B.  Foreign Participation in Acquisitions in Support of Operations in Afghanistan

DoD published a proposed rule, "Foreign Participation in Acquisitions in Support of Operations in Afghanistan" on January 6, 2010 (DFARS Case 2009-D012)(75 FR 832), with request for public comments. DoD did not receive any public comments on the proposed rule. DoD published the final rule in the Federal Register (75 FR 81915) on December 29, 2010.

Although no public comments were received, DoD realized that the requirement for a contractor to inform its government of its participation in the acquisition should only apply if the contractor is from a South Caucasus/Central and South Asian (SC/CASA) state. The United States Trade Representative, when providing authority to the Secretary of Defense to waive the procurement prohibition in section 302(a) of the Trade Agreements Act of 1979 (USTR letter of June 2, 2009), included the provision that contractors from the SC/CASA states, which would not have been eligible to participate in the acquisition absent the waiver, advise their governments that they will generally not have such opportunities in the future unless their governments provide reciprocal procurement opportunities to U.S. products and services.

This requirement has meaning only when applied to a contractor from an SC/CASA state, to which the waiver applies. The required statement that the contractor would not have been eligible to participate in the acquisition absent the waiver would not be true for a contractor from other than an SC/CASA state. It would also be meaningless to ask a U.S. contractor to notify its government (the U.S. Government) that it should provide reciprocal procurement opportunities to U.S. products and services. However, the proposed rule did not explicitly limit the application of this requirement to contractors from an SC/CASA state.

The final rule under DFARS Case 2009-D012 revised paragraph (d) of Alternate II of DFARS clause 252.225-7021, Trade Agreements, to limit applicability to contractors from an SC/CASA state. The final rule inadvertently omitted similar amendment of the same requirement in paragraphs (d) of Alternates II and III of DFARS clause 252.225-7045, Balance of Payments Program--Construction Material Under Trade Agreements.

This final rule under DFARS Case 2011-D017 remedies that oversight, adding "If the Contractor is from an SC/CASA state" to paragraph (d) in Alternates II and III of DFARS clause 252.225-7045, Buy American Act--Free Trade Agreements--Balance of Payments Program Certificate, to conform to the same revision made under DFARS Case 2009-D012 to paragraph (d) of Alternate I of DFARS clause 252.225-7021.