Rule2024-02798
Federal Acquisition Regulation: Trade Agreements Thresholds
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
February 23, 2024
Effective
February 23, 2024
Issuing agencies
Defense DepartmentGeneral Services AdministrationNational Aeronautics and Space Administration
Abstract
DoD, GSA, and NASA are issuing a final rule amending the Federal Acquisition Regulation (FAR) to incorporate revised thresholds for application of the World Trade Organization Government Procurement Agreement and the Free Trade Agreements, as determined by the United States Trade Representative.
Full Text
<html>
<head>
<title>Federal Register, Volume 89 Issue 37 (Friday, February 23, 2024)</title>
</head>
<body><pre>
[Federal Register Volume 89, Number 37 (Friday, February 23, 2024)]
[Rules and Regulations]
[Pages 13961-13964]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2024-02798]
-----------------------------------------------------------------------
DEPARTMENT OF DEFENSE
GENERAL SERVICES ADMINISTRATION
NATIONAL AERONAUTICS AND SPACE ADMINISTRATION
48 CFR Parts 22, 25, and 52
[FAC 2024-03; FAR Case 2023-012; Item II; Docket No. FAR-2023-0012;
Sequence No. 1]
RIN 9000-AO62
Federal Acquisition Regulation: Trade Agreements Thresholds
AGENCY: Department of Defense (DoD), General Services Administration
(GSA), and National Aeronautics and Space Administration (NASA).
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: DoD, GSA, and NASA are issuing a final rule amending the
Federal Acquisition Regulation (FAR) to incorporate revised thresholds
for application of the World Trade Organization Government Procurement
Agreement and the Free Trade Agreements, as determined by the United
States Trade Representative.
DATES: Effective date: February 23, 2024.
FOR FURTHER INFORMATION CONTACT: Mr. Michael O. Jackson, Procurement
Analyst, at 202-208-4949 or by email at <a href="/cdn-cgi/l/email-protection#6b060208030a0e070445010a08001804052b0c180a450c041d"><span class="__cf_email__" data-cfemail="84e9ede7ece5e1e8ebaaeee5e7eff7ebeac4e3f7e5aae3ebf2">[email protected]</span></a> for
clarification of content. For information pertaining to status or
publication schedules, contact the Regulatory Secretariat Division at
202-501-4755 or <a href="/cdn-cgi/l/email-protection#d89f8b998abdbf8bbdbb98bfabb9f6bfb7ae"><span class="__cf_email__" data-cfemail="eea9bdafbc8b89bd8b8dae899d8fc0898198">[email protected]</span></a>. Please cite FAC 2024-03, FAR case
2023-012.
SUPPLEMENTARY INFORMATION:
I. Background
Approximately every two years, the trade agreements thresholds for
the World Trade Organization Government Procurement Agreement (WTO GPA)
and the free trade agreements (FTAs) are adjusted according to
predetermined formulae under the agreements. These thresholds are
effective as of January 1, 2024. On December 8, 2023 (88 FR 85718), the
United States Trade Representative (USTR) published new procurement
thresholds.
The United States Trade Representative has specified the following
new thresholds:
----------------------------------------------------------------------------------------------------------------
Supply Service Construction
contract contract contract
Trade agreement (equal to or (equal to or (equal to or
exceeding) exceeding) exceeding)
----------------------------------------------------------------------------------------------------------------
WTO GPA $174,000 $174,000 $6,708,000
FTAs:
Australia FTA............................................... 102,280 102,280 6,708,000
Bahrain FTA................................................. 174,000 174,000 13,296,489
Dominican Republic-Central America-United States Free Trade 102,280 102,280 6,708,000
Agreement (CAFTA-DR) (Costa Rica, Dominican Republic, El
Salvador, Guatemala, Honduras, and Nicaragua)..............
Chile FTA................................................... 102,280 102,280 6,708,000
Colombia FTA................................................ 102,280 102,280 6,708,000
Korea FTA................................................... 100,000 100,000 6,708,000
Morocco FTA................................................. 174,000 174,000 6,708,000
United States-Mexico-Canada Agreement (USMCA):
--Mexico.................................................... 102,280 102,280 13,296,489
Oman FTA.................................................... 174,000 174,000 13,296,489
Panama FTA.................................................. 174,000 174,000 6,708,000
Peru FTA.................................................... 174,000 174,000 6,708,000
Singapore FTA............................................... 102,280 102,280 6,708,000
Israeli Trade Act........................................... 50,000 .............. ..............
