APPENDIX A - A-2 - Sample D_F Exception to the Buy American Statute - Non-Availability.docx
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- PANERD25P0000_001596
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This is a sample Determination and Findings (D&F) template document providing guidance for documenting exceptions to the Buy American Act based on non-availability of domestic or Trade Agreements Act (TAA)-compliant alternatives for non-IT or non-commercial supplies.
The template establishes the framework for justifying foreign procurement when domestic sources cannot meet requirements. It requires exhaustive market research demonstrating that no domestic manufacturer produces the required item and no technically acceptable equivalent exists in qualifying countries. The document mandates a mandatory National Security and Statutory Prohibitions Checklist that must be completed and verified before approval, specifically addressing Section 889 restrictions on Chinese telecommunications and surveillance equipment, Kaspersky Lab prohibitions, 10 U.S.C. 4872 restrictions on specialty metals and rare earth magnets from covered nations (China, Russia, Iran, North Korea), OFAC embargo compliance, and DoD covered technology restrictions. The D&F requires signature approval from progressively higher contracting authorities based on procurement value: Branch Chief for procurements at or below the Simplified Acquisition Threshold, Chief of the Contracting Office for procurements exceeding the SAT but below $2 million, and Senior Contracting Official for procurements of $2 million or more. This template is intended for use by contractors and contracting officers to formally document and justify exceptions to domestic sourcing requirements while maintaining strict compliance with national security restrictions.
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APPENDIX A – ATTACHMENT 2
DETERMINATION AND FINDINGS (D&F)
SUBJECT: Exception to the Buy American Statute – Nonavailability – Non-IT or Non-Commercial CONTRACT NUMBER: [Insert Contract Number] CONTRACTOR: [Insert Contractor Name] CLIN / ODC: [Insert CLIN Number / ODC Description] ESTIMATED VALUE: $[Insert Amount]
1. PURPOSE AND AUTHORITY
This Determination and Findings (D&F) is executed in accordance with the Buy American Act (41 U.S.C. §§ 8301–8305). The purpose is to formally determine that the specific non-IT or non-commercial supplies requested under the authorized ODC CLIN are not mined, produced, or manufactured in the United States (or a qualifying country) in sufficient commercial quantities and of a satisfactory quality.
2. REQUIREMENT DESCRIPTION
The Contractor requires the following item(s) to perform mission-critical requirements:
· Item Nomenclature: [Insert Description of Material/Hardware]
· Part/Model Number: [Insert Part Number]
· Intended Manufacturer & Country of Origin: [Insert Manufacturer Name and specific Country, e.g., China]
· Mission Impact: [Briefly describe the mission impact if not procured.]
3. MARKET RESEARCH AND JUSTIFICATION
The Contractor has submitted exhaustive market research demonstrating that domestic or Trade Agreements Act (TAA) compliant alternatives do not exist.
· Market Research Conducted: [Describe methods, e.g., RFI, vendor inquiries, market surveys.]
· Findings: No domestic manufacturer produces this item, and no technically acceptable equivalent is manufactured in a qualifying country.
· Reason for Foreign Sourcing: [Explain why this specific foreign source is the only viable option.]
4. NATIONAL SECURITY & STATUTORY PROHIBITIONS CHECKLIST
WARNING: A Contracting Officer's authority to waive domestic sourcing preferences does NOT override statutory National Security bans. Procurement of covered technology or materials from Covered Nations (China, Russia, Iran, North Korea) is strictly prohibited.
The Contracting Officer Representative (COR) or Technical Point of Contact (TPOC) certifies that this foreign-sourced item has been vetted against all non-waivable prohibitions:
| Prohibition Check |
| Verification Standard |
| Initials / Date |
| Section 889 (China Focus) |
| The item is NOT covered telecommunications equipment, video surveillance, or services from restricted entities (e.g., Huawei, ZTE, Hikvision, Dahua). |
| [Initials/Date] |
| Kaspersky Lab (Russia Focus) |
| The item does NOT contain hardware, software, or services developed or provided by Kaspersky Lab or related entities. |
| [Initials/Date] |
| 10 U.S.C. 4872 (Covered Nations) |
| The item does NOT contain prohibited specialty metals or rare earth magnets melted/produced in China, Russia, Iran, or North Korea. |
| [Initials/Date] |
| OFAC Embargoes |
| The item is NOT sourced from or manufactured in broadly embargoed nations (e.g., Iran, North Korea, Syria, Cuba). |
| [Initials/Date] |
| DoD Covered Tech |
| The item does NOT contain DoW/DoD restricted printed circuit boards or components posing an unacceptable supply chain risk. |
| [Initials/Date] |
5. DETERMINATION
Based on the market research and the technical certification that the item does not violate any statutory National Security prohibitions, I hereby determine that:
1. The required supplies are not mined, produced, or manufactured in the United States or a qualifying country in sufficient and reasonably available commercial quantities and of a satisfactory quality.
2. The procurement of this item from [Insert Country] is necessary to meet mission requirements.
3. An exception to the Buy American Act based on Nonavailability is justified and approved.
[Signature Block – Branch Chief (One Level Above the KO) (For procurements at or below the Simplified Acquisition Threshold) Name: ___________________________ Date: ______________ [Signature Block - Chief of the Contracting Office (CoCO)] (Required for procurements greater than the SAT but less than $2 Million) Name: ___________________________ Date: ______________ [Signature Block – Senior Contracting Official (SCO)] (Required for procurements $2 Million or more) Name: ___________________________ Date: ______________
Sample D&F – Exception to the Buy American Statute – Nonavailability Non-IT or Non-Commercial
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