non the determination concerning availability required by FAR 25.202(a)(3) will be made by the contracting officer for foreign construction material costing $100,000 or less. Each determination will be factually supported in writing and included in the contract file. (b) Field facility contracting officers must request approval of nonavailability determinations from the Deputy Assistant Secretary for Acquisition and Materiel Management (93). (c) A copy of all determinations made in accordance with paragraph (a) of this section shall be forwarded to the Deputy Assistant Secretary for Facilities (08) through the Deputy Assistant Secretary for Acquisition and Materiel Management (93). (d) Each solicitation will include the clause specified in 852.236-89. This provision reflects the general policy of not authorizing nondomestic materials on VA construction contracts. [49 FR 12611, Mar. 29, 1984, as amended at 50 FR 794, Jan. 7, 1985; 52 FR 32012, Aug. 25, 1987; 54 FR 40064, Sept. 29, 1989] 825.203 Evaluating offers. When a contracting officer believes that the requirement of the "Buy American Act" is impracticable as provided in FAR 25.202(a)(2), or that it would be advantageous to VA to deviate from the provisions of the Act as authorized by FAR 25.203, authority to consummate the contract will be requested. The request containing all the facts, including a comparison of all the bids or offers received and any other pertinent information upon which a determination may be made, will be submitted through the Deputy Assistant Secretary for Acquisition and Materiel Management (93), for approval by the Secretary. If approved, a report of the transaction will be prepared and transmitted by the Deputy Assistant Secretary for Facilities in accordance with Executive Order 10582, dated December 17, 1954, as amended. [49 FR 12611, Mar. 29, 1984, as amended at 52 FR 32012, Aug. 25, 1987; 54 FR 40064, Sept. 29, 1989] Subpart 825.3-Balance of 825.302 Policy. 825.302-70 Deviations from the Balance of Payments Program. When a contracting officer believes that the requirement of the "Balance of Payments Program" is not practicable as set forth in FAR 25.302 (b)(2) or (b)(3), he/she will request authority to consummate the contract through the Deputy Assistant Secretary for Acquisition and Materiel Management (93) for approval. Each request must be fully justified, containing all pertinent facts. 825.304 Excess and near-excess foreign currencies. 825.304-70 Determination of feasibility to use excess or near-excess foreign currency. In accordance with FAR 25.304(c), contracting officers will submit requests for determination to utilize excess or near-excess foreign currencies to the Deputy Assistant Secretary for Acquisition and Materiel Management (93). Subpart 825.6-Customs and Duties 825.603 Procedures. 825.603-70 Technical assistance. Should the regulations contained in FAR 25.6 be inadequate to meet particular needs of a contracting officer in clearing items through customs and/or obtaining Duty Free Entry of goods, the nearest Regional Office of the United States Customs Service should be contacted for technical assistance. These offices are located as follows: Regional Commissioner, U.S. Customs Service, 100 Summer St., Boston, Massachusetts 02110 Regional Commissioner, U.S. Customs Service, 99 S.E. 5th St., Miami, Florida 33131 Regional Commissioner, U.S. Customs Service, 585 Felipe St., Houston, Texas 77057 Regional Commissioner, U.S. Customs Service, 6 World Trade Center, New York, New York 10048 Regional Commissioner, U.S. Customs Service, 423 Canal St., New Orleans, Louisiana 70130 Regional Commissioner, U.S. Customs Service, 300 N. Los Angeles St., Los Angeles, California 90053 Regional Commissioner, U.S. Customs Service, 55 E. Monroe St., Chicago, Illinois 60603 Subpart 825.7-Restrictions on Certain Foreign Purchases 825.701 Policy. 825.703 Exceptions. When felt to be in the best interest of the Government, the contracting officer may request exceptions to the requirements of FAR 25.7 for purchases in excess of $10,000 from the Secretary through the Deputy Assistant Secretary for Acquisition and Materiel Management (93). Each such request must be fully justified, containing all pertinent facts. Subpart 825.8-International 825.870 Technical assistance Contracting officers may obtain technical information or guidance on international agreements and treaties for procurements outside the United States by contacting the Director, VA Marketing Center. Subpart 825.9-Omission of the Examination of Records Clause 825.902 Policy. If the contracting officer determines that the "Examination of Records Clause" should be omitted after all reasonable efforts to include the clause have failed, and providing that omission of the clause is authorized in the instances cited in FAR 25.903, he/she may request, with appropriate documentation, a determination from the Secretary, through the Deputy Assistant Secretary for Acquisition and Materiel Management (93). The Secretary, should he/she concur in the contracting officer's determination that the clause should be omitted, will then forward an agency request for omission of the clause to the Comptroller General for a final determination as required by FAR 25-903(a)(1), or submit the report required by FAR 25.903(b). [49 FR 12611, Mar. 29, 1984, as amended at 54 FR 40064, Sept. 29, 1989] 825.904 Determination and findings. All determinations to omit the "Examination of Records Clause" will be supported by a determination and findings prepared by the contracting officer containing the information set forth in FAR 25.904. The completed determinations and findings will be made a part of the contract file. One copy of the determinations and findings will be forwarded to the Deputy Assistant Secretary for Acquisition and Materiel Management (93). 828.7100 Scope of subpart. (a) This subpart sets forth the policies and procedures concerning indemnification of contractors performing contracts which involve a risk of an unusually hazardous nature, covering medical research or development as authorized by 38 U.S.C. 4101. (b) The authority to indemnify the contractor under this subpart does not create any rights to third parties which would not otherwise exist by law. (c) As used in this subpart the term "contractor" includes subcontractors of any tier under a contract containing an indemnification provision pursuant to 38 U.S.C. 4101(c)(3)(A). 