----------------------------------------------------------------------------------------------------------------
[[Page 13962]]
II. Discussion and Analysis
This final rule implements the new thresholds in FAR subpart 25.4,
Trade Agreements, and other sections in the FAR that include trade
agreements thresholds (i.e., FAR 22.1503, 25.202, 25.402, 25.603,
25.1101, and 25.1102).
A group of FTAs have been at the $92,319 threshold and are
increasing to $102,280. This group includes the Australia, Chile,
Colombia, and Singapore FTAs, CAFTA-DR, and Mexico in the USMCA. The
2024 threshold change places these FTAs above the $100,000 Korea FTA
threshold, instead of beneath it. These new thresholds do not work with
the pre-existing framework in the FAR. The Korea FTA at $100,000 and
above previously fit alongside the Australia FTA/CAFTA-DR group at
$92,319 and above, but this will no longer be so because there can no
longer be any values that are less than the Korea FTA threshold, but
greater than the Australia FTA/CAFTA-DR group threshold. Three primary
changes were made to fix the framework.
1. At FAR 25.1101, the prescription for Alternate II of FAR 52.225-
3, Buy American--Free Trade Agreements--Israeli Trade Act, is changed
so that it no longer applies to the Australia FTA/CAFTA-DR group, but
instead only to the Israeli Trade Act. There are no changes to the
Alternate II language.
2. At FAR 25.1101, the prescription for Alternate III of FAR
52.225-3 is changed so that it only applies to the Korea FTA and
Israeli Trade Act. Application of the Australia FTA/CAFTA-DR group
moves into the base clause of FAR 52.225-3.
3. A change to the Alternate III language was needed due to the
change in the prescription. DoD, GSA, and NASA deleted the definition
of ``Bahraini, Moroccan, Omani, Panamanian, or Peruvian end product,''
and in its place added a definition of ``Korean end product.'' DoD,
GSA, and NASA also added a corresponding change in the prescription and
Alternate III of FAR 52.225-4, Buy American--Free Trade Agreements--
Israeli Trade Act Certificate.
In addition, changes are required to the provisions at FAR 52.204-
8, Annual Representations and Certifications, and 52.212-3, Offeror
Representations and Certifications--Commercial Products and Commercial
Services, and to the clause at FAR 52.222-19, Child Labor--Cooperation
with Authorities and Remedies, with conforming changes to the clause
dates in FAR 52.212-5, Contract Terms and Conditions Required to
Implement Statutes or Executive Orders--Commercial Products and
Commercial Services, and FAR 52.213-4, Terms and Conditions--Simplified
Acquisitions (Other Than Commercial Products and Commercial Services).
III. Publication of This Final Rule for Public Comment Is Not Required
by Statute
The statute that applies to the publication of the FAR is 41 U.S.C.
1707. Subsection (a)(1) of 41 U.S.C. 1707 requires that a procurement
policy, regulation, procedure, or form (including an amendment or
modification thereof) must be published for public comment if it
relates to the expenditure of appropriated funds and has either a
significant effect beyond the internal operating procedures of the
agency issuing the policy, regulation, procedure, or form, or has a
significant cost or administrative impact on contractors or offerors.
This final rule is not required to be published for public comment,
because it only adjusts the thresholds according to predetermined
formulae to adjust for changes in economic conditions, thus maintaining
the status quo, without significant effect beyond the internal
operating procedures of the Government and without a significant cost
or administrative impact on contractors or offerors.
IV. Expected Impact of the Rule
This final rule will adjust the thresholds for application of the
WTO GPA and FTAs, as determined by the USTR. For acquisitions covered
by the WTO GPA or FTAs, the USTR has waived the Buy American statute
and other discriminatory provisions for eligible products. As a result,
eligible products and services will receive equal consideration with
domestic offers if the estimated value of the contract meets or exceeds
the new thresholds set by the USTR. This rule is not expected to
significantly impact domestic offerors or offerors covered by the WTO
GPA or a FTA because the threshold adjustments made under this rule
simply accommodate changes in economic conditions, while maintaining
the status quo.
V. Applicability to Contracts at or Below the Simplified Acquisition
Threshold (SAT) and for Commercial Products (Including Commercially
Available Off-the-Shelf (COTS) Items), or for Commercial Services
This rule amends the FAR to make minor revisions in the thresholds
for application of the WTO GPA and the FTAs. The revisions do not add
any new burdens or, except for the thresholds changes themselves,
impact applicability of clauses and provisions at or below the
simplified acquisition threshold, to acquisitions of commercial
products (including commercially available off-the-shelf items), or to
acquisitions of commercial services.
