The Court also found that the FAR did not block Acretis entecavir tablets. Under the FAR TAA clause 52.225-5, a contractor must supply „only finished domestically manufactured or designated products in the United States.“ And the „final product of the United States“ is defined as „an item that is extracted, produced or produced in the United States, or that is deeply processed in the United States.“ The Court stated that the origin of the components was not relevant to determining where a product is manufactured. Because Acretis manufactured the tablets in New Jersey, the product was a TAA-compliant „American final product.“ According to the Court, „it is not necessary for a product in the United States to be manufactured or substantially redeveloped to be a finished product manufactured in the United States.“ Instead, „such products can be . . . made in the United States from components made from abroad. The Buy American Act is the basic source for the purchase of foreign-made products by the federal government. Implemented by a presidential decree and regulation, the law imposes a „tariff preference“ for the purchase of products originating in the United States, which can range from 6% (for defenceless markets) to 50% (for purchases of defence-related products). The application of the Buy American Act will be amended if an international agreement – either the World Trade Organization`s (WTO) Government Procurement Agreement (AMP) or a free trade agreement such as NAFTA – requires the United States to treat the products of certain foreign countries indiscriminately. In such cases, where the purchase is made by a covered agency and the value of the supply exceeds the applicable threshold, no tariff preference is applied and the foreign product is valued in the same way as U.S. products. These changes are being implemented as part of the TAA, which implements U.S. trade agreement commitments.
As prescribed in 25.1101 (c) (1), insert the following clause: If a contract exceeds the value threshold applicable to the GPA WTO and therefore the TAA governs, the United States has introduced a flat-rate ban on the purchase of goods from „non-eligible“ countries in the event of an offer of U.S. products or products from an eligible country. The aim of this restriction is to encourage other countries to make international trade commitments on public procurement. In most cases, this restriction prohibits the U.S. government from purchasing products from countries such as China and India that are not members of the GPA. b) supply of finished products. The contract agent found that the WTO ACCORD and free trade AGREEMENTs apply to this acquisition. Unless otherwise stated, these trade agreements apply to all items in the calendar. Under this contract, the supplier only supplies finished products manufactured or designated in the United States, unless its offer indicates the delivery of other finished products in the „commercial contract certificate“ provision. But not all countries have a free trade agreement with the United States, including, most importantly, countries like China and India. Therefore, if a business supplier offers the U.S.
government a commodity manufactured in India, for example, that property would not be in compliance with the TAA and the contractor would not be able to supply it to public procurement. The list below was extracted from the Federal Acquisition Regulation (FAR) and was last updated in November 2016 with the inclusion of Moldova and Ukraine and is up to date from June 2020.