (see FAR 25.103(c)). If the cost of a
foreign photovoltaic device plus 50 percent is less than the cost of a
domestic photovoltaic device, then the foreign photovoltaic device may
be utilized.
(c) Trade agreements. (1) Free Trade Agreements. For a covered
contract that utilizes photovoltaic devices valued at $25,000 or more,
photovoltaic devices may be utilized from a country covered under the
acquisition by a Free Trade Agreement, depending upon dollar threshold
(see FAR 25.4).
(2) World Trade Organization--Government Procurement Agreement. For
covered contracts that utilize photovoltaic devices that are valued at
$203,000 or more, only U.S.-made photovoltaic devices, designated
country photovoltaic devices, or qualifying country photovoltaic
devices may be utilized.
225.7017-4 Solicitation provisions and contract clauses.
(a)(1) Use the clause at 252.225-7017, Photovoltaic Devices, in
solicitations for a contract that--
(i) Is expected to exceed the simplified acquisition threshold; and
(ii) May be a covered contract, i.e., an energy savings performance
contract, a utility service contract, or a private housing contract
awarded by DoD, if such contract results in DoD ownership of
photovoltaic devices, by means other than DoD purchase as end products.
(2) Use the clause in the resultant contract if it is a covered
contract (i.e., will result in DoD ownership of photovoltaic devices,
by means other than DoD purchase as end products).
(b) Use the provision at 252.225-7018, Photovoltaic Devices--
Certificate, in solicitations containing the clause at 252.225-7017.
PART 252--SOLICITATION PROVISIONS AND CONTRACT CLAUSES
0
4. Amend section 252.212-7001 by redesignating paragraphs (b)(12)
through (30) as paragraphs (b)(13) through (31), and adding new
paragraph (b)(12) to read as follows:
252.212-7001 Contract Terms and Conditions Required to Implement
Statutes or Executive Orders Applicable to Defense Acquisitions of
Commercial Items.
* * * * *
(b) * * *
(12) ------252.225-7017, Photovoltaic Devices (DEC 2011) (Section
846 of Pub. L. 111-383).
* * * * *
0
5. Add sections 252.225-7017 and 252.225-7018 to read as follows:
252.225-7017 Photovoltaic Devices.
As prescribed in 225.7017-4(a), use the following clause:
Photovoltaic Devices (DEC 2011)
(a) Definitions. As used in this clause--
Bahrainian photovoltaic device means an article that--
(i) Is wholly manufactured in Bahrain; or
(ii) In the case of an article that consists in whole or in part
of materials from another country, has been substantially
transformed in Bahrain into a new and different article of commerce
with a name, character, or use distinct from that of the article or
articles from which it was transformed.
Canadian photovoltaic device means an article that has been
substantially transformed in Canada into a new and different article
of commerce with a name, character, or use distinct from that of the
article or articles from which it was transformed.
Caribbean Basin country photovoltaic device means an article
that--
(i) Is wholly manufactured in a Caribbean Basin country; or
(ii) In the case of an article that consists in whole or in part
of materials from another country, has been substantially
transformed in a Caribbean Basin country into a new and different
article of commerce with a name, character, or use distinct from
that of the article or articles from which it was transformed.
Designated country means--
(i) A World Trade Organization Government Procurement Agreement
(WTO GPA) country (Aruba, Austria, Belgium, Bulgaria, Canada,
Cyprus, Czech Republic, Denmark, Estonia, Finland, France, Germany,
Greece, Hong Kong, Hungary, Iceland, Ireland, Israel, Italy, Japan,
Korea (Republic of), Latvia, Liechtenstein, Lithuania, Luxembourg,
Malta, Netherlands, Norway, Poland, Portugal, Romania, Singapore,
Slovak Republic, Slovenia, Spain, Sweden, Switzerland, Taiwan (known
in the World Trade Organization as ``the Separate Customs Territory
of Taiwan, Penghu, Kinmen, and Matsu'' (Chinese Taipei)), or the
United Kingdom);
(ii) A Free Trade Agreement country (Australia, Bahrain, Canada,
Chile, Costa Rica, Dominican Republic, El Salvador, Guatemala,
Honduras, Mexico, Morocco, Nicaragua, Peru, or Singapore);
(iii) A least developed country (Afghanistan, Angola,
Bangladesh, Benin, Bhutan, Burkina Faso, Burundi, Cambodia, Central
African Republic, Chad, Comoros, Democratic Republic of Congo,
Djibouti, East Timor, Equatorial Guinea, Eritrea, Ethiopia, Gambia,
Guinea, Guinea-Bissau, Haiti, Kiribati, Laos, Lesotho, Liberia,
Madagascar, Malawi, Maldives, Mali, Mauritania, Mozambique, Nepal,
Niger, Rwanda, Samoa, Sao Tome and Principe, Senegal, Sierra Leone,
Solomon Islands, Somalia, Tanzania, Togo, Tuvalu, Uganda, Vanuatu,
Yemen, or Zambia); or
(iv) A Caribbean Basin country (Antigua and Barbuda, Aruba,
Bahamas, Barbados, Belize, Bonaire, British Virgin Islands, Curacao,
Dominica, Grenada, Guyana, Haiti, Jamaica, Montserrat, Saba, St.