VI. Executive Orders 12866 and 13563
Executive Orders (E.O.s) 12866 (as amended by E.O. 14094) and 13563
direct agencies to assess the costs and benefits of available
regulatory alternatives and, if regulation is necessary, to select
regulatory approaches that maximize net benefits (including potential
economic, environmental, public health and safety effects, distributive
impacts, and equity). E.O. 13563 emphasizes the importance of
quantifying both costs and benefits, of reducing costs, of harmonizing
rules, and of promoting flexibility. This is not a significant
regulatory action and, therefore, was not subject to review under
Section 6(b) of E.O. 12866, Regulatory Planning and Review, dated
September 30, 1993.
VII. Congressional Review Act
Pursuant to the Congressional Review Act, DoD, GSA, and NASA will
send this rule to each House of the Congress and to the Comptroller
General of the United States. The Office of Information and Regulatory
Affairs (OIRA) in the Office of Management and Budget has determined
that this rule does not meet the definition in 5 U.S.C. 804(2).
VIII. Regulatory Flexibility Act
Because a notice of proposed rulemaking and an opportunity for
public comment are not required to be given for this rule under 41
U.S.C. 1707(a)(1) (see section III of this preamble), the analytical
requirements of the Regulatory Flexibility Act (5 U.S.C. 601-612) are
not applicable. Accordingly, no regulatory flexibility analysis is
required, and none has been prepared.
IX. Paperwork Reduction Act
This rule affects the information collection requirements in the
provisions at FAR 52.225-2, 52.225-4, 52.225-6, and 52.225-10, and the
clauses at FAR 52.225-9, 52.225-11, 52.225-21, and 52.225-23, currently
approved under OMB Control Number 9000-0024, entitled ``Buy American
Act, Trade Agreements, and Duty-Free Entry,'' in accordance with the
Paperwork Reduction Act (44 U.S.C. 3501-3521). The impact, however, is
negligible, because the threshold changes are in line with inflation
and
[[Page 13963]]
maintain the status quo. As a result, there is no change to the
estimated burden.
List of Subjects in 48 CFR Parts 22, 25, and 52
Government procurement.
William F. Clark,
Director, Office of Government-wide Acquisition Policy, Office of
Acquisition Policy, Office of Government-wide Policy.
Therefore, DoD, GSA, and NASA amend 48 CFR parts 22, 25, and 52 as
set forth below:
0
1. The authority citation for 48 CFR parts 22, 25, and 52 continues to
read as follows:
Authority: 40 U.S.C. 121(c); 10 U.S.C. chapter 4 and 10 U.S.C.
chapter 137 legacy provisions (see 10 U.S.C. 3016); and 51 U.S.C.
20113.
PART 22--APPLICATION OF LABOR LAWS TO GOVERNMENT ACQUISITIONS
22.1503 [Amended]
0
2. Amend section 22.1503 by--
0
(a) Removing from paragraph (b)(2) ``$92,319'' and adding ``$102,280''
in its place; and
0
(b) Removing from paragraph (b)(3) ``$183,000'' and adding ``$174,000''
in its place.
PART 25--FOREIGN ACQUISITION
25.202 [Amended]
0
3. Amend section 25.202 by removing from paragraph (c) ``$7,032,000''
and adding ``$6,708,000'' in its place.
0
4. Amend section 25.402 in paragraph (b) by revising table 1 to read as
follows:
25.402 General.
* * * * *
(b) * * *
Table 1 to Paragraph (b)
----------------------------------------------------------------------------------------------------------------
Supply Service Construction
contract contract contract
Trade agreement (equal to or (equal to or (equal to or
exceeding) exceeding) exceeding)
----------------------------------------------------------------------------------------------------------------
WTO GPA......................................................... $174,000 $174,000 $6,708,000
FTAs:
Australia FTA............................................... 102,280 102,280 6,708,000
Bahrain FTA................................................. 174,000 174,000 13,296,489
CAFTA-DR (Costa Rica, Dominican Republic, El Salvador, 102,280 102,280 6,708,000
Guatemala, Honduras, and Nicaragua)........................
Chile FTA................................................... 102,280 102,280 6,708,000
Colombia FTA................................................ 102,280 102,280 6,708,000
Korea FTA................................................... 100,000 100,000 6,708,000
Morocco FTA................................................. 174,000 174,000 6,708,000
USMCA:
--Mexico.................................................... 102,280 102,280 13,296,489
Oman FTA.................................................... 174,000 174,000 13,296,489
Panama FTA.................................................. 174,000 174,000 6,708,000
Peru FTA.................................................... 174,000 174,000 6,708,000
Singapore FTA............................................... 102,280 102,280 6,708,000
Israeli Trade Act........................................... 50,000 .............. ..............
