As of Tuesday, December 20, 2011, pursuant to an interim rule, the Department of Defense ("DOD") now requires that certain photovoltaic devices be American-made and comply with the provisions of the Buy American Act. Contracts subject to this restriction include energy savings performance contracts, utility service contracts, and private housing contracts that will result in the photovoltaic devices ultimately being owned by the DOD or being installed on a DOD property/facility and reserved for the exclusive use of the DOD for the full economic life of the device. The interim rule provides exceptions for: (1) devices made in qualifying countries or countries covered under free trade agreements; (2) devices valued at less than $203,000, as long as the cost of the domestic device exceeds the cost of the foreign device by 50 percent; and (3) devices provided under contracts below the simplified acquisition threshold (subject to further evaluation by the DOD). There is no exception for commercial items contracts.
This rule affects contractors and subcontractors that provide photovoltaic devices and could especially affect small business. Comments on the DOD's interim rule may be submitted through February 21, 2012, at which point the DOD will begin finalizing the rule.
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