Collins CIV Cathy

[Pages:34]Collins CIV Cathy

From: Sent: To:

Cc: Subject:

Signed By:

Attachments:

Collins CIV Cathy Thursday, August 06, 2009 5:16 PM M_HQMC_MCFCS_Civilian; M_HQMC_MCFCS_Directors/Deputies; M_HQMC_MCFCS Enlisted; M_HQMC_MCFCS_Officer M_HQMC_LB APM 09-18 DEARS Class Deviation -- Eoreign Participation in DoD Acquisitions in Support of Operations in Afghanistan cathy.collins@usmc.mil

Attachment 1 .pdf

Attachment 1.pdf

To All,

BACKGROUND:

a. The attached DASN (A&LM) memorandum of 30 July 2008 executes a class deviation (DARS Tracking Number 2009-00007) that implements two determinations made by the Deputy Secretary of Defense. Both determinations waive requirements regarding foreign participation in future DoD acquisitions in support of operations in Afghanistan.

b. The first determination waives the World Trade Organization Government Procurement Agreement prohibition on acquisition from non-designated countries in order to allow acquisitions from the nine South Caucasus/Central and South Asian states (SC/CASA)

c. The second determination waives the Balance of Payments Program, in order to eliminate the 50 percent evaluation factor that would otherwise be applied to offers of products from the SC/CASA states received in support of operations in Afghanistan.

POLICY: For solicitations and contracts in support of operations in Afghanistan, DoD entities shall deviate from using three DFARS provisions and five DFARS clauses prescribed in DFARS 225.1101 and DFARS 225.75, and instead use the provision and clause deviations as identified in Attachment 1 and listed in the PROCEDURES section below. This policy was effective 15 July 2009 and will remain in effect until incorporated in the DFARS or otherwise rescinded.

PROCEDURES: In solicitations and contracts for acquisitions in support of operations in Afghanistan, MCFCS offices shall:

a. Use the DFARS 252.225-7000 Buy American Act--Balance of Payments Program Certificate (DEVIATION) provision identified in Attachment 1, rather than DFARS 252.225-7000 Buy American Act--Balance of Payments Program Certificate, in solicitations that meet the criteria in DFARS 225.1101(1) and are for acquisitions of supplies (other than arms, ammunition, or war materials)

b. Use the DFARS 252.225-7001 Buy American Act and Balance of Payments Program Certificate (DEVIATION) clause identified in Attachment 1, rather than DFARS 252.225-7001 Buy American Act and Balance of Payments Program Certificate, in solicitations and contracts that meet the criteria in DFARS 225.1101(2) and are for acquisitions of supplies (other than arms, ammunition, or war materials)

c. Use the DFARS 252.225-7020 Trade Agreements Certificate (DEVIATION) provision identified in Attachment 1, rather than DFARS 252.225-7020 Trade

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Agreements Certificate, in solicitations that meet the criteria in DFARS 225.1101(5)

d. Use the DFARS 252.225-7021 Trade Agreements (DEVIATION) clause identified in Attachment 1, rather than DFARS 252.225-7021 Trade Agreements, in solicitations and contracts that meet the criteria in DFARS 225.1101(6).

e. Use the DFARS 252.225-7035 Buy American Act-Free Trade Agreements-Balance of Payments Program Certificate (DEVIATION) provision (and its Alternate 1 (DEVIATION) , if required) identified in Attachment 1, rather than DFARS 252.225-7035 Buy American Act-Free Trade Agreements-Balance of Payments Program Certificate (and its Alternate 1) , in solicitations that meet the criteria in DFARS 225.1101(10)

f. Use the DFARS 252.225-7036 Buy American Act-Free Trade Agreements-Balance of Payments Program (DEVIATION) clause (and its Alternate 1 (DEVIATION), if required) identified in Attachment 1, rather than DFARS 252.225-7036 Buy American Act-Free Trade Agreements-Balance of Payments Program (and its Alternate 1), in solicitations and contracts that meet the criteria in DFARS 225.1101(11) (i) and are for acquisitions of supplies (other than arms, ammunition, or war materials)

g. Use the DFARS 252.225-7044 Balance of Payments Program-Construction Material (DEVIATION) clause identified in Attachment 1, rather than DFARS 252.225-7044 Balance of Payments Program-Construction Material, in solicitations and contracts that meet the criteria in DFARS 225.7503(a).

h. Use the DFARS 252.225-7045 Balance of Payments Program-Construction Material Under Trade Agreements (DEVIATION) clause (and its Alternate 1 (DEVIATION) , if required) identified in Attachment 1, rather than DFARS 252.225-7045 Balance of Payments Program-Construction Material Under Trade Agreements (and its Alternate 1) , in solicitations and contracts that meet the criteria in DFARS 225.7503(b).

