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Interim DFARS Rule Addresses Acquisitions of Photovoltaic Devices

A final rule issued by the Department of Defense amends the Defense Federal Acquisition Regulation Supplement to implement Section 846 of the National Defense Authorization Act for Fiscal Year 2011 (PL 111-383), which requires the use of photovoltaic devices in performance of any covered contract to comply with the Buy American statute, with exceptions. Photovoltaic devices produce direct current electricity from sunlight, which can be used to provide power to things such as DoD-owned facilities or private housing. The rule adds new DFARS 225.7017, Utilization of domestic photovoltaic devices, as well as an associated clause ( DFARS 252.225-7017) and solicitation provision ( DFARS 252.225-7018). Under the new prescription provision ( DFARS 225.7017-4), the clause must be used in solicitations for a contract that is expected to exceed the simplified acquisition threshold and may be a covered contract.

Buy American Requirement

New DFARS 225.7017-1 defines "covered contract" as an energy savings performance contract, a utility service contract, or a private housing contract, if the contract will result in DoD ownership of photovoltaic devices, by means other than DoD purchase as end products. DoD is deemed to own a photovoltaic device if the device is installed on DoD property or in a facility owned by DoD, and reserved for the exclusive use of DoD for the full economic life of the device. Under new DFARS 225.7017-2, Restriction, photovoltaic devices provided under any covered contract must comply with the Buy American statute, subject to the exceptions provided in the Trade Agreements Act of 1979 (19 USC 2501, et seq.), or otherwise provided by law. New DFARS 225.7017-3 makes exceptions for qualifying country photovoltaic devices, Free Trade Agreement or designated country photovoltaic devices, and other foreign photovoltaic devices, if covered by the Buy American statute and the cost of a domestic photovoltaic device would be 50 percent more than the cost of the foreign photovoltaic device. The rule also makes a conforming change to DFARS 252.212-7001. The interim rule went into effect on December 20, 2011. Comments referencing DFARS Case 2011-D04 are due February 21, 2012. For the text of the rule, see 70,016.691.




(The news featured above is a selection from the news covered in the Government Contracts Report Letter, which is published weekly and distributed to subscribers of the Government Contracts Reporter. )


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