If a contractor fails to comply with the clause at FAR 52.225-5, Buy American Act-Construction Materials, the contracting officer shall document the failure in a report and forward the report to the debarring official for consideration for debarment action in accordance with Subpart 509.4.

525.205 Solicitation provision and contract clause.

The contracting officer shall insert the provision at 552.225-75, Buy American Act Notice-Construction Materials in solicitations for construction that include the Buy American ActConstruction Materials clause at (FAR) 48 CFR 52.225-5 and have an estimated value less than $6,500,000. Alternate I shall be used for construction contracts with an estimated value of $6,500,000 or more that include the Buy American Act-Construction Materials Under European Community Agreement and NAFTA clause at (FAR) 48 CFR 52.225-15.

[59 FR 64857, Dec. 16, 1994]

Subpart 525.3-Balance of
Payments Program

525.302 Policy.

(a) Decisions under FAR 25.302(b)(3) must be supported as provided in 525.108-70(a).

(b) Use of a greater differential than provided in FAR 25.302(c) may be authorized by the HCA or a designee.

525.302-70 Procurements for agencies under the Foreign Assistance Act.

When a contracting activity enters into contracts as the agent for an agency governed by the Foreign Assistance Act (22 U.S.C. 2151 et seq.) such as the Agency for International Development (AID), such contracts are governed by the policies and procedures of the agency and not by FAR 25.3 and 525.3.

525.304 Excess and near-excess foreign currencies.

When a contracting activity procures articles or services for use outside the United States for another agency, it will be assumed (unless a specific notation is made on the purchase request) that use of excess or near excess foreign currencies has been considered by the requisitioning agency and that such currencies are not available.

525.371 Restricted solicitation.

(a) Specific written estimates of comparative delivered prices of end products or service of domestic origin versus foreign origin made by the requisitioning office before submitting a purchase request is not required by the contracting activity. Procurements made directly for other agencies of items to be used outside the United States will be made under the Balance of Payments Program, except for agencies supported by GSA that come under the Foreign Assistance Act; e.g., AID and the Bureau of International Narcotics Matters.

(b) Before procuring any item for GSA use outside the United States, cost estimates must be made before restricting competition to U.S. end products or services.

Subpart 525.4-Purchases Under the Trade Agreements Act of 1979 525.402 Policy.

(a) Under (FAR) 48 CFR 25.402(a), when the estimated value of all items or products (exclusive of any item or product within any of the exceptions described in (FAR) 48 CFR 25.403) listed in the solicitation exceeds the Trade Agreements Act threshold, contracting officers shall evaluate offers without regard to the restrictions of the Buy

American Act or the Balance of Payments Program.

(b) As a result of the General Services Administration Board of Contract Appeals (GSBCA) decision in the protest of International Business Machines Corporation, GSBCA no. 10532– P, May 18, 1990, contracting officers are hereby authorized to deviate from the FAR provision at 52.225-8, Buy American Act-Trade Agreements Act-Balance of Payment Program Certificate and FAR clause at 52.225-9, Buy American Act-Trade Agreements Act-Balance of Payment Program, in solicitations and contracts that are subject to the Trade Agreements Act by incorporating the provision and clause prescribed in 525.407(a).

(c) When acquiring eligible products without full and and open competition using the authorities in FAR 6.3023(a)(2)(i) or 6.302-7, a copy of the approved justification must be furnished to the Associate Administrator for Acquisition Policy for subsequent transmittal to the U.S. Trade Representative.

[54 FR 26535, June 23, 1989, as amended at 54 FR 33554, Aug. 15, 1989; 55 FR 32635, Aug. 10, 1990; 57 FR 42708, Sept. 16, 1992; 59 FR 64857, Dec. 16, 1994]

525.402-70 Delegation of limited waiver authority.

(a) The U.S. Trade Representative, under section 302(b) of the Trade Agreements Act (Act), has authorized the Administrator of General Services to waive, under limited specified circumstances and on a case-by-case basis, the purchasing prohibition in section 302(a)(1) of the Act.