R/cc

Cathy Collins Policy and Process Team HQMC Contracts Division (703) 695-6590 x2546 DSN 225-6590 x2546 FAX (703) 695-6382

(LBP)

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DEPARTMENT OF THE NAVY

OFFICE OF THE ASSISTANT SECRETARY (RESEARCH, DEVELOPMENT AND ACQUISITION)

1 000 NAVY PENTAGON WASHINGTON DC 20350-1000

JUL 3 0 a09

MEMORANDUM FOR DISTRIBUTION

SUBJECT:

Class Deviation to the Department of Defense Federal Acquisition Regulation Supplement (DFARS) to Implement Deputy Secretary of Defense Determinations and Findings (D&Fs) regarding Foreign Participation in DoD Acquisitions in Support of Operations in Afghanistan

The attached Director, Defense Procurement and Acquisition Policy memorandum of July 15, 2009 is forwarded for your information and action, as appropriate. This memorandum informs the DoD contracting community of a class deviation from three DFARS provisions and five DFARS clauses. This class deviation implements the two D&Fs signed by the Deputy Secretary of Defense on July 9, 2009. Under these waivers, acquisition from the nine South Caucasus/Central and South Asian (SC/CASA) states to support operations in Afghanistan is now allowed. These states are Armenia, Azerbaijan, Georgia, Kazakhstan, Kyrgyzstan, Pakistan, Tajikistan, Turkmenistan, and Uzbekistan.

Contracting Officers shall use the solicitation provisions and contract clauses in Attachment 1 in solicitations and contracts for acquisitions in support of operations in Afghanistan in accordance with the criteria in the clause prescriptions at 225.1101 and 225.7503.

This class deviation became effective July 15, 2009 and will remain in effect until incorporated in the DFARS or until otherwise rescinded. It is requested that this guidance be forwarded to all appropriate contracting personnel.

Attachment: As stated

Distribution: See next page

S~~rea~~ RDML, SC, USN DASN (A&LM)

SUBJECT:

Class Deviation to the Department of Defense Federal Acquisition Regulation Supplement (DFARS) to Implement Deputy Secretary of Defense Determinations and Findings (D&Fs) regarding Foreign Participation in DoD Acquisitions in Support of Operations in Afghanistan

Distribution: CMC (LB) MARCORSYSCOM (CT) MSC(NlO) NAVAIRSYSCOM (2.0) NAVFACENGCOM (ACQ) NAVSEASYSCOM (02) NAVSUPSYSCOM (02) ONR (02) SPAWARSYSCOM (2.0) SSP (SPN) NAVICP (02)

Copy to: AGC (RDA) DON OSBP

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ACQUISmON, TECHNOLOGY

AND LOGISTICS

OFFICE OF THE UNDER SECRETARY OF DEFENSE

3000 DEFENSE PENTAGON WASHINGTON, DC 20301.3000

JUL 15

In reply refer to DARS Tracking Number: 2009-00007

MEMORANDUM FOR COMMANDER UNITED STATES SPECIAL OPERATIONS COMMAND (ATTN: ACQUISITION EXECUTIVE)

COMMANDER UNITED STATES TRANSPORTATION COMMAND (AI7N: ACQUISITION EXECUTIVE)

DEPUTY ASSISTANT SECRETARY OF THE ARMY (PROCUREMENT), ASA (ALT)

DEPUTY ASSISTANT SECRETARY OF THE NAVY (ACQUISITION & LOGISITICS MANAGEMENT), ASN(RDA)

DEPUTY ASSISTANT SECRETARY OF THE AIR FORCE (CONTRACTING), SAF/AQC

DIRECTOR, DEFENSE CONTRACT MANAGEMENT AGENCY

EXECUTIVE DIRECTOR, ACQUISITION, TECHNOLOGY AND SUPPLY DIRECTORATE (DLA)

DIRECTORS OF DEFENSE AGENCIES DIRECTORS, DoD FIELD ACTIVITIES

SUBJECT:

Class Deviation to the Department of Defense Federal Acquisition Regulation Supplement (DFARS) to Implement Deputy Secretary of Defense Determinations and Findings (D&Fs) regarding Foreign Participation in DoD Acquisitions in Support of Operations in Afghanistan

Attached is a class deviation from three DFARS provisions and five DFARS clauses (Attachment 1) to implement determinations made by the Deputy Secretary of Defense (Attachments 2 and 3) regarding foreign participation in future DoD acquisitions in support of operations in Afghanistan.

