Attachment D - Kissel Tutorial.pdf

U.S. Department of Homeland Security DHS Uniform Program

70B01C26R00000004 Attachment D

KISSELL TUTORIAL

This solicitation contains the clause 3052.225-70 Requirement for Use of Certain Domestic Commodities (DEVIATION 13-01), also known as the “Kissell Amendment.” What does that mean to me?

It means that some of the items included in the solicitation are textile items that must meet specific requirements in order to be deliverable under the contract. It means that the Contracting Officer evaluated all of the available exceptions and the mandatory requirements and determined that the clause applies to some or all of the items in this solicitation. The solicitation will identify which items are NOT subject to the special requirements of the clause.

What are the special requirements of the clause?

The clause implements a statutory requirement that covered items must be “grown, reprocessed, reused, or produced in the United States”.

What flexibilities do I have as a supplier of an item that is covered by the clause?

The clause includes three exceptions to the requirement that covered items must be grown, reprocessed, reused, or produced in the United States.

The first exception applies “To items listed in (FAR) 48 CFR 25.104, or other items for which the Government has determined that a satisfactory quality and sufficient quantity cannot be acquired as and when needed at United States market prices.” This means that if a deliverable item includes products listed in FAR 25.104 as being unavailable in the United States, those products in those items do not have to be grown, reprocessed, reused, or produced in the United States. It also means that, if you believe an item you intend to deliver contains products that are not available in the United States and are not listed in FAR 25.104, you can seek a nonavailability exception from DHS. This can be done before or after award and can be approved only by the Chief Procurement Officer DHS.

The second exception applies “To incidental amounts of non-compliant fibers if the total value of non-compliant fibers contained in the end item does not exceed 10 percent of the total purchase price of the end item.” This means that an item meets the clause requirement that it be grown, reprocessed, reused, or produced in the United States even if it includes some portion of fibers that are not grown, reprocessed, reused, or produced in the United States. However, the combined cost of all of the noncompliant fibers in a deliverable item cannot exceed 10 percent of the price of the item. If it does exceed 10 percent, the item does not qualify under the clause and it CANNOT be delivered.

The third exception applies “to items that are eligible products per (FAR) 48 CFR Subpart 25.4.” This means that you have a choice on the country of origin for the products you deliver under the contract.

U.S. Department of Homeland Security DHS Uniform Program

70B01C26R00000004 Attachment D

You can deliver items that are grown, reprocessed, reused, or produced in the United States or you can deliver products that originate from a country that has a trade agreement with the United States if that agreement covers products procured by DHS Components. There are two lists of designated countries that have trade agreements covering procurements by DHS Components. Which list applies depends on whether TSA or another DHS Component is funding the items to be procured.

USMCA is now in force. Under the USMCA, the list of designated countries for TSA items will include only United States and Chile.

For items funded by a DHS Component other than TSA, the list of designated countries is the list that is included in the FAR (see FAR 25.4), excluding Oman. The FAR states:

“Designated country” means any of the following countries:

(1) A World Trade Organization Government Procurement Agreement country (Armenia, Aruba, Austria, Belgium, Bulgaria, Canada, Cyprus, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hong Kong, Hungary, Iceland, Ireland, Israel, Italy, Japan, Korea (Republic of), Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, Netherlands, Norway, Poland, Portugal, Romania, Singapore, Slovak Republic, Slovenia, Spain, Sweden, Switzerland, Taiwan (known in the World Trade Organization as “the Separate Customs Territory of Taiwan, Penghu, Kinmen and Matsu (Chinese Taipei))”, or United Kingdom);

(2) A Free Trade Agreement country (Australia, Bahrain, Canada, Chile, Colombia, Costa Rica, Dominican Republic, El Salvador, Guatemala, Honduras, Korea (Republic of), Mexico, Morocco, Nicaragua, Oman, Panama, Peru, or Singapore);

(3) A least developed country (Afghanistan, Angola, Bangladesh, Benin, Bhutan, Burkina Faso, Burundi, Cambodia, Central African Republic, Chad, Comoros, Democratic Republic of Congo, Djibouti, East Timor, Equatorial Guinea, Eritrea, Ethiopia, Gambia, Guinea, Guinea-Bissau, Haiti, Kiribati, Laos, Lesotho, Liberia, Madagascar, Malawi, Maldives, Mali, Mauritania, Mozambique, Nepal, Niger, Rwanda, Samoa, Sao Tome and Principe, Senegal, Sierra Leone, Solomon Islands, Somalia, Tanzania, Togo, Tuvalu, Uganda, Vanuatu, Yemen, or Zambia); or

(4) A Caribbean Basin country (Antigua and Barbuda, Aruba, Bahamas, Barbados, Belize, Bonaire, British Virgin Islands, Curacao, Dominica, Grenada, Guyana, Haiti, Jamaica, Montserrat, Saba, St. Kitts and Nevis, St. Lucia, St. Vincent and the Grenadines, Saint Eustatius, Saint Maarten, or Trinidad and Tobago).

To the extent you comply with the FAR clauses related to eligible products from designated countries, you will have met the requirements of the Kissell clause. The contract will identify which list is applicable to which items.