DFARS 252.225-7009 Restriction on Acquisition of Certain Articles Containing Specialty Metals. Basic (Jan 2023) (Current)

As prescribed in 225.7003-5(a)(2), use the clause at 252.225-7009, Restriction on Acquisition of Certain Articles Containing Specialty Metals, in solicitations and contracts, including solicitations and contracts using FAR part 12 procedures for the acquisition of commercial products and commercial services, that—

                    (i)  Exceed the simplified acquisition threshold; and

                    (ii)  Require delivery of any of the following items, or components of the following items, if such items or components contain specialty metal:

                            (A)  Aircraft.

                            (B)  Missile or space systems.

                            (C)  Ships.

                            (D)  Tank or automotive items.

                            (E)  Weapon systems.

                            (F)  Ammunition.
 

RESTRICTION ON ACQUISITION OF CERTAIN ARTICLES CONTAINING SPECIALTY METALS (JAN 2023)

      (a)  Definitions.  As used in this clause—

              “Alloy” means a metal consisting of a mixture of a basic metallic element and one or more metallic, or non-metallic, alloying elements.

                    (i)  For alloys named by a single metallic element (e.g., titanium alloy), it means that the alloy contains 50 percent or more of the named metal (by mass).

                    (ii)  If two metals are specified in the name (e.g, nickel-iron alloy), those metals are the two predominant elements in the alloy, and together they constitute 50 percent or more of the alloy (by mass).        

              “Assembly” means an item forming a portion of a system or subsystem that—

                    (i)  Can be provisioned and replaced as an entity; and

                    (ii)  Incorporates multiple, replaceable parts.

              “Commercial derivative military article” means an item acquired by the Department of Defense that is or will be produced using the same production facilities, a common supply chain, and the same or similar production processes that are used for the production of articles predominantly used by the general public or by nongovernmental entities for purposes other than governmental purposes.

              “Commercially available off-the-shelf item”—

                    (i)  Means any item of supply that is—

                            (A)  A commercial product (as defined in paragraph (1) of the definition of “commercial product” in section 2.101 of the Federal Acquisition Regulation);

                            (B)  Sold in substantial quantities in the commercial marketplace; and

                            (C)  Offered to the Government, under this contract or a subcontract at any tier, without modification, in the same form in which it is sold in the commercial marketplace; and

                    (ii)  Does not include bulk cargo, as defined in 46 U.S.C. 40102(4), such as agricultural products and petroleum products.

              “Component” means any item supplied to the Government as part of an end item or of another component.

              “Electronic component” means an item that operates by controlling the flow of electrons or other electrically charged particles in circuits, using interconnections of electrical devices such as resistors, inductors, capacitors, diodes, switches, transistors, or integrated circuits.  The term does not include structural or mechanical parts of an assembly containing an electronic component, and does not include any high performance magnets that may be used in the electronic component.

              “End item” means the final production product when assembled or completed and ready for delivery under a line item of this contract.

              “High performance magnet” means a permanent magnet that obtains a majority of its magnetic properties from rare earth metals (such as samarium).

              “Produce” means—

                    (i)  Atomization;

                    (ii)  Sputtering; or

                    (iii)  Final consolidation of non-melt derived metal powders.

              “Qualifying country” means any country listed in the definition of “Qualifying country” at 225.003of the Defense Federal Acquisition Regulation Supplement (DFARS).

              “Specialty metal” means—

                    (i)  Steel—

                            (A)  With a maximum alloy content exceeding one or more of the following limits:  manganese, 1.65 percent; silicon, 0.60 percent; or copper, 0.60 percent; or

                            (B)  Containing more than 0.25 percent of any of the following elements:  aluminum, chromium, cobalt, molybdenum, nickel, niobium (columbium), titanium, tungsten, or vanadium;

                    (ii)  Metal alloys consisting of—

                            (A)  Nickel or iron-nickel alloys that contain a total of alloying metals other than nickel and iron in excess of 10 percent; or

                            (B)  Cobalt alloys that contain a total of alloying metals other than cobalt and iron in excess of 10 percent;

                    (iii)  Titanium and titanium alloys; or

                    (iv)  Zirconium and zirconium alloys.