828.7102 Extent of indemnification. (a) Any contract for medical research or development authorized by 38 U.S.C. 4101, the performance of which involves a risk of an unusually hazardous nature, may provide that the Government will indemnify the contractor against either or both of the following, but only to the extent that they arise out of the direct performance of the contract and to the extent not covered by the financial protection required under 828.7103. (1) Liability (including reasonable expenses of litigation or settlement) to third persons, except liability under State or Federal Workmen's Com pensation Acts to employees of the contractor employed at the site of and in connection with the contract for which indemnification is granted, for death, bodily injury, or loss of or damage to property, from a risk that the contract defines as unusually hazard ous. (2) Loss of or damage to property of the contractor from a risk that the contract defines as unusually hazard ous. (b) A contract that provides for indemnification in accordance with this subpart will also provide for: (1) Notice to the contracting officer of any claim or suit against the contractor for death, bodily injury, or loss of or damage to property; and (2) Control of or assistance in the defense by the Government, at its election, of such suit or claim for which indemnification is provided in the con tract. 828.7103 Financial protection. (a) The financial protection to cover liability to third persons and loss of or damage to the contractor's property which the contractor is required to have and maintain shall be the maximum amount of insurance available from private sources; however, the Secretary may establish a lesser amount after taking into consideration the cost and terms of private insurance. (b) The financial protection may include private insurance, private contractual indemnities, self-insurance, other proof of financial responsibility, or a combination of such forms to provide the maximum amount required. When the contractor elects to utilize self insurance, proof of such financial responsibility up to the maximum amount required will be furnished the contracting officer prior to award. Sec. PART 829-TAXES 829.000 Scope of part. Subpart 829.1-General 829.101 Resolving tax problems. Subpart 829.2-Federal Excise Taxes 829.202 General exemptions. 829.202-70 Tax exemptions for alcohol products. 829.270 Tax exempt tobacco products for State institutions. 829.270-1 Institution responsibilities and procedures. 829.270-2 Processing of order by the Department of Veterans Affairs. AUTHORITY: 38 U.S.C. 210 and 40 U.S.C. 486(c). SOURCE: 49 FR 12614, Mar. 29, 1984, unless otherwise noted. 829.000 Scope of part. This part prescribes policies and procedures for exemptions from Federal excise taxes imposed on tobacco and alcohol products for such items purchased for use in the Department of Veterans Affairs medical care program and specifies refund procedures for State and local taxes. Subpart 829.1-General 829.101 Resolving tax problems. Contracting officers will submit requests for legal advice through channels to the General Counsel. Subpart 829.2-Federal Excise Taxes 829.202 General exemptions. 829.202-70 Tax exemptions for alcohol products. (a) General. (1) The procurement of spirits free of tax for nonbeverage purposes is permitted to Government agencies by regulations of the Bureau of Alcohol, Tobacco, and Firearms (ATF) (see 27 CFR 211.231-237, 213.141146 and 240.720-722). The use of tax-free alcohol, whiskey, beer, wine and denatured spirits for nonbeverage purposes shall include but not be limited to medicinal and scientific purposes and in the treatment of patients. (2) Authority is hereby delegated to the Director, Marketing Center, Hines, Illinois, and to the Chief, Acquisition and Materiel Management Service, Department of Veterans Affairs medical facilities to sign application permits on Bureau of Alcohol, Tobacco, and Firearms (ATF) prescribed forms. This authority is not to be redelegated. (b) Whiskey, alcohol, and denatured alcohol. (1) Application forms for tax-free purchases are to be obtained from and submitted to the Director, Bureau of Alcohol, Tobacco, and Firearms, Washington, DC 20226. (2) ATF Form 1486, Specially Denatured Spirits for Use of United States, is the application/permit required for denatured spirits, and ATF Form 1444, Tax-Free Spirits for Use of United States, is required for distilled spirits (whiskey and alcohol). These are continuing permits to procure items tax free. Copies must be made available to the supplier in support of each procurement. (3) Purchases for excise tax-free whiskey and alcohol, not available through the depot can only be made from a distillery or a bonded premises. In accordance with 27 CFR 213.144, the vendor will also support each shipment with ATF 1473, Shipment and Receipt Specifically Denatured Tax-Free, or Recovered Spirits. The ATF 1473 will be completed by the accountable officer and the original copy will be forwarded to the Regional Regulatory Administrator whose address is shown in item 12 of the form. A copy of ATF 1473 will be retained in the purchase order file. (c) Wine. No tax exemption form or ATF permit is required for the tax-free procurement of wine. An extra copy of a properly executed purchase order or requisition document may be furnished to the supplier (retailer, wholesaler or winery) to facilitate record keeping. (d) Beer. Tax-free beer may be procured only from licensed breweries and only when such product is prescribed for therapeutic use of patients. The application for an ATF permit is to be submitted in letter form to the Director, Bureau of Alcohol, Tobacco, and Firearms, Washington, DC 20226. The following information is required. (1) Name and address of facility; (2) Specific purpose for which beer will be used; (3) Quantity proposed to buy each month, year, etc.; (4) Name and address of brewery; and (5) Copy of document authorizing contracting officer to sign request. A new permit is needed only when beer is to be purchased from a different |