(b) The Administrator has delegated to the HCA authority to waive the purchasing prohibition in paragraph (a) of this section, in cases where in response to a solicitation:

(1) There are no responsive bids or technically acceptable offers received from responsible offerors of U.S. or designated country end products, or

(2) Responsible offerors do not offer a sufficient quantity to meet the Government's requirements.

(c) A copy of any waiver under paragraph (b) of this section must be furnished to the Associate Administrator for Acquisition Policy for transmittal to the U.S. Trade Representative.

525.406 Agencies covered by the Agreement on Government Procurement.

The exclusion provided for in FAR 25.406 for the Tools Commodity Center applies only to purchases of items in Groups 51 and 52 by the Tools Commodity Center Procurement Division of the International, Tools, and Appliances Commodity Center and to the Tools Material Management Division in Region 6.

[55 FR 38552, Sept. 19, 1990]

525.407 Solicitation provision and contract clause.

(a) The contracting officer shall insert the provision at 552.225-8, Trade Agreements Act Certificate, and the clause at 552.225-9, Trade Agreements Act, in solicitations and contracts subject to the Trade Agreements Act in lieu of the FAR provision at 52.225-8 and the clause at 52.225–9.

(b) The contracting officer shall insert the clause at 552.225-72, Eligible Products From Nondesignated Countries-Waiver, in solicitations and contracts subject to the Trade Agreements Act.

[57 FR 42708, Sept. 16, 1992]

PART 527-PATENTS, DATA, AND COPYRIGHTS

AUTHORITY: 40 U.S.C. 486(c).

SOURCE: 54 FR 26538, June 23, 1989, unless otherwise noted.

(a) The contracting officer shall insert the clause at 552.227-70, Government Rights (Unlimited), in lieu of the clause at FAR 52.227-17, Rights in Data-Special Works, in contracts for architect-engineer services and construction involving architect-engineer services, except when the clause at 552.227-71 is required.

(b) The contracting officer shall substitute the clause at 552.227-71, Drawings and Other Data to Become Property of Government, for the clauses at 552.227-70 and FAR 52.227-17 in contracts for architect-engineer services and construction involving architectengineer services, when the sole property rights and exclusive control over the design and data are required by the Government.

AUTHORITY: 40 U.S.C. 486(c).

SOURCE: 54 FR 26538, June 23, 1989, unless otherwise noted.

Subpart 528.1-Bonds

528.101 Bid guarantee. 528.101-1 Policy on use.

(a) Construction contracts. (1) Bid guarantees must not be required for contracts awarded under section 8(a) of the Small Business Act as amended (15 U.S.C. 637(a)).

(2) Unless waived under FAR 28.1011(c), bid guarantees must be required for construction contracts (except section 8(a) contracts) that do not exceed $25,000 when it is determined under 528.102-1(b) that a performance bond is essential to protect the Government's interest.

(b) Building service contracts. Unless waived by the HCA, bid guarantees must be required for building service contracts in excess of $25,000 when it is determined under 528.103-2 that a performance bond is essential to protect the Government's interest.

(c) All other contracts. Refer to FAR 28.101 for guidance on the use of bid guarantees.

528.101-3 Contract clause.

(a) The contracting officer shall insert a clause substantially the same as the clause at 552.228-70, Bid Guarantee and Bonds, in solicitations and contracts when a construction contract or a contract for dismantling, demolition, or removal of improvements is contemplated and a bid guarantee and bond requirement is to be included.

(b) The contracting officer shall insert a clause substantially the same as the clause at 552.228-71, Bid Guarantee, in solicitations and contracts when a

(a) The performance and payment bond requirements in FAR 28.102-1 apply to contracts awarded under section 8(a) of the Small Business Act unless the requirement has been waived by SBA under section 8(a)(2) of the Small Business Act, as amended.