              “Steel” means an iron alloy that includes between .02 and 2 percent carbon and may include other elements.

              “Subsystem” means a functional grouping of items that combine to perform a major function within an end item, such as electrical power, attitude control, and propulsion.

      (b)  Restriction.  Except as provided in paragraph (c) of this clause, any specialty metals incorporated in items delivered under this contract shall be melted or produced in the United States, its outlying areas, or a qualifying country.

      (c)  Exceptions.  The restriction in paragraph (b) of this clause does not apply to—

              (1)  Electronic components.

              (2)(i)  Commercially available off-the-shelf (COTS) items, other than—

                            (A)  Specialty metal mill products, such as bar, billet, slab, wire, plate, or sheet, that have not been  incorporated into COTS end items, subsystems, assemblies, or components; 

                            (B)  Forgings or castings of specialty metals, unless the forgings or castings are incorporated into COTS end items, subsystems, or assemblies;

                            (C)  Commercially available high performance magnets that contain specialty metal, unless such high performance magnets are incorporated into COTS end items or subsystems; and

                            (D)  COTS fasteners, unless—

 

                                    (1)  The fasteners are incorporated into COTS end items, subsystems, assemblies, or components; or

                                    (2)  The fasteners qualify for the commercial product exception in paragraph (c)(3) of this clause.

     

                    (ii)  A COTS item is considered to be “without modification” if it is not modified prior to contractual acceptance by the next higher tier in the supply chain. 

                            (A)  Specialty metals in a COTS item that was accepted without modification by the next higher tier are excepted from the restriction in paragraph (b) of this clause, and remain excepted, even if a piece of the COTS item subsequently is removed (e.g., the end is removed from a COTS screw or an extra hole is drilled in a COTS bracket).

                            (B)  Specialty metals that were not contained in a COTS item upon acceptance, but are added to the COTS item after acceptance, are subject to the restriction in paragraph (b) of this clause (e.g., a special reinforced handle made of specialty metal is added to a COTS item).

                            (C)  If two or more COTS items are combined in such a way that the resultant item is not a COTS item, only the specialty metals involved in joining the COTS items together are subject to the restriction in paragraph (b) of this clause (e.g., a COTS aircraft is outfitted with a COTS engine that is not the COTS engine normally provided with the aircraft).

                            (D)  For COTS items that are normally sold in the commercial marketplace with various options, items that include such options are also COTS items.  However, if a COTS item is offered to the Government with an option that is not normally offered in the commercial marketplace, that option is subject to the restriction in paragraph (b) of this clause (e.g. - An aircraft is normally sold to the public with an option for installation kits.  The Department of Defense requests a military-unique kit.  The aircraft is still a COTS item, but the military-unique kit is not a COTS item and must comply with the restriction in paragraph (b) of this clause unless another exception applies).

              (3)  Fasteners that are commercial products, if the manufacturer of the fasteners certifies it will purchase, during the relevant calendar year, an amount of domestically melted or produced specialty metal, in the required form, for use in the production of fasteners for sale to the Department of Defense and other customers, that is not less than 50 percent of the total amount of the specialty metal that it will purchase to carry out the production of such fasteners for all customers.

              (4)  Items manufactured in a qualifying country. 

              (5)  Specialty metals for which the Government has determined in accordance with DFARS 225.7003-3 that specialty metal melted or produced in the United States, its outlying areas, or a qualifying country cannot be acquired as and when needed in—

                    (i)  A satisfactory quality;

                    (ii)  A sufficient quantity; and

                    (iii)  The required form. In accordance with 10 U.S.C. 4863(m)(4), the term “required form” in this clause refers to the form of the mill product, such as bar, billet, wire, slab, plate, or sheet, in the grade appropriate for the production of a finished end item to be delivered to the Government under this contract; or a finished component assembled into an end item to be delivered to the Government under this contract.

