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DoD is issuing a proposed rule to amend the Defense Federal Acquisition Regulation Supplement (DFARS) to implement section 813(b) of the National Defense Authorization Act (NDAA) for Fiscal Year (FY) 2018.  Section 813(b) repeals section 858 of the NDAA for FY 2015, but does not repeal section 846 of the NDAA for FY 2011. By reverting to section 846 of the NDAA for FY 2011, the restriction on acquisition of photovoltaic devices by contractors is now applicable only if the photovoltaic 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, whereas under section 858 of the NDAA for FY 2015, the restriction was applicable if either condition applied.

Section 846 requires compliance with the Buy American Act; whereas section 858 imposed a requirement for manufacture in the U.S. separate from the Buy American Act, and was therefore no longer covered by the existing exceptions to and waivers of the Buy American Act (such as a waiver on the basis of "unreasonable cost" or "inconsistent with the public interest" (for acquiring photovoltaic devices from qualifying countries or U.S.-made photovoltaic devices when the WTO GPA applies). With the repeal of section 858, it will no longer be necessary to do individual case-by-case waivers for waivers based on unreasonable cost or inconsistent with the public interest. Also with the repeal of section 858, the waiver of the component test for photovoltaic devices is reinstated, since they are commercially available off-the-shelf items, for which the component test is waived under the Buy American Act.