----------------------------------------------------------------------------------------------------------------
25.603 [Amended]
0
5. Amend section 25.603 by removing from paragraph (c)(1)
``$7,032,000'' and adding ``$6,708,000'' in its place.
25.1101 [Amended]
0
6. Amend section 25.1101 by--
0
a. Removing from paragraph (b)(1)(i)(A) ``$183,000'' and adding
``$174,000'' in its place;
0
b. Removing from paragraph (b)(1)(ii) ``$92,319'' and adding
``$100,000'' in its place;
0
c. Removing from paragraph (b)(1)(iii) ``$92,319'' and ``$100,000'' and
adding ``$100,000'' and ``$102,280'' in their places, respectively;
0
d. Removing from paragraph (b)(2)(ii) ``$92,319'' and adding
``$100,000'' in its place;
0
e. Removing from paragraph (b)(2)(iii) ``$92,319'' and ``$100,000'' and
adding ``$100,000'' and ``$102,280'' in their places, respectively;
0
f. Removing from paragraph (c)(1) ``$183,000'' and adding ``$174,000''
in its place; and
0
g. Removing from paragraph (d) ``$183,000'' and adding ``$174,000'' in
its place.
25.1102 [Amended]
0
7. Amend section 25.1102 by--
0
a. Removing from the introductory text of paragraphs (a) and (c)
``$7,032,000'' and adding ``$6,708,000'' in their places; and
0
b. Removing from paragraphs (c)(3) and (d)(3) ``$7,032,000'' and
``$12,001,460'' and adding ``$6,708,000'' and ``$13,296,489'' in their
places, respectively.
PART 52--SOLICITATION PROVISIONS AND CONTRACT CLAUSES
0
8. Amend section 52.204-8 by--
0
a. Revising the date of the provision;
0
b. Removing from paragraph (c)(1)(xxi)(B) ``$92,319'' and adding
``$100,000'' in its place; and
0
c. Removing from paragraph (c)(1)(xxi)(C) ``$92,319'' and ``$100,000''
and adding ``$100,000'' and ``$102,280'' in their places, respectively.
The revision reads as follows:
52.204-8 Annual Representations and Certifications.
* * * * *
Annual Representations and Certifications (Feb 2024)
* * * * *
0
9. Amend section 52.212-3 by revising the date of the provision and
paragraph (g)(3) to read as follows:
52.212-3 Offeror Representations and Certifications--Commercial
Products and Commercial Services.
* * * * *
Offeror Representations and Certifications--Commercial Products and
Commercial Services (Feb 2024)
* * * * *
(g) * * *
(3) Buy American-Free Trade Agreements-Israeli Trade Act
Certificate, Alternate III. If Alternate III to the clause at
52.225-3 is included in this solicitation, substitute the following
paragraphs (g)(1)(i)(B) and (g)(1)(ii)
[[Page 13964]]
for paragraphs (g)(1)(i)(B) and (g)(1)(ii) of the basic provision:
(g)(1)(i)(B) The terms ``Korean end product'', ``commercially
available off-the-shelf (COTS) item,'' ``critical component,''
``domestic end product,'' ``end product,'' ``foreign end product,''
``Free Trade Agreement country,'' ``Free Trade Agreement country end
product,'' ``Israeli end product,'' and ``United States'' are
defined in the clause of this solicitation entitled ``Buy American--
Free Trade Agreements--Israeli Trade Act.''
(g)(1)(ii) The Offeror certifies that the following supplies are
Korean end products or Israeli end products as defined in the clause
of this solicitation entitled ``Buy American--Free Trade
Agreements--Israeli Trade Act'':
Korean End Products or Israeli End Products:
------------------------------------------------------------------------
Line Item No. Country of origin
------------------------------------------------------------------------
------------------------------------------------------------------------
------------------------------------------------------------------------
------------------------------------------------------------------------
[List as necessary]
* * * * *
0
10. Amend section 52.212-5 by--
0
a. Revising the date of the clause;
0
b. Removing from paragraph (b)(32) ``(NOV 2023)'' and adding ``(FEB
2024)'' in its place; and
0
c. Removing from paragraph (b)(53)(iv) ``(NOV 2023)'' and adding ``(FEB
2025)'' in its place.