              (6)  End items containing a minimal amount of otherwise noncompliant specialty metals (i.e., specialty metals not melted or produced in the United States, an outlying area, or a qualifying country, that are not covered by one of the other exceptions in this paragraph (c)), if the total weight of such noncompliant metals does not exceed 2 percent of the total weight of all specialty metals in the end item, as estimated in good faith by the Contractor.  This exception does not apply to high performance magnets containing specialty metals.

   (d)  Compliance for commercial derivative military articles.

              (1)  As an alternative to the compliance required in paragraph (b) of this clause, the Contractor may purchase an amount of domestically melted or produced specialty metals in the required form, for use during the period of contract performance in the production of the commercial derivative military article and the related commercial article, if—

                    (i)  The Contracting Officer has notified the Contractor of the items to be delivered under this contract that have been determined by the Government to meet the definition of “commercial derivative military article”; and

                    (ii)  For each item that has been determined by the Government to meet the definition of “commercial derivative military article,” the Contractor has certified, as specified in the provision of the solicitation entitled “Commercial Derivative Military Article—Specialty Metals Compliance Certificate” (DFARS 252.225-7010), that the Contractor and its subcontractor(s) will enter into a contractual agreement or agreements to purchase an amount of domestically melted or produced specialty metal in the required form, for use during the period of contract performance in the production of each commercial derivative military article and the related commercial article, that is not less than the Contractor’s good faith estimate of the greater of—

                            (A)  An amount equivalent to 120 percent of the amount of specialty metal that is required to carry out the production of the commercial derivative military article (including the work performed under each subcontract); or

                            (B)  An amount equivalent to 50 percent of the amount of specialty metal that will be purchased by the Contractor and its subcontractors for use during such period in the production of the commercial derivative military article and the related commercial article.

              (2)  For the purposes of this alternative, the amount of specialty metal that is required to carry out production of the commercial derivative military article includes specialty metal contained in any item, including COTS items. 

      (e)  Subcontracts.

              (1)  The Contractor shall exclude and reserve paragraph (d) and this paragraph (e)(1) when flowing down this clause to subcontracts.

              (2)  The Contractor shall insert paragraphs (a) through (c) and this paragraph (e)(2) of this clause in subcontracts, including subcontracts for commercial products, that are for items containing specialty metals to ensure compliance of the end products that the Contractor will deliver to the Government. When inserting this clause in subcontracts, the Contractor shall—

              (i)  Modify paragraph (c)(6) of this clause only as necessary to facilitate management of the minimal content exception at the prime contract level. The minimal content exception does not apply to specialty metals contained in high-performance magnets; and

              (ii)  Not further alter the clause other than to identify the appropriate parties.

(End of clause)
 

 (e)  Subcontracts.

              (1)  The Contractor shall exclude and reserve paragraph (d) and this paragraph (e)(1) when flowing down this clause to subcontracts.

              (2)  The Contractor shall insert paragraphs (a) through (c) and this paragraph (e)(2) of this clause in subcontracts, including subcontracts for commercial products, that are for items containing specialty metals to ensure compliance of the end products that the Contractor will deliver to the Government. When inserting this clause in subcontracts, the Contractor shall—

              (i)  Modify paragraph (c)(6) of this clause only as necessary to facilitate management of the minimal content exception at the prime contract level. The minimal content exception does not apply to specialty metals contained in high-performance magnets; and

              (ii)  Not further alter the clause other than to identify the appropriate parties.
 

Mandatory (Exception);
Services ✖   DFARS 212.301 (Applies when items or components that contain specialty metal are required.);

52.223-3 Hazardous Material Identification and Material Safety Data.

52.223-7 Notice of Radioactive Materials.

52.223-11 Ozone-Depleting Substances and High Global Warming Potential Hydrofluorocarbons.

52.223-17 Affirmative Procurement of EPA-designated Items in Service and Construction Contracts.

