3.  Waivers

Comment: One respondent stated that waivers go too far. If there is no domestic bearing to meet the requirement, then the restriction should only be waived to allow purchase of bearings from designated countries. The respondent was concerned that the proposal may ease the restrictions beyond those found in the Buy American Act, thus opening the possibility of allowing bearings for defense purposes to include components manufactured by unreliable sources. The respondent noted that there are 2,059 FSC ball and roller bearings on the DLA FY 2010 waiver list. According to the respondent, sourcing is open to any country of origin, with price being the sole determining factor for award.

Response: This rule implements section 8065 of the DoD Appropriations Act for Fiscal Year 2002 (Pub. L. 107-117) and the same restriction in subsequent DoD appropriations acts. While DoD interprets the phrase "produced by a domestic source and of domestic origin" in a way that is comparable to the Buy American Act definition of "domestic end product", this does not imply that DoD is empowered to determine exceptions and waiver authority under this statute on any basis other than the specific provisions of the appropriations act.

There is no basis provided in the appropriations act for restricting acquisitions of domestically nonavailable items to the products of designated countries. Price is the sole determining factor for award after determination that the offered products meet the criteria of the solicitation. Nor does the respondent provide any evidence that the products of nondesignated countries are necessarily unreliable. Requiring a reliable product would be a more direct way to achieve the objective than prohibiting acquisition from nondesignated countries.