The Deputy Secretary has waived the World Trade Organization Government Procurement Agreement prohibition on acquisitions from non-designated countries in order to allow acquisition from the nine South Caucasus/Central and South Asian states (SC/CASA): Armenia, Azerbaijan, Georgia, Kazakhstan, Kyrgyzstan, Pakistan, Tajikistan, Turkmenistan, and Uzbekistan.

The Deputy Secretary also has waived the Balance of Payments Program in order to eliminate the 50 percent evaluation factor that would otherwise be applied to offers of products from the SC/CASA states to support operations in Afghanistan.

As provided in the Deputy Secretary's determinations dated July 9, 2009, the waivers apply to a DoD acquisition of end products, construction materials, or services when the primary purpose of the acquisition is to support operations in Afghanistan. This memorandum establishes procedures to be followed by all DoD contracting officers when conducting such acquisitions or by GSA contracting officers when acting on behalf of DoD and using funds appropriated for DoD.

Contracting officers shall use the solicitation provisions and contract clauses in Attachment 1 in solicitations and contracts for acquisitions in support of operations in Afghanistan in accordance with the criteria in the clause prescriptions at 225.1101 and 225.75.

This class deviation is effective upon signature, and remains in effect until incorporated in the DFARS or until otherwise rescinded. My point of contact is Patricia Foley, who may be reached at 703-693-1145, or patricia.foley@osd.mjl.

14&D

~ha D. ssad Dire , Defense Procurement and Acquisition Policy

Attachments: As stated

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Attachment 1-- Deviation 2009-00007

252.225-7000 Buy American Act--Balance of Payments Program Certificate (DEVIATION).

Use the following provision in solicitations that meet the criteria in DFARS 225.1101(1) and are for acquisitions of supplies (other than arms, ammunition, or war materials) in support of operations in Afghanistan:

BUY AMERICAN ACT--BALANCE OF PAYMENTS PROGRAM CERTIFICATE (DEVIATION)(DATE)

(a) Definitions. "Commercially available off-the-shelf (COTS) item," "domestic end product," "foreign end product," "qualifying country," "qualifying country end product," "South Caucasus/South and Central Asia (SC/CASA) state," "SCICASA state end product," and "United States" have the meanings given in the Buy American Act and Balance of Payments Program clause of this solicitation.

(b) Evaluation. The Government--

(1) Will evaluate offers in accordance with the policies and procedures of Part 225 of the Defense Federal Acquisition Regulation Supplement, except that SC/CASA end products will be treated the same as qualifying country end products; and

(2) Will evaluate offers of qualifying country end products or SC/CASA state end products without regard to the restrictions of the Buy American Act or the Balance of Payments Program.

(c) Cert~fIcations and ideniqIcation ofcountly oforigin.

(1) For all line items subject to the Buy American Act and Balance of Payments Program clause of this solicitation, the offeror certifies that--

(i) Each end product, except those listed in paragraphs (c)(2) or (3) of this provision, is a domestic end product; and

(ii) For end products other than COTS items, components of unknown origin are considered to have been mined, produced, or manufactured outside the United States or a qualifying country.

(2) The offeror certifies that the following end products are qualifying country end products or SC/CASA state end products":

Line Item Number

Country of Origin

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Attachment I

(3) The following end products are other foreign end products, including end products manufactured in the United States that do not qualify as domestic end products, i~e., an end product that is not a COTS item and does not meet the component test in paragraph (ii) of the definition of "domestic end product":

Line Item Number

Country of Origin (If known')

(End of provision)

252.225-7001 Buy American Act and Balance of Payments Program (DEVIATION).

Use the following clause In solicitations and contracts that meet the criteria in DFARS 225.1101(2) and are for acquisitions of supplies (other than arms, ammunition, or war materials) in support of operations in Afghanistan:

BUY AMERICAN ACT AND BALANCE OF PAYMENTS PROGRAM (DEVIATION)(DATE)

(a) Definitions. As used in this clause

(1) "Commercially available off-the-shelf (COTS) item"--

(i) Means any item of supply (including construction material) that is--

(A) A commercial item (as defined in paragraph (1) of the definition of "commercial item" in section 2.101 of the Federal Acquisition Regulation);

(B) Sold in substantial quantities in the commercial marketplace; and

(C) Offered to the Government, under a contract or subcontract at any tier, without modification, in the same form in which it is sold in the commercial marketplace; and

(ii) Does not include bulk cargo, as defined in section 3 of the Shipping Act of 1984 (46 U.S.C. 40102), such as agricultural products and petroleum products.

(2) "Component" means an articje, material, or supply incorporated directly into an end product.

(3) "Domestic end product" means--

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Attachment 1

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