§ 2534. Miscellaneous limitations on the procurement of goods other than United States goods

• (a) The Secretary of Defense may procure any of the following items only if the manufacturer of the item satisfies the requirements of subsection (b):
  • (1) Multipassenger motor vehicles (buses).
  • (2) Chemical weapons antidote contained in automatic injectors (and components for such injectors).
  • (3)
    • (A) The following components:
      • (i) Air circuit breakers.
      • (ii) Welded shipboard anchor and mooring chain with a diameter of four inches or less.
      • (iii) Vessel propellers with a diameter of six feet or more.
    • (B) The following components of vessels, to the extent they are unique to marine applications: gyrocompasses, electronic navigation chart systems, steering controls, pumps, propulsion and machinery control systems, and totally enclosed lifeboats.
  • (4) Items in the following categories:
    • (A) Powered and non-powered valves in Federal Supply Classes 4810 and 4820 used in piping for naval surface ships and submarines.
    • (B) Machine tools in the Federal Supply Classes for metal-working machinery numbered 3405, 3408, 3410 through 3419, 3426, 3433, 3438, 3441 through 3443, 3445, 3446, 3448, 3449, 3460, and 3461.
  • (5) Ball bearings and roller bearings, in accordance with subpart 225.71 of part 225 of the Defense Federal Acquisition Regulation Supplement, as in effect on October 23, 1992 , except ball bearings and roller bearings being procured for use in an end product manufactured by a manufacturer that does not satisfy the requirements of subsection (b) or in a component part manufactured by such a manufacturer.
  • (6) Subject to subsection (k), 1 1 So in original. Probably means the subsec. (k) enacted by Pub. L. 116–92 , related to implementation of auxiliary ship component limitation. See 2019 Amendment note below. large medium-speed diesel engines.
• (b)
  • (1) A manufacturer meets the requirements of this subsection if the manufacturer is part of the national technology and industrial base.
  • (2) In the case of a procurement of chemical weapons antidote referred to in subsection (a)(2), a manufacturer meets the requirements of this subsection only if the manufacturer—
    • (A) meets the requirement set forth in paragraph (1);
    • (B) is an existing producer under the industrial preparedness program at the time the contract is awarded;
    • (C) has received all required regulatory approvals; and
    • (D) when the contract for the procurement is awarded, has in existence in the national technology and industrial base the plant, equipment, and personnel necessary to perform the contract.
  • (3) In the case of a procurement of vessel propellers referred to in subsection (a)(3)(A)(iii), the manufacturer of the propellers meets the requirements of this subsection only if—
    • (A) the manufacturer meets the requirements set forth in paragraph (1); and
    • (B) all castings incorporated into such propellers are poured and finished in the United States.
• (c)
  • (1) Subsection (a) does not apply to a procurement of spare or repair parts needed to support components for naval vessels produced or manufactured outside the United States.
  • (2)
    • (A) Contracts to which subsection (a) applies include the following contracts for the procurement of items described in paragraph (4) of such subsection:
      • (i) A contract for procurement of such an item for use in property under the control of the Department of Defense, including any Government-owned, contractor-operated facility.
      • (ii) A contract that is entered into by a contractor on behalf of the Department of Defense for the purpose of providing such an item to another contractor as Government-furnished equipment.
    • (B) In any case in which a contract for items described in subsection (a)(4) includes the procurement of more than one Federal Supply Class of machine tools or machine tools and accessories, each supply class shall be evaluated separately for purposes of determining whether the limitation in subsection (a) applies.
    • (C) Subsection (a)(4) and this paragraph shall cease to be effective on October 1, 1996 .
  • (3) Subsection (a)(5) and this paragraph shall cease to be effective on October 1, 2005 .
  • (4) Subsection (a)(3)(A)(iii) and this paragraph shall cease to be effective on February 10, 1998 .
  • (5) Subsections (a)(2) and (b)(2) shall cease to be effective on October 1, 2018 .
• (d) The Secretary of Defense may waive the limitation in subsection (a) with respect to the procurement of an item listed in that subsection if the Secretary determines that any of the following apply:
  • (1) Application of the limitation would cause unreasonable costs or delays to be incurred.
  • (2) United States producers of the item would not be jeopardized by competition from a foreign country, and that country does not discriminate against defense items produced in the United States to a greater degree than the United States discriminates against defense items produced in that country.
  • (3) Application of the limitation would impede cooperative programs entered into between the Department of Defense and a foreign country, or would impede the reciprocal procurement of defense items under a memorandum of understanding providing for reciprocal procurement of defense items that is entered into under section 2531 of this title , and that country does not discriminate against defense items produced in the United States to a greater degree than the United States discriminates against defense items produced in that country.
  • (4) Satisfactory quality items manufactured by an entity that is part of the national technology and industrial base (as defined in section 2500(1) of this title ) are not available.
  • (5) Application of the limitation would result in the existence of only one source for the item that is an entity that is part of the national technology and industrial base (as defined in section 2500(1) of this title ).
  • (6) The procurement is for an amount less than the simplified acquisition threshold and simplified purchase procedures are being used.
  • (7) Application of the limitation is not in the national security interests of the United States.
  • (8) Application of the limitation would adversely affect a United States company.
• (e)
  • (1) The Secretary of Defense may not procure a sonobuoy manufactured in a foreign country if United States firms that manufacture sonobuoys are not permitted to compete on an equal basis with foreign manufacturing firms for the sale of sonobuoys in that foreign country.
  • (2) The Secretary may waive the limitation in paragraph (1) with respect to a particular procurement of sonobuoys if the Secretary determines that such procurement is in the national security interests of the United States.
  • (3) In this subsection, the term “United States firm” has the meaning given such term in section 2532(d)(1) of this title .
