DHS Amends HSAR to Reflect "Buy American" Limits on Acquiring Textiles Sourced Outside the U.S.
The Department of Homeland Security has issued an interim rule, effective August 17, 2009, which amends its Homeland Security Acquisition Regulation (HSAR) to reflect statutory changes limiting the acquisition of products containing textiles from sources outside the U.S.
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Comments are due by September 16, 2009.
(Certain "Buy America" provisions in The American Recovery and Reinvestment Act of 2009 (Recovery Act, Public Law 111-5), limit DHS' acquisition of foreign textile products under DHS contract actions entered into on or after August 16, 2009, using funds appropriated or otherwise made available to DHS on or before February 17, 2009.
DHS may not use those funds for the procurement of certain clothing and other textile items directly related to the national security interests of the U.S. if such items are not domestically grown, reprocessed, reused, or produced. See ITT's Online Archives or 02/17/09 news, 09021720, for BP summary of Recovery Act, also known as the Economic Stimulus bill.)
DHS Interim Rule Limits Acquisition of Textile Clothing, Tents, Etc.
DHS' interim rule adds a new 48 CFR Part 3025, Foreign Acquisitions, and amends Part 3052, Solicitation Provisions and Contract Clauses, to limit acquisition of covered items for certain DHS acquisitions above the simplified acquisition threshold (SAT) (currently $100,000), unless DHS determines that such items qualify for a statutory exception.
- CFR 3025.7002-1(a)(1)-(2) and (b) prohibit the acquisition of the following items (if directly related to U.S. national security interests), either as end products or components, if the item has not been grown, reprocessed, reused, or produced in the U.S.:
Commercial and noncommercial - (1)clothing and the materials and components thereof, other than sensors, electronics, or other items added to, and not normally associated with, clothing (and the materials and components thereof); or (2) tents, tarpaulins, covers, textile belts, bags, protective equipment (including but not limited to body armor), sleep systems, load carrying equipment (including but not limited to fieldpacks), textile marine equipment, parachutes, or bandages.
Noncommercial - (1) cotton and other natural fiber products, (2) woven silk or woven silk blends, (3) spun silk yarn for cartridge cloth, (4) synthetic fabric or coated synthetic fabric (including all textile fibers and yarns that are for use in such fabrics), (5) canvas products, (6) wool (whether in the form of fiber or yarn or contained in fabrics, materials, or manufactured articles); (7) or any item of individual equipment manufactured from or containing such fibers, yarns, fabrics, or materials.
Exclusions/Exemptions from Acquisition Limitations
- CFR 3025.7002-2 reflects the circumstances where textile items are excluded or exempt from the Recovery Act's acquisition limitations; including:
Acquisitions at or below the SAT (currently $100,000);
Acquisition of items not directly related to national security interests of the U.S.;
Acquisitions of any of the items otherwise covered by 48 CFR 3025.7002-1, if the Chief Procurement Officer determines, based on procedures described in the interim regulation, that the item grown, reprocessed, reused, or produced in the U.S. cannot be acquired as and when needed in a satisfactory quality and sufficient quantity at U.S. market prices;
Acquisitions of items listed as "non-available articles" in 48 CFR 25.104;
Emergency acquisitions by activities located outside the U.S.;
Acquisitions by vessels in foreign waters;
Acquisitions of incidental amounts of cotton, other natural fibers, wool or other item covered by 48 CFR 3025.7002-1(a)-(b) incorporated in an end product. (This is an amount for which the estimated value of the covered item is not more than 10% of the total price of the end product.)
Acquisition Restriction Must Applied Consistent With Int'l Agreements
The interim rule also implements the aspect of the law that requires that the restriction be applied in a manner consistent with U.S. obligations under international agreements.
Therefore, to the extent that DHS and its components are subject to the various United States bilateral and plurilateral free trade agreements (FTAs) and the WTO Government Procurement Agreement (GPA), DHS textile acquisitions must be consistent with those
obligations.
(See DHS' interim rule for complete interim regulations, including definitions, list of FTAs relevant for procurement, etc.)
DHS contact - Jeremy Olson (202) 447-5197
DHS interim rule (FR Pub 08/17/09) available at http://edocket.access.gpo.gov/2009/pdf/E9-19647.pdf