Questions_and_Answers_dtd_11_JAN_16.pdf

Questions and Answers January 11, 2016

Question 1: FAR Part 12 and Buy American Act: How are we to interpret these together in the same solicitation since they are both referenced? The FAR Part 12 references use of COTS and Buy American Act requires American made product, in addition, foreign companies are not allowed to participate under the solicitation. But these tanks are not commercial products as defined in FAR 2.101, so why is FAR 12 referenced? The evaluation criteria is certainly not the type contemplated under FAR Part 12 and no other procurements of these tanks have been under FAR Part 12. Since the tanks are not commercial products, all components for the tanks have to be domestic products, right?

Question 1 Answer: In accordance with FAR Part 2.101, commercial definition, the 10K, 50K, and 210K Gallon Collapsible Fuel Tanks have been determined a commercial item. Current Market Research and previous procurement history has shown that manufacturers make commercial bladders of differing sizes for storing fuel and water. Several bladder manufacturers state they sell bladders as a part of their commercial products, even though the majority of the collapsible fuel tanks are procured for the military. As the items are commercial, FAR Part 12 applies. Offerors shall provide the collapsible fuel tanks in accordance with MIL‐PRF‐32233B. The Buy American Statute, 41 U.S.C. 8301‐8305, applies to acquisitions for supplies above micro‐purchase acquisition threshold in accordance with FAR 25.1 and DFARS 225.1. Since the Buy American Statute is applicable, the procurement of specified items that are not produced in the U.S. are restricted. Please see FAR 25.1 and DFARS 225.1.

Question 2: Berry Amendment: Since this solicitation will be over the Simplified Acquisition Threshold (SAT) and will be utilizing DOD funding, and since the tanks to be delivered use synthetic fabrics and coated synthetic products covered under DFARS 252.7012, entitled “Department of Defense, Preference for Certain Domestic Commodities”, shouldn’t the Berry Amendment DFARS clause (DFARS 252.7002‐1, entitled “Department of Defense Restrictions”) be part of the solicitation? That has been true in all prior procurements for these types of tanks.

Question 2 Answer: Please verify if you meant to reference DFARS 225.7002‐1. If DFARS 225.7002‐1 is the reference being used, DFARS 225.7002‐1 is not a clause but is a subsection of the FAR on statutory restrictions.

The Berry Amendment is applicable. As such clause 252.225‐7012, Preferences for Certain Domestic Commodities, is included in the solicitation. In accordance with FAR 225.7002‐3(a), the appropriate clause has been included in the solicitation.