• (f) A provision of law may not be construed as modifying or superseding the provisions of this section, or as requiring funds to be limited, or made available, by the Secretary of Defense to a particular domestic source by contract, unless that provision of law—
  • (1) specifically refers to this section;
  • (2) specifically states that such provision of law modifies or supersedes the provisions of this section; and
  • (3) specifically identifies the particular domestic source involved and states that the contract to be awarded pursuant to such provision of law is being awarded in contravention of this section.
• (g)
  • (1) This section does not apply to a contract or subcontract for an amount that does not exceed the simplified acquisition threshold.
  • (2) Paragraph (1) does not apply to contracts for items described in subsection (a)(5) (relating to ball bearings and roller bearings), notwithstanding section 1905 of title 41 .
• (h) In implementing subsection (a)(3)(B), the Secretary of Defense—
  • (1) may not use contract clauses or certifications; and
  • (2) shall use management and oversight techniques that achieve the objective of the subsection without imposing a significant management burden on the Government or the contractor involved.
• (i)
  • (1) The Secretary of Defense may exercise the waiver authority described in paragraph (2) only if the waiver is made for a particular item listed in subsection (a) and for a particular foreign country.
  • (2) This subsection applies to the waiver authority provided by subsection (d) on the basis of the applicability of paragraph (2) or (3) of that subsection.
  • (3) The waiver authority described in paragraph (2) may not be delegated below the Under Secretary of Defense for Acquisition, Technology, and Logistics.
  • (4) At least 15 days before the effective date of any waiver made under the waiver authority described in paragraph (2), the Secretary shall publish in the Federal Register and submit to the congressional defense committees a notice of the determination to exercise the waiver authority.
  • (5) Any waiver made by the Secretary under the waiver authority described in paragraph (2) shall be in effect for a period not greater than one year, as determined by the Secretary.
• (j)
  • (1) This section does not apply with respect to a contract or subcontract to purchase items described in subsection (a)(5) (relating to ball bearings and roller bearings) for which—
    • (A) the amount of the purchase does not exceed $2,500;
    • (B) the precision level of the ball or roller bearings to be procured under the contract or subcontract is rated lower than the rating known as Annual Bearing Engineering Committee (ABEC) 5 or Roller Bearing Engineering Committee (RBEC) 5, or an equivalent of such rating;
    • (C) at least two manufacturers in the national technology and industrial base that are capable of producing the ball or roller bearings have not responded to a request for quotation issued by the contracting activity for that contract or subcontract; and
    • (D) no bearing to be procured under the contract or subcontract has a basic outside diameter (exclusive of flange diameters) in excess of 30 millimeters.
  • (2) Paragraph (1) does not apply to a purchase if such purchase would result in the total amount of purchases of ball bearings and roller bearings to satisfy requirements under Department of Defense contracts, using the authority provided in such paragraph, to exceed $200,000 during the fiscal year of such purchase.
• (k)
  • (1) The Secretary of Defense shall administer a process to analyze and assess potential items for consideration to be required to be procured from a manufacturer that is part of the national technology and industrial base.
  • (2) The application process required under paragraph (1) shall include the following elements:
    • (A) The Secretary shall designate an official within the Office of the Secretary of Defense responsible for administration of the limitation on certain procurements application process and associated policy.
    • (B) A person or organization that meets the definition of national technology and industrial base under section 2500(1) of this title shall have the opportunity to apply for status as an item required to be procured from a manufacturer that is part of the national technology and industrial base. The application shall include, at a minimum, the following information:
      • (i) Information demonstrating the applicant meets the criteria of a manufacturer in the national technology and industrial base under section 2500(1) of this title .
      • (ii) For each item the applicant seeks to be required to be procured from a manufacturer that is part of the national technology and industrial base, the applicant shall include the following information:
        • (I) The extent to which such item has commercial applications.
        • (II) The number of such items to be procured by current programs of record.
        • (III) The criticality of such item to a military unit’s mission accomplishment.
        • (IV) The estimated cost and other considerations of reconstituting the manufacturing capability of such item, if not maintained in the national technology and industrial base.
        • (V) National security regulations or restrictions imposed on such item that may not be imposed on a non-national technology and industrial base competitor.
        • (VI) Non-national security-related Federal, State, and local government regulations imposed on such item that may not be imposed on a non-national technology and industrial base competitor.
        • (VII) The extent to which such item is fielded in current programs of record.
        • (VIII) The extent to which cost and pricing data for such item has been deemed fair and reasonable.
  • (3)
    • (A) The official designated pursuant to paragraph (2)(A) shall be responsible for providing complete applications submitted pursuant to this subsection to the appropriate component acquisition executive for consideration not later than 15 days after receipt of such application.
    • (B) Not later than 120 days after receiving a complete application, the component acquisition executive shall review such application, make a determination, and return the application to the official designated pursuant to paragraph (2)(A).
    • (C) The determination required under subparagraph (B) shall, for each item proposed pursuant to paragraph (2)(B)(ii)—
      • (i) recommend inclusion under this section;
      • (ii) recommend inclusion under this section with further modifications; or
      • (iii) not recommend inclusion under this section.
    • (D) The determination required under subparagraph (B) shall also include the rationale and justification for the determination.
  • (4) For applications recommended under subsection (3), the official designated pursuant to paragraph (2)(A) shall be responsible for preparing a legislative proposal for consideration by the Secretary.
• (k) Subsection (a)(6) applies only with respect to contracts awarded by the Secretary of a military department for new construction of an auxiliary ship after the date of the enactment of the National Defense Authorization Act for Fiscal Year 2020 using funds available for National Defense Sealift Fund programs or Shipbuilding and Conversion, Navy. For purposes of this subsection, the term ‘auxiliary ship’ does not include an icebreaker or a special mission ship.