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                            Subpart 25.2 - Buy American-Construction Materials
        
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FAC Number: 2024-03 Effective Date: 02/23/2024
PartPart 1Part 2Part 3Part 4Part 5Part 6Part 7Part 8Part 9Part 10Part 11Part 12Part 13Part 14Part 15Part 16Part 17Part 18Part 19Part 20Part 21Part 22Part 23Part 24Part 25Part 26Part 27Part 28Part 29Part 30Part 31Part 32Part 33Part 34Part 35Part 36Part 37Part 38Part 39Part 40Part 41Part 42Part 43Part 44Part 45Part 46Part 47Part 48Part 49Part 50Part 51Part 52Part 53
Subpart25.025.125.225.325.425.525.625.725.825.925.1025.11
Section25.20025.20125.20225.20325.20425.20525.206
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Subpart 25.2 - Buy American-Construction MaterialsSubpart 25.2 - Buy American-Construction Materials    **Parent topic:**  Part 25 - Foreign Acquisition25.200 Scope of subpart.       (a)                    This subpart implements-                                                         (1)                           41 U.S.C. chapter 83, Buy American;                                                            (2)                          Executive Order 10582, December 17, 1954;                                                            (3) Executive Order 13881,                         July 15, 2019;                                                            (4)                           Executive Order 14005, January                            25, 2021;                            and                                                            (5) Waiver of the domestic                         content test of the Buy American statute for acquisitions of commercially                         available off-the-shelf (COTS) items in accordance with 41 U.S.C. 1907, but                         see  25.201(b)(2)(ii).                                                                             (b)                    It applies to contracts for the construction, alteration, or repair of any public building or public work in the United States.                                          (c) When using funds appropriated                   or otherwise provided by the American Recovery and Reinvestment Act of 2009 (Pub.                   L. 111-5) (Recovery Act) for construction, see                        subpart  25.6.25.201 Policy.       (a)                                      Except as provided in  25.202, use only domestic construction materials in construction contracts performed in the United States.                                          (b) The Buy American statute                   restricts the purchase of construction materials that are not domestic                   construction materials. For manufactured construction materials, the Buy American                      statute,   E.O. 13881, and   E.O. 14005                      use                   a two-part test to define domestic construction materials.                                                         (1)                                                  The article must be manufactured in the United States; and                                                            (2)                                                                           (i)                               Except for                                  construction material that consists wholly or predominantly of iron                                  or steel or a combination of both, the cost of domestic components                                  must exceed 60 percent of the cost of all the components, except                                  that the percentage will be 65 percent for items delivered in                                  calendar years 2024 through 2028 and 75 percent for items delivered                                  starting in calendar year 2029, but see paragraph (c) of this                                  section.                               In accordance with 41 U.S.C. 1907, this domestic content test of the                               Buy American statute has been waived for acquisitions of COTS items                               (see  12.505(a)).                                                                              (ii) For construction                               material that consists wholly or predominantly of iron or steel or a                               combination of both, the cost of foreign iron and steel must                               constitute less than 5 percent of the cost of all the components used                               in such construction material (see the definition of "foreign iron and                               steel" at  25.003). The cost of foreign                               iron and steel includes but is not limited to the cost of foreign iron                               or steel mill products (such as bar, billet, slab, wire, plate, or                               sheet), castings, or forgings utilized in the manufacture of the                               construction material and a good faith estimate of the cost of all                               foreign iron or steel components excluding COTS fasteners. This                               domestic content test of the Buy American statute has not been waived                               for acquisitions of COTS items in this category, except for COTS                               fasteners.                                                                                                                            (c)                                                         (1)                         A contract with a period of                            performance that spans the schedule of domestic content threshold                            increases specified in paragraph (b)(2)(i) of this section shall be                            required to comply with each increased threshold for the items in the                            year of delivery, unless the senior procurement executive of the                            contracting agency allows for application of an alternate domestic                            content test for that contract under which the domestic content threshold                            in effect at time of contract award will apply to the entire period of                            performance for the contract. This authority is not delegable. The senior                            procurement executive shall consult the Office of Management and Budget's                            Made in America Office before allowing the use of the alternate domestic                            content test.                                                            (2)                         When a senior procurement executive                            allows for application of an alternate domestic content test for a                            contract, see  25.1102(a)(3) or (c)(4) for use of                            the appropriate Alternate clause to reflect the domestic content                            threshold that will apply to the entire period of performance for that                            contract.25.202 Exceptions.       (a) When one of the following exceptions applies, the contracting officer may allow the contractor to acquire foreign construction materials without regard to the restrictions of the Buy American statute:                                                         (1)                         *Impracticable or inconsistent with public interest*. The head of the agency may determine that application of the restrictions of the Buy American statute to a particular construction material would be impracticable or would be inconsistent with the public interest. The public interest exception applies when an agency has an agreement with a foreign government that provides a blanket exception to the Buy American statute.                                                            (2)                         *Nonavailability*. The head of the                         contracting activity may determine that a particular construction material                         is not mined, produced, or manufactured in the United States in sufficient                         and reasonably available commercial quantities of a satisfactory quality.                         The determinations of nonavailability of the articles listed at  25.104(a) and                         the procedures at  25.103(b)(1)                         also apply if any of those articles are acquired as construction materials.                            A determination is not                            required before January 1, 2030, if there is an offer for a foreign                            construction material that exceeds 55 percent domestic content (see  25.204(b)(1)(ii) and  25.204(b)(2)(ii)).                                                            (3)                         *Unreasonable cost*. The contracting officer concludes that the cost of domestic construction material is unreasonable in accordance with  25.204.                                                            (4)                         *Information technology that is a commercial product.* The restriction on purchasing foreign construction material does not apply to the acquisition of information technology that is a commercial product, when using Fiscal Year 2004 or subsequent fiscal year funds (section 535(a) of Division F, Title V, Consolidated Appropriations Act, 2004, and similar sections in subsequent appropriations acts).                                                                             (b)                   *Determination and findings*. When a determination is made for any of the reasons stated in this section that certain foreign construction materials may be used, the contracting officer must list the excepted materials in the contract. The agency must make the findings justifying the exception available for public inspection.                                          (c)                   *Acquisitions under trade                   agreements*. For construction contracts with an estimated                   acquisition value of $6,708,000                   or more, see  subpart 25.4.25.203 Preaward determinations.       (a) 						            For any acquisition, an offeror may request from the contracting officer a determination concerning the inapplicability of the Buy American statute for specifically identified construction materials. The time for submitting the request is specified in the solicitation in paragraph (b) of either  52.225-10 or  52.225-12, whichever applies. The information and supporting data that must be included in the request are also specified in the solicitation in paragraphs (c) and (d) of either  52.225-9 or  52.225-11, whichever applies.                                          (b) 						            Before award, the contracting officer must evaluate all requests based on the information provided and may supplement this information with other readily available information.25.204 Evaluating offers of foreign construction material.       (a)                    Offerors proposing to use foreign construction material other than that listed by the Government in the applicable clause at  52.225-9, paragraph (b)(2), or  52.225-11, paragraph (b)(3), or covered by the WTO GPA or a Free Trade Agreement (paragraph (b)(2) of  52.225-11), must provide the information required by paragraphs (c) and (d) of the respective clauses.                                          (b)                                                         (1)                         *For construction                               material that is not a critical item and does not contain critical                               components*.                                                                           (i)                               Unless the head of the agency                                  specifies a higher percentage, the contracting officer shall add to                                  the offered price 20 percent of the cost of any foreign                                  construction material proposed for exception from the requirements                                  of the Buy American statute based on the unreasonable cost of                                  domestic construction materials. In the case of a tie, the                                  contracting officer shall give preference to an offer that does not                                  include foreign construction material excepted at the request of                                  the offeror on the basis of unreasonable cost.                                                                              (ii)                               For construction material that                                  is not a COTS item and does not consist wholly or predominantly of                                  iron or steel or a combination of both, if the procedures in                                  paragraph (b)(1)(i) of this section result in an unreasonable cost                                  determination for the domestic construction material offer or there                                  is no domestic construction material offer received, and the low                                  offer is for foreign construction material that does not exceed 55                                  percent domestic content, the contracting officer shall—                                                                                             (A)                                     Treat the lowest offer of                                        foreign construction material that is manufactured in the                                        United States and exceeds 55 percent domestic content as a                                        domestic offer; and                                                                                                (B)                                     Determine the                                        reasonableness of the cost of this offer by applying the                                        evaluation factor listed in paragraph (b)(1)(i) to the low                                        offer.                                                                                                                                         (iii)                               The procedures in paragraph                                  (b)(1)(ii) of this section will no longer apply as of January 1,                                  2030.                                                                                                           (2)                         *For construction material that is a                               critical item or contains critical components*.                                                                           (i)                               The contracting officer shall                                  add to the offered price 20 percent, plus the additional preference                                  factor identified for the critical item or construction material                                  containing critical components listed at section  25.105, of the cost of any foreign construction material                                  proposed for exception from the requirements of the Buy American                                  statute based on the unreasonable cost of domestic construction                                  materials. In the case of a tie, the contracting officer shall give                                  preference to an offer that does not include foreign construction                                  material excepted at the request of the offeror on the basis of                                  unreasonable cost. See  25.105 for the list of                                  critical components and critical items.                                                                              (ii)                               For construction material that                                  is not a COTS item and does not consist wholly or predominantly of                                  iron or steel or a combination of both, if the procedures in                                  paragraph (b)(2)(i) of this section result in an unreasonable cost                                  determination for the domestic construction material offer or there                                  is no domestic construction material offer received, and the low                                  offer is for foreign construction material that does not exceed 55                                  percent domestic content, the contracting officer shall—                                                                                             (A)                                     Treat the lowest offer of                                        foreign construction material that is manufactured in the                                        United States and exceeds 55 percent domestic content as a                                        domestic offer; and                                                                                                (B)                                     Determine the                                        reasonableness of the cost of this offer by applying the                                        evaluation factors listed in this paragraph (b)(2) to the low                                        offer.                                                                                                                                         (iii)                               The procedures in paragraph                                  (b)(2)(ii) of this section will no longer apply as of January 1,                                  2030.                                                                                                                            (c)                    Offerors also may submit alternate offers based on use of equivalent domestic construction material to avoid possible rejection of the entire offer if the Government determines that an exception permitting use of a particular foreign construction material does not apply.                                          (d)                    If the contracting officer awards a contract to an offeror that proposed foreign construction material not listed in the applicable clause in the solicitation (paragraph (b)(2) of  52.225-9, or paragraph (b)(3) of  52.225-11), the contracting officer must add the excepted materials to the list in the contract clause.25.205 Postaward determinations.       (a) 						            If a contractor requests a determination regarding the inapplicability of the Buy American statute after contract award, the contractor must explain why it could not request the determination before contract award or why the need for such determination otherwise was not reasonably foreseeable. If the contracting officer concludes that the contractor should have made the request before contract award, the contracting officer may deny the request.                                          (b) 						            The contracting officer must base evaluation of any request for a determination regarding the inapplicability of the Buy American statute made after contract award on information required by paragraphs (c) and (d) of the applicable clause at  52.225-9 or  52.225-11 and/or other readily available information.                                          (c) 						            If a determination, under  25.202(a), is made after contract award that an exception to the Buy American statute applies, the contracting officer must negotiate adequate consideration and modify the contract to allow use of the foreign construction material. When the basis for the exception is the unreasonable price of a domestic construction material, adequate consideration is at least the differential established in  25.202(a) or in accordance with agency procedures.25.206 Noncompliance.       The contracting officer must-                                       (a) 						            Review allegations of Buy American statute violations;                                          (b) 						            Unless fraud is suspected, notify the contractor of the apparent unauthorized use of foreign construction material and request a reply, to include proposed corrective action; and                                          (c) 						            If the review reveals that a contractor or subcontractor has used foreign construction material without authorization, take appropriate action, including one or more of the following:                                                         (1) 								                Process a determination concerning the inapplicability of the Buy American statute in accordance with  25.205.                                                            (2) 								                Consider requiring the removal and replacement of the unauthorized foreign construction material.                                                            (3) 								                If removal and replacement of foreign construction material incorporated in a building or work would be impracticable, cause undue delay, or otherwise be detrimental to the interests of the Government, the contracting officer may determine in writing that the foreign construction material need not be removed and replaced. A determination to retain foreign construction material does not constitute a determination that an exception to the Buy American statute applies, and this should be stated in the determination. Further, a determination to retain foreign construction material does not affect the Government’s right to suspend or debar a contractor, subcontractor, or supplier for violation of the Buy American statute, or to exercise other contractual rights and remedies, such as reducing the contract price or terminating the contract for default.                                                            (4) 								                If the noncompliance is sufficiently serious, consider exercising appropriate contractual remedies, such as terminating the contract for default. Also consider preparing and forwarding a report to the agency suspending or debarring official in accordance with  subpart  9.4. If the noncompliance appears to be fraudulent, refer the matter to other appropriate agency officials, such as the officer responsible for criminal investigation.
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