52.223-22 Public Disclosure of Greenhouse Gas Emissions and Reduction Goals-Representation.

52.223-3 Hazardous Material Identification and Material Safety Data.

52.208-8 Required Sources for Helium and Helium Usage Data.

52.223-11 Ozone-Depleting Substances.

52.223-17 Affirmative Procurement of EPA-designated Items in Service and Construction Contracts.

52.208-8 Required Sources for Helium and Helium Usage Data.

252.223-7002 Safety Precautions for Ammunition and Explosives.

252.223-7007 Safeguarding Sensitive Conventional Arms, Ammunition, and Explosives.

252.225-7052 Restriction on the Acquisition of Certain Magnets and Tungsten.

252.225-7052 Restriction on the Acquisition of Certain Magnets, Tantalum, and Tungsten.

252.223-7008 Prohibition of Hexavalent Chromium.

252.225-7052 Restriction on the Acquisition of Certain Magnets, Tantalum, and Tungsten.

252.225-7052 Restriction on the Acquisition of Certain Magnets, Tantalum, and Tungsten.

252.223-7001 Hazard Warning Labels.

952.204-73 Facility clearance.

952.223-71 Integration of environment, safety, and health into work planning and execution.

952.223-75 Preservation of individual occupational radiation exposure records.

952.223-78 Sustainable acquisition program.

970.5223-7 Sustainable acquisition program.

52.223-11 Ozone-Depleting Substances and High Global Warming Potential Hydrofluorocarbons.

52.223-3 Hazardous Material Identification and Material Safety Data.

52.223-7 Notice of Radioactive Materials.

52.250-1 Indemnification Under Public Law 85-804.

52.250-3 SAFETY Act Block Designation/Certification.

52.250-4 SAFETY Act Pre-qualification Designation Notice.

52.250-5 SAFETY Act-Equitable Adjustment.

52.223-22 Public Disclosure of Greenhouse Gas Emissions and Reduction Goals-Representation.

252.223-7001 Hazard Warning Labels.

252.223-7002 Safety Precautions for Ammunition and Explosives.

252.223-7003 Change in Place of Performance--Ammunition and Explosives.

252.223-7006 Prohibition on Storage, Treatment, and Disposal of Toxic or Hazardous Materials.

252.223-7007 Safeguarding Sensitive Conventional Arms, Ammunition, and Explosives.

252.223-7008 Prohibition of Hexavalent Chromium.

252.225-7052 Restriction on the Acquisition of Certain Magnets, Tantalum, and Tungsten.

252.223-7009 Prohibition of Procurement of Fluorinated Aqueous Film-Forming Foam Fire-Fighting Agent for Use on Military Installations

5252.223-9501 MATERIAL SAFETY DATA SHEET (MSDS)(NAVAIR)

5252.223-9000 DON ADDITIONAL SAFETY REQUIREMENTS APPLICABLE TO SPECIFIED GOVERNMENT FURNISHED AMMUNITION AND EXPLOSIVES

3052.223-70 Removal or disposal of hazardous substances – applicable licenses and permits

3052.223-90 Accident and fire reporting (USCG).

5352.223-9000 Elimination of Use of Class I Ozone Depleting Substances (ODS)

5352.223-9001 Health and Safety on Government Installations

552.223-70 Hazardous Substances.

552.223-71 Nonconforming Hazardous Materials.

552.223-72 Hazardous Material Information.

552.223-73 Preservation, Packaging, Packing, Marking, and Labeling of Hazardous Materials (HAZMAT) For Shipments.

652.236-70 Accident Prevention.

1452.236-70 Prohibition Against Use of Lead-based Paint.

952.223-78 Sustainable acquisition program.

952.225-70 Subcontracting for nuclear hot cell services.

970.5223-1 Integration of environment, safety, and health into work planning and execution.

952.204-73 Facility clearance.

952.223-71 Integration of environment, safety, and health into work planning and execution.

952.223-72 Radiation protection and nuclear criticality.

952.223-75 Preservation of individual occupational radiation exposure records.

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