Kitts and Nevis, St. Lucia, St. Vincent and the Grenadines, Sint
Eustatius, Sint Maarten, or Trinidad and Tobago).
Designated country photovoltaic device means a WTO GPA country
photovoltaic device, a Free Trade Agreement country photovoltaic
device, a least developed country photovoltaic device, or a
Caribbean Basin country photovoltaic device.
Domestic photovoltaic device means a photovoltaic device
manufactured in the United States.
Foreign photovoltaic device means a photovoltaic device other
than a domestic photovoltaic device.
Free Trade Agreement country means Australia, Bahrain, Canada,
Chile, Costa Rica, Dominican Republic, El Salvador, Guatemala,
Honduras, Mexico, Morocco, Nicaragua, Peru, or Singapore.
Free Trade Agreement country photovoltaic device means an
article that--
(i) Is wholly manufactured in a Free Trade Agreement country; or
(ii) In the case of an article that consists in whole or in part
of materials from another country, has been substantially
transformed in a Free Trade Agreement country into a new and
different article of commerce with a name, character, or use
distinct from that of the article or articles from which it was
transformed.
Least developed country photovoltaic device means an article
that--
(i) Is wholly manufactured in a least developed country; or
(ii) In the case of an article that consists in whole or in part
of materials from another country, has been substantially
transformed in a least developed country into a new and different
article of commerce with a name, character, or use distinct from
that of the article or articles from which it was transformed.
Moroccan photovoltaic device means an article that--
(i) Is wholly manufactured in Morocco; or
(ii) In the case of an article that consists in whole or in part
of materials from another country, has been substantially
transformed in Morocco into a new and different article of commerce
with a name, character, or use distinct from that of the article or
articles from which it was transformed.
Peruvian photovoltaic device means an article that--
(i) Is wholly manufactured in Peru; or
(ii) In the case of an article that consists in whole or in part
of materials from another country, has been substantially
transformed in Peru into a new and different article of commerce
with a name, character, or use distinct from that of the article or
articles from which it was transformed.
Photovoltaic device means a device that converts light directly
into electricity through a solid-state, semiconductor process.
Qualifying country means any country listed in the definition of
``qualifying country'' at 225.003 of the Defense Federal Acquisition
Regulation Supplement (DFARS).
Qualifying country photovoltaic device means a photovoltaic
device manufactured in a qualifying country.
United States means the 50 States, the District of Columbia, and
outlying areas.
[[Page 78862]]
U.S.-made photovoltaic device means a photovoltaic device that--
(i) Is manufactured in the United States; or
(ii) Is substantially transformed in the United States into a
new and different article of commerce with a name, character, or use
distinct from that of the article or articles from which it was
transformed.
WTO GPA country photovoltaic device means an article that--
(i) Is wholly manufactured in a WTO GPA country; or
(ii) In the case of an article that consists in whole or in part
of materials from another country, has been substantially
transformed in a WTO GPA country into a new and different article of
commerce with a name, character, or use distinct from that of the
article or articles from which it was transformed.
(b) This clause implements section 846 of the National Defense
Authorization Act for Fiscal Year 2011 (Pub. L. 111-383).
(c) Restriction. If the Contractor specified in its offer in the
Photovoltaic Devices--Certificate provision of the solicitation that
the estimated value of the photovoltaic devices to be utilized in
performance of this contract would be--
(1) More than $3,000 but less than $25,000, then the Contractor
shall utilize only domestic or qualifying country photovoltaic
devices unless, in its offer, it specified utilization of other
foreign photovoltaic devices in paragraph (c)(2)(ii) of the
Photovoltaic Devices--Certificate provision of the solicitation;
(2) $25,000 or more but less than $70,079, then the Contractor
shall utilize in the performance of this contract only domestic or
qualifying country photovoltaic devices unless, in its offer, it
specified utilization of Canadian or other foreign photovoltaic
devices in paragraph (c)(3)(ii) of the Photovoltaic Devices--
Certificate provision of the solicitation. If the Contractor
certified in its offer that it will utilize a qualifying country
photovoltaic device or a Canadian photovoltaic device, the
Contractor shall utilize a qualifying country photovoltaic device, a
Canadian photovoltaic device, or, at the Contractor's option, a
domestic photovoltaic device;
(3) $70,079 or more but less than $203,000, then the Contractor
shall utilize under this contract only domestic photovoltaic
devices, qualifying country photovoltaic devices, or Free Trade
Agreement country photovoltaic devices (other than Bahrainian,
Moroccan, or Peruvian photovoltaic devices), unless, in its offer,
it specified utilization of other foreign photovoltaic devices in
paragraph (c)(4)(ii) of the Photovoltaic Devices--Certificate
provision of the solicitation. If the Contractor certified in its
offer that it will utilize a qualifying country photovoltaic device
or a Free Trade Agreement country photovoltaic device (other than a
Bahrainian, Moroccan, or Peruvian photovoltaic device), the
Contractor shall utilize a qualifying country photovoltaic device; a
Free Trade Agreement country photovoltaic device (other than a
Bahrainian, Moroccan, or Peruvian photovoltaic device), or, at the
Contractor's option, a domestic photovoltaic device; or
(4) $203,000 or more, then the Contractor shall utilize under
this contract only U.S.-made, qualifying country, or designated
country photovoltaic devices.
