APPENDIX 12 ARMY PROCUREMENT PROCEDURE RE "BUY AMERICAN" ACT Subject Matter of Appendix: Supplemental regulations of the Department of the Army (Army Procurement Procedure) currently in force which prescribe policy to be followed by the Department of the Army in administration of the "Buy American" Act and contract provisions with respect thereto to be included in Army contracts (APP, Section VI, Part 1, pars. 6-000 through 6-108): "Section VI FOREIGN PURCHASES 6-000 SCOPE OF SECTION. Supplementary to, but consistent with, ASPR, Section VI, this section sets forth policies and procedures in connection with (1) statutory prohibitions on foreign purchases, and (ii) purchases from Canadian sources. PART 1 - BUY AMERICAN ACT AND OTHER STATUTORY 6-103 APPLICABILITY OF BUY AMERICAN ACT. When in doubt as to whether a given purchase is or is not 6-103.4 NONAVAILABILITY OF SUPPLIES OR MATERIALS. a. The Secretary has delegated to the Assistant Chief of Staff, G-4, Department of the Army, authority to determine under the provisions of the Buy American Act upon a proper showing of facts, that certain articles, materials, or supplies, of the class and kind to be used by the Army Establishment, or the articles, materials, or supplies from which they are manufactured, are not mined, produced, or manufactured, as the case may be, in the United States in sufficient and reasonably available commercial quantities and of a satisfactory quality; and to authorize the purchase from foreign sources, and use by the Army Establishment, of such articles, materials, or supplies from which they are manufactured, as are determined after a proper showing of fact, to be not mined, produced, or manufactured, as the case may be, in the United States in sufficient and reasonably available commercial quantities and of a satisfactory quality. This authority has been successively redelegated to the Chiefs and Assistant Chiefs of the Procurement Division and the Purchases Branch of that Division, respectively, in the Office of the Assistant Chief of Staff, G-4. A delegation has also been made to the heads of technical services (see subparagraph c below). b. ASPR 6-103.4 will be applied and used only after a determination, in writing, has been made by the Chief, Purchases Branch, Office, Assistant Chief of Staff, G-4 or by the head of the technical service, his deputy, or a general officer personally selected by him, as authorized in subparagraph c below. Requests for such determinations shall be forwarded through channels and will contain the following information: (1) Description of the item or items (include unit and quantity). (2) Estimated cost. (3) State whether duty is included in estimated (7) Brief statement as to necessity for procurement. (8) State what effort was made to procure a similar item of domestic origin (if there is no known domestic item which may be used as a reasonable substitute, so state). c. The determination referred to in subparagraph a above may be made by the heads of technical services, subject to the following: (1) This authority will not be used for exemptions under ASPR 6-104 or ASPR 6-105.1. The head of the technical service is further authorized to redelegate to the deputy of the technical service or a general officer personally selected by the head of the technical service and appropriately assigned with respect to the procurement responsibilities involved. (2) There will be forwarded once a month to the Assistant Chief of Staff, G-4, Attn: Chief, Purchases Branch, a copy of all determinations and exemptions made by the Heads of the Technical Services. All determinations and exemptions will be collected and forwarded once a month, so as to be received in Office, Assistant Chief of Staff, G-4, by the 10th of the month following the month during which the exemption was granted. (3) A determination is prepared in substantially the following form: CERTIFICATE Pursuant to the authority contained in Section a. (Statement of the items to be procured and Based upon the above showing of fact it is or manufactured, as the case may be, in the Accordingly, an exception is hereby granted d. When a determination has been made to the effect that the provisions of the Buy American Act are not applicable to the purchase, the signed copy of such determination will be attached to the voucher upon which payment is made. 6-104 AUTHORITY TO GRANT EXCEPTIONS TO BUY AMERICAN ACT. When, in the opinion of the Contracting Officer, the conditions cited in ASPR 6-104 are present, a request will be made through channels to the Secretary (address request to the Assistant Chief of Staff, G-4, Department of the Army, Attn: Chief, Purchases Branch) for the issuance of a certificate of exemption. Such requests shall be submitted in complete quadruplicate (4 copies each of basic, indorsements, and inclosures) and will contain the following information: a. Description of the item or items (include unit and quantity). b. Estimated cost. C. State whether duty is included in estimated cost (if duty is not included but normally would be included therein, give reasons for exclusion). d. If item is to be procured f.o.b. origin, show transportation costs necessary to deliver to destination. e. Country of origin. f. Name and address of proposed contractor(s), if available. g. Brief statement as to necessity for procurement. h. Funds which are available and will be obligated for the procurement. 1. Complete Justification for purchase of item of foreign source, such as excessive cost of similar items of domestic origin, loss of identification of foreign component, etc. Accompanying request will be Certificate of Exemption prepared for the signature of the Secretary. 6-105 SUPPLIES EXCEPTED FROM BUY AMERICAN ACT. 6-105.1 Exceptions Based on Unreasonable Cost. In all cases where the differential referred to in ASPR 6-105.1 is more than $5,000 but less than 25 percent and in all cases where the Contracting Officer considers the differential to be unreasonable, the matter will be submitted in accordance with APP 6-104 for determination as to unreasonable cost. 6-105.2 Foreign Books, Newspapers, Magazines, etc. It has been administratively determined by the Assistant Secretary of the Army (Materiel) that the application of the Buy American Act to the purchase of trade, text, technical, and/or scientific books, newspapers, magazines, periodicals, and printed briefs, not published in the United States, would be inconsistent with the public interest. Therefore, such supplies and materials are exempted from the provisions of the Buy American Act and may be procured without regard to country of origin. 6-106 OTHER STATUTORY PROHIBITION ON FOREIGN PURCHASES 6-106.1 Prohibition of Annual Appropriation Acts. It has been administratively determined that all the articles of food and clothing contained in the list set forth at the end of Part 1 of Section VI, ASPR, are exempt from the general prohibition of the annual appropriation act. In the case of the procurement of other items of food and clothing which the Contracting Officer believes should be excepted, request for a certificate of exemption by the Secretary will be submitted in accordance with the procedure set forth in APP 6-104. |