(b) Performance and/or payment bonds may be required on a case-bycase basis for construction contracts that do not exceed $25,000 if a written determination is made by the contracting officer and approved by the contracting director indicating that they are essential to protect the Government's interest.

528.103 Performance and payment bonds for other than construction contracts.

528.103-2 Performance bonds.

(a) Performance bonds shall not be required for building service contracts unless a written determination is made by the contracting officer explaining why the bond is essential to protect the Government's interest and justifying the additional cost of the bonding requirement.

(b) Performance bonds must not be required for building service contracts awarded under section 8(a) of the Small Business, Act as amended (15 U.S.C. 637(a)), or contracts awarded to workshops for the blind or other severely handicapped under the Javits-WagnerO'Day Act, as amended (41 U.S.C. 4648c).

(c) The contracting officer shall consider the circumstances and determine the penal amount of the performance bond on a case-by-case basis.

(d) The contracting officer shall insert a clause substantially the same as the clause at 552.228-72, Performance Bond, in solicitations and contracts when a building service or other service contract is contemplated and a performance bond requirement is to be included. The clause should be appropriately modified to delete references

to the base term and options to extend the term of the contract when the solicitation does not include an option provision.

[54 FR 26538, June 23, 1989, as amended at 55 FR 5223, Feb. 14, 1990; 60 FR 54956, Oct. 27, 1995]

528.103-3 Payment bonds.

(a) Payment bonds may be required for other than construction contracts when the contracting director determines, under FAR 28.103-3, that such a requirement is in the Government's interest.

(b) The contracting officer shall consider the circumstances and determine the penal amount of the payment bond on a case-by-case basis.

(c) The contracting officer shall insert a clause substantially the same as the clause at 552.228-73, Performance and Payment Bonds, in solicitations and contracts when a building service or other service contract is contemplated and a performance and payment bond requirement is to be included. The clause should be appropriately modified to delete references to the base term and options to extend the term of the contract when the contract does not include an option provision.

[54 FR 26538, June 23, 1989, as amended at 55 FR 5223, Feb. 14, 1990]

528.203-7 Exclusion of individual sureties.

(a) The Associate Administrator for Acquisition Policy or designee excludes individuals from acting as a surety on bonds under FAR 28.203-7.

(b) Referrals for consideration of exclusion must include as a minimum: (1) The basis for exclusion (see FAR 28.203-7(b));

(2) A statement of facts;

(3) Copies of supporting documentary evidence;

(4) The individuals name and current or last known home and or business addresses including zip codes;

(5) A statement of GSA's history with such individuals, if any; and

(6) A statement concerning any known active or potential criminal investigations or court proceedings.

[55 FR 5223, Feb. 14, 1990]

528.204 Options in lieu of sureties.

(a) An irrevocable letter of credit may be accepted as a bid guarantee under FAR clause 52.228-1, Bid Guarantee.

(b) Security deposited instead of corporate or individual sureties on bonds must be safeguarded as provided in procedures issued by the Office of the Comptroller immediately after they are received. United States bonds or notes received in the District of Columbia must be deposited with the Treasurer of the United States as provided in FAR 28.204-1.

[55 FR 5224, Feb. 14, 1990]

(a) Insurance requirements must be adequate, just, and reasonable, and should be predicated on potential loss or damage (not necessarily on the value of the contract). When it is determined that insurance coverage should be required, the solicitation and resultant contract must contain the appropriate provisions prescribed in FAR 28.309, 28.310, or 28.311. The determination as to the type of insurance, amount, and any related insurance requirements must be made by the contracting officer with the advice of assigned legal counsel. All premiums or costs incurred to comply with an insurance requirement must be paid by the contractor.

(b) Submission of a current certificate of insurance indicating the amount and coverage, to the contracting officer, will serve as certification that the required insurance has been obtained.

528.310 Contract clause for work on a Government installation.

The contracting officer shall insert the clause at 552.228-75,Workmen's Compensation Laws, in solicitations and contracts when the contract amount is expected to exceed the simplified acquisition threshold and the