Government Contracts Monitor

Short-Take: Opportunity to Help Shape List of Domestically Nonavailable Articles

April 7, 2015

By: Eric Whytsell

In general, the Buy American Act (BAA) aims to ensure that, subject to certain exceptions, only domestically mined, produced, or manufactured articles are procured for public use in the United States. One of the recognized BAA exceptions applies to articles not mined, produced, or manufactured in the United States in sufficient and reasonably available commercial quantities and of a satisfactory quality. FAR 25.103(b)(1) provides that articles listed at FAR 25.104(a) meet the conditions of this exception. Being included on the list may mean that there is no domestic source for the items in question, but it may also reflect a finding that domestic sources can only meet 50 percent or less of total U.S. Government and nongovernment demand for the item. Pursuant to FAR 25.104(b), the list is reviewed every five years. Review time has come again.

The FAR Councils recently announced they are considering amending the FAR 25.104(a) list of items falling within the exception and are seeking information that will help identify domestic capabilities and determine whether some articles currently listed as domestically nonavailable are now actually mined, produced, or manufactured in the United States in sufficient and reasonably available commercial quantities and of a satisfactory quality.

As a result, companies with information that may be helpful to a determination of what items should – or should not—fall within the domestically nonavailable exception to the BAA now have an opportunity to impact the shape of the FAR 25.104(a) list for the next five years. Interested parties should submit written comments to the Regulatory Secretariat at one of the addressees set forth in the Federal Register announcement on or before May 26, 2015 to be considered in the formulation of a proposed rule.

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