(End of clause)
252.225-7018 Photovoltaic Devices--Certificate.
As prescribed in 225.7017-4(b), use the following provision:
Photovoltaic Devices--Certificate (DEC 2011)
(a) Definitions. Bahrainian photovoltaic device, Canadian
photovoltaic device, Caribbean Basin photovoltaic device, designated
country, domestic photovoltaic device, foreign photovoltaic device,
Free Trade Agreement country, Free Trade Agreement photovoltaic
device, least developed country photovoltaic device, Moroccan
photovoltaic device, Peruvian photovoltaic device, photovoltaic
device, qualifying country, qualifying country photovoltaic device,
United States, U.S.-made photovoltaic device, and WTO GPA country
photovoltaic device have the meanings given in the Photovoltaic
Devices clause of this solicitation.
(b) Restrictions. The following restrictions apply, depending on
the estimated value of any photovoltaic devices to be utilized under
a resultant contract:
(1) If more than $3,000 but less than $203,000, then the
Government will not accept an offer specifying the use of other
foreign photovoltaic devices in paragraph (c)(2)(ii), (c)(3)(ii), or
(c)(4)(ii) of this provision, unless the offeror documents to the
satisfaction of the Contracting Officer that the price of the
foreign photovoltaic device plus 50 percent is less than the price
of a comparable domestic photovoltaic device.
(2) If $203,000 or more, then the Government will consider only
offers that utilize photovoltaic devices that are U.S.-made,
qualifying country, or designated country photovoltaic devices.
(c) Certification and identification of country of origin. [The
offeror shall check the block and fill in the blank for one of the
following paragraphs, based on the estimated value and the country
of origin of photovoltaic devices to be utilized in performance of
the contract:]
------ (1) No photovoltaic devices will be utilized in
performance of the contract, or such photovoltaic devices have an
estimated value of $3,000 or less.
(2) If more than $3,000 but less than $25,000--
------ (i) The offeror certifies that each photovoltaic device
to be utilized in performance of the contract is a domestic
photovoltaic device or a qualifying country photovoltaic device
[Offeror to specify country of origin --------------------]; or
------ (ii) The foreign (other than qualifying country)
photovoltaic devices to be utilized in performance of the contract
are the product of --------------------. [Offeror to specify country
of origin, if known, and provide documentation that the cost of a
domestic photovoltaic device would be unreasonable in comparison to
the cost of the proposed foreign photovoltaic device.]
(3) If $25,000 or more but less than $70,079--
------ (i) The offeror certifies that each photovoltaic device
to be utilized in performance of the contract is a domestic
photovoltaic device; a qualifying country photovoltaic device; or a
Canadian photovoltaic device [Offeror to specify country of origin--
------------------]; or
------ (ii) The foreign (other than qualifying country or
Canadian) photovoltaic devices to be utilized in performance of the
contract are the product of --------------------. [Offeror to
specify country of origin, if known, and provide documentation that
the cost of a domestic photovoltaic device would be unreasonable in
comparison to the cost of the proposed foreign photovoltaic device.]
(4) If $70,079 or more but less than $203,000--
------(i) The offeror certifies that each photovoltaic device to
be utilized in performance of the contract is a domestic
photovoltaic device; a qualifying country (except Australian or
Canadian) photovoltaic device; a Free Trade Agreement country
photovoltaic device (other than a Bahrainian, Moroccan, or Peruvian
photovoltaic device) [Offeror to specify country of origin --------
------------]; or
------(ii) The offered foreign photovoltaic devices (other than
those from countries listed in paragraph (c)(4)(i) of this
provision) are the product of --------------------. [Offeror to
specify country of origin, if known, and provide documentation that
the cost of a domestic photovoltaic device would be unreasonable in
comparison to the cost of the proposed foreign photovoltaic device.]
(5) If $203,000 or more--
------The offeror certifies that each photovoltaic device to be
utilized in performance of the contract is a U.S.-made, qualifying
country, or designated country photovoltaic device. [Offeror to
specify country of origin --------------------.]
(End of provision)
[FR Doc. 2011-32396 Filed 12-19-11; 8:45 am]
BILLING CODE 5001-06-P