The revision reads as follows:
52.212-5 Contract Terms and Conditions Required To Implement Statutes
or Executive Orders--Commercial Products and Commercial Services.
* * * * *
Contract Terms and Conditions Required To Implement Statutes or
Executive Orders--Commercial Products and Commercial Services (FEB
2024)
* * * * *
0
11. Amend section 52.213-4 by--
0
a. Revising the date of the clause; and
0
b. Removing from paragraph (b)(1)(iii) ``(NOV 2023)'' and adding ``(FEB
2024)'' in its place.
The revision reads as follows:
52.213-4 Terms and Conditions-Simplified Acquisitions (Other Than
Commercial Products and Commercial Services).
* * * * *
Terms and Conditions--Simplified Acquisitions (Other Than Commercial
Products and Commercial Services) (FEB 2024)
* * * * *
0
12. Amend section 52.222-19 by--
0
a. Revising the date of the clause; and
0
b. Removing from paragraph (a)(2) ``$92,319'' and adding ``$102,280''
in its place; and
c. Removing from paragraph (a)(3) ``$183,000'' and adding
``$174,000'' in its place.
The revision reads as follows:
52.222-19 Child Labor--Cooperation With Authorities and Remedies.
* * * * *
Child Labor--Cooperation With Authorities and Remedies (FEB 2024)
* * * * *
0
13. Amend section 52.225-3 by revising Alternate III to read as
follows:
52.225-3 Buy American--Free Trade Agreements--Israeli Trade Act.
* * * * *
Alternate III (FEB 2024). As prescribed in 25.1101(b)(1)(iii),
delete the definition of ``Bahraini, Moroccan, Omani, Panamanian, or
Peruvian end product'' and add in its place the following definition of
``Korean end product'' in paragraph (a) of the basic clause; and
substitute the following paragraph (c) for paragraph (c) of the basic
clause.
Korean end product means an article that--
(1) Is wholly the growth, product, or manufacture of Korea
(Republic of); or
(2) In the case of an article that consists in whole or in part of
materials from another country, has been substantially transformed in
Korea (Republic of) into a new and different article of commerce with a
name, character, or use distinct from that of the article or articles
from which it was transformed. The term refers to a product offered for
purchase under a supply contract, but for purposes of calculating the
value of the end product includes services (except transportation
services) incidental to the article, provided that the value of those
incidental services does not exceed that of the article itself.
(c) Delivery of end products. 41 U.S.C. chapter 83 provides a
preference for domestic end products for supplies acquired for use in
the United States. In accordance with 41 U.S.C. 1907, the domestic
content test of the Buy American statute is waived for an end product
that is a COTS item (see 12.505(a)(1)), except that for an end product
that consists wholly or predominantly of iron or steel or a combination
of both, the domestic content test is applied only to the iron and
steel content of the end product, excluding COTS fasteners. In
addition, the Contracting Officer has determined that the Korea
(Republic of) FTA and the Israeli Trade Act apply to this acquisition.
Unless otherwise specified, these trade agreements apply to all items
in the Schedule. The Contractor shall deliver under this contract only
domestic end products except to the extent that, in its offer, it
specified delivery of foreign end products in the provision entitled
``Buy American--Free Trade Agreements--Israeli Trade Act Certificate.''
If the Contractor specified in its offer that the Contractor would
supply a Korean end product or an Israeli end product, then the
Contractor shall supply a Korean end product, an Israeli end product,
or at the Contractor's option, a domestic end product.
* * * * *
0
14. Amend section 52.225-4 by revising Alternate III to read as
follows:
52.225-4 Buy American--Free Trade Agreements--Israeli Trade Act
Certificate.
* * * * *
Alternate III (FEB 2024). As prescribed in 25.1101(b)(2)(iii),
substitute the following paragraph (b) for paragraph (b) of the basic
provision:
(b) The Offeror certifies that the following supplies are Korean
end products or Israeli end products as defined in the clause of this
solicitation entitled ``Buy American--Free Trade Agreements--Israeli
Trade Act'':
Korean End Products or Israeli End Products:
------------------------------------------------------------------------
Line Item No. Country of origin
------------------------------------------------------------------------
------------------------------------------------------------------------
------------------------------------------------------------------------
------------------------------------------------------------------------
[List as necessary]
[FR Doc. 2024-02798 Filed 2-22-24; 8:45 am]
BILLING CODE 6820-EP-P
</pre><script data-cfasync="false" src="/cdn-cgi/scripts/5c5dd728/cloudflare-static/email-decode.min.js"></script></body>
</html>Indexed from Federal Register on February 23, 2024.
This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.