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                            52.225-11_Alternate II
        
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FAC Number: 2024-03 Effective Date: 02/23/2024
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Subpart52.052.152.252.3
Section52.20052.20152.20252.20352.20452.20552.20652.20752.20852.20952.21052.21152.21252.21352.21452.21552.21652.21752.21852.21952.22052.22152.22252.22352.22452.22552.22652.22752.22852.22952.23052.23152.23252.23352.23452.23552.23652.23752.23852.23952.24052.24152.24252.24352.24452.24552.24652.24752.24852.24952.25052.25152.25252.253
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52.225-11 Buy American-Construction Materials under Trade Agreements.52.225-11 Buy American-Construction Materials          under Trade Agreements.       As prescribed in 25.1102(c), insert the following             clause:          Buy American-Construction Materials under Trade             Agreements (Nov 2023)                                       (a)                   *Definitions*. As used in this                   clause—                *Caribbean Basin country                   construction material* means a construction material that—(1) Is wholly the growth,                         product, or manufacture of a Caribbean Basin country;                         or                                                                     (2) In the case of a                         construction material that consists in whole or in part                         of materials from another country, has been                         substantially transformed in a Caribbean Basin country                         into a new and different construction material distinct                         from the materials from which it was transformed.                                                                         *Commercially available                   off-the-shelf (COTS) item*—(1) Means any item of supply                         (including construction material) that is–                                                                                    (i) A commercial product                               (as defined in paragraph (1) of the definition of                               “commercial product” at Federal Acquisition                               Regulation (FAR)  2.101);                                                                                       (ii) Sold in substantial                               quantities in the commercial marketplace; and                                                                                       (iii) Offered to the                               Government, under a contract or subcontract at any                               tier, without modification, in the same form in                               which it is sold in the commercial marketplace;                               and                                                                                                                          (2) Does not include bulk                         cargo, as defined in   46 U.S.C.40102(4), such as                         agricultural products and petroleum products.                                                                         *Component* means an article,                   material, or supply incorporated directly into a construction                   material.                *Construction material* means an                   article, material, or supply brought to the construction site                   by the Contractor or subcontractor for incorporation into the                   building or work. The term also includes an item brought to                   the site preassembled from articles, materials, or supplies.                   However, emergency life safety systems, such as emergency                   lighting, fire alarm, and audio evacuation systems, that are                   discrete systems incorporated into a public building or work                   and that are produced as complete systems, are evaluated as a                   single and distinct construction material regardless of when                   or how the individual parts or components of those systems are                   delivered to the construction site. Materials purchased                   directly by the Government are supplies, not construction                   material.                *Cost of components* means—(1) For components purchased by                         the Contractor, the acquisition cost, including                         transportation costs to the place of incorporation into                         the construction material (whether or not such costs are                         paid to a domestic firm), and any applicable duty                         (whether or not a duty-free entry certificate is                         issued); or                                                                     (2) For components manufactured                         by the Contractor, all costs associated with the                         manufacture of the component, including transportation                         costs as described in paragraph (1) of this definition,                         plus allocable overhead costs, but excluding profit.                         Cost of components does not include any costs associated                         with the manufacture of the construction material.                                                                         *Critical component* means a                   component that is mined, produced, or manufactured in the                   United States and deemed critical to the U.S. supply chain.                   The list of critical components is at FAR  25.105.                *Critical item* means a domestic                   construction material or domestic end product that is deemed                   critical to U.S. supply chain resiliency. The list of critical                   items is at FAR  25.105.                *Designated country* means any of                   the following countries:                                                         (1) A World Trade Organization                         Government Procurement Agreement (WTO GPA) country                         (Armenia, Aruba, Australia, Austria, Belgium, Bulgaria,                         Canada, Croatia, Cyprus, Czech Republic, Denmark,                         Estonia, Finland, France, Germany, Greece, Hong Kong,                         Hungary, Iceland, Ireland, Israel, Italy, Japan, Korea                         (Republic of), Latvia, Liechtenstein, Lithuania,                         Luxembourg, Malta, Moldova, Montenegro, Netherlands, New                         Zealand, North Macedonia, Norway, Poland, Portugal,                         Romania, Singapore, Slovak Republic, Slovenia, Spain,                         Sweden, Switzerland, Taiwan, Ukraine, or United                         Kingdom);                                                            (2) A Free Trade Agreement                         (FTA) country (Australia, Bahrain, Chile, Colombia,                         Costa Rica, Dominican Republic, El Salvador, Guatemala,                         Honduras, Korea (Republic of), Mexico, Morocco,                         Nicaragua, Oman, Panama, Peru, or Singapore);                                                            (3) A least developed country                         (Afghanistan, Angola, Bangladesh, Benin, Bhutan, Burkina                         Faso, Burundi, Cambodia, Central African Republic, Chad,                         Comoros, Democratic Republic of Congo, Djibouti,                         Equatorial Guinea, Eritrea, Ethiopia, Gambia, Guinea,                         Guinea-Bissau, Haiti, Kiribati, Laos, Lesotho, Liberia,                         Madagascar, Malawi, Mali, Mauritania, Mozambique, Nepal,                         Niger, Rwanda, Samoa, Sao Tome and Principe, Senegal,                         Sierra Leone, Solomon Islands, Somalia, South Sudan,                         Tanzania, Timor-Leste, Togo, Tuvalu, Uganda, Vanuatu,                         Yemen, or Zambia); or                                                            (4) A Caribbean Basin country                         (Antigua and Barbuda, Aruba, Bahamas, Barbados, Belize,                         Bonaire, British Virgin Islands, Curacao, Dominica,                         Grenada, Guyana, Haiti, Jamaica, Montserrat, Saba, St.                         Kitts and Nevis, St. Lucia, St. Vincent and the                         Grenadines, Sint Eustatius, Sint Maarten, or Trinidad                         and Tobago).                                                   *Designated country construction                   material* means a construction material that is a WTO GPA                   country construction material, an FTA country construction                   material, a least developed country construction material, or                   a Caribbean Basin country construction material.                *Domestic construction material*                   means—(1) For construction material                         that does not consist wholly or predominantly of iron or                         steel or a combination of both-                                                                                    (i) An unmanufactured                               construction material mined or produced in the                               United States; or                                                                                       (ii) A construction                               material manufactured in the United States,                               if—                                                                                                      (A) The cost of its                                     components mined, produced, or manufactured                                     in the United States exceeds 60 percent of                                     the cost of all its 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.                                                                                                         (B) The                                     construction material is a COTS item; or                                                                                                                                                                                           (2) For construction material                         that consists wholly or predominantly of iron or steel                         or a combination of both, a construction material                         manufactured in the United States if the cost of foreign                         iron and steel constitutes less than 5 percent of the                         cost of all components used in such construction                         material. 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. Iron or steel                         components of unknown origin are treated as foreign. If                         the construction material contains multiple components,                         the cost of all the materials used in such construction                         material is calculated in accordance with the definition                         of "cost of components".                                                                         *Fastener* means a hardware                   device that mechanically joins or affixes two or more objects                   together. Examples of fasteners are nuts, bolts, pins, rivets,                   nails, clips, and screws.                *Foreign construction material*                   means a construction material other than a domestic                   construction material.                *Foreign iron and steel* means                   iron or steel products not produced in the United States.                   Produced in the United States means that all manufacturing                   processes of the iron or steel must take place in the United                   States, from the initial melting stage through the application                   of coatings, except metallurgical processes involving                   refinement of steel additives. The origin of the elements of                   the iron or steel is not relevant to the determination of                   whether it is domestic or foreign.                *Free Trade Agreement country                   construction material* means a construction material that-(1) Is wholly the growth,                         product, or manufacture of a Free Trade Agreement (FTA)                         country; or                                                                     (2) In the case of a                         construction material that consists in whole or in part                         of materials from another country, has been                         substantially transformed in a FTA country into a new                         and different construction material distinct from the                         materials from which it was transformed.                                                                         *Least developed country                   construction material* means a construction material that-(1) Is wholly the growth,                         product, or manufacture of a least developed country;                         or                                                                     (2) In the case of a                         construction material that consists in whole or in part                         of materials from another country, has been                         substantially transformed in a least developed country                         into a new and different construction material distinct                         from the materials from which it was transformed.                                                                         *Predominantly of iron or steel or a                   combination of both* means that the cost of the iron and                   steel content exceeds 50 percent of the total cost of all its                   components. The cost of iron and steel is the cost of the iron                   or steel mill products (such as bar, billet, slab, wire,                   plate, or sheet), castings, or forgings utilized in the                   manufacture of the product and a good faith estimate of the                   cost of iron or steel components excluding COTS fasteners.                *Steel* means an alloy that                   includes at least 50 percent iron, between 0.02 and 2 percent                   carbon, and may include other elements.                *United States* means the 50                   States, the District of Columbia, and outlying areas.                *WTO GPA country construction                   material* means a construction material that-(1) Is wholly the growth,                         product, or manufacture of a WTO GPA country; or                                                                     (2) In the case of a                         construction material that consists in whole or in part                         of materials from another country, has been                         substantially transformed in a WTO GPA country into a                         new and different construction material distinct from                         the materials from which it was transformed.                                                                                                   (b) Construction materials.                                                         (1) This clause implements   41 U.S.C.chapter 83, Buy                         American, by providing a preference for domestic                         construction material. In accordance with   41 U.S.C.1907, the domestic                         content test of the Buy American statute is waived for                         construction material that is a COTS item, except that                         for construction material that consists wholly or                         predominantly of iron or steel or a combination of both,                         the domestic content test is applied only to the iron                         and steel content of the construction material,                         excluding COTS fasteners. (See FAR  12.505(a)(2)). In addition,                         the Contracting Officer has determined that the WTO GPA                         and Free Trade Agreements (FTAs) apply to this                         acquisition. Therefore, the Buy American restrictions                         are waived for designated country construction                         materials.                                                            (2) The Contractor shall use                         only domestic or designated country construction                         material in performing this contract, except as provided                         in paragraphs (b)(3) and (b)(4) of this clause.                                                            (3) The requirement in                         paragraph (b)(2) of this clause does not apply to                         information technology that is a commercial product or                         to the construction materials or components listed by                         the Government as follows:                      [*Contracting Officer to list                         applicable excepted materials or indicate                         "none"*]                                                            (4) The Contracting Officer may                         add other foreign construction material to the list in                         paragraph (b)(3) of this clause if the Government                         determines that-                                                                           (i) The cost of domestic                               construction material would be unreasonable.                                                                                             (A)                                     *For domestic                                     construction material that is not a critical                                     item or does not contain critical                                     components*.                                                                                                               (1) The cost of                                         a particular domestic construction                                         material subject to the restrictions of                                         the Buy American statute is unreasonable                                         when the cost of such material exceeds                                         the cost of foreign material by more                                         than 20 percent;                                                                                                                  (2) 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 cost of a                                         particular domestic construction                                         material is determined to be                                         unreasonable or there is no domestic                                         offer received, and the low offer is for                                         foreign construction material that does                                         not exceed 55 percent domestic content,                                         the Contracting Officer will 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                                         determine whether the cost of that offer                                         is unreasonable by applying the                                         evaluation factor listed in paragraph (b)(4)(i)(A)*(1)* of                                         this clause.                                                                                                                  (3) The                                         procedures in paragraph (b)(4)(i)(A)*(2)* of                                         this clause will no longer apply as of                                         January 1, 2030.                                                                                                                                                                       (B)                                     *For domestic                                     construction material that is a critical                                     item or contains critical                                     components*.                                                                                                               (1) The cost of                                         a particular domestic construction                                         material that is a critical item or                                         contains critical components, subject to                                         the requirements of the Buy American                                         statute, is unreasonable when the cost                                         of such material exceeds the cost of                                         foreign material by more than 20 percent                                         plus the additional preference factor                                         identified for the critical item or                                         construction material containing                                         critical components listed at FAR  25.105.                                                                                                                  (2) For                                         construction material that does not                                         consist wholly or predominantly of iron                                         or steel or a combination of both, if                                         the cost of a particular domestic                                         construction material is determined to                                         be unreasonable or there is no domestic                                         offer received, and the low offer is for                                         foreign construction material that does                                         not exceed 55 percent domestic content,                                         the Contracting Officer will 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 determine whether the cost of that                                         offer is unreasonable by applying the                                         evaluation factor listed in paragraph (b)(4)(i)(B)*(1)* of                                         this clause.                                                                                                                  (3) The                                         procedures in paragraph (b)(4)(i)(B)*(2)* of                                         this clause will no longer apply as of                                         January 1, 2030.                                                                                                                                                                                                                (ii) The application of                               the restriction of the Buy American Act to a                               particular construction material would be                               impracticable or inconsistent with the public                               interest; or                                                                              (iii) The construction                               material is not mined, produced, or manufactured                               in the United States in sufficient and reasonably                               available commercial quantities of a satisfactory                               quality.                                                                                                                            (c) Request for determination of                   inapplicability of the Buy American statute.                                                         (1)                                                                           (i) Any Contractor                               request to use foreign construction material in                               accordance with paragraph (b)(4) of this clause                               shall include adequate information for Government                               evaluation of the request, including-                                                                                             (A) A description                                     of the foreign and domestic construction                                     materials;                                                                                                (B) Unit of                                     measure;                                                                                                (C) Quantity;                                                                                                (D) Price;                                                                                                (E) Time of                                     delivery or availability;                                                                                                (F) Location of the                                     construction project;                                                                                                (G) Name and                                     address of the proposed supplier; and                                                                                                (H) A detailed                                     justification of the reason for use of                                     foreign construction materials cited in                                     accordance with paragraph (b)(3) of this                                     clause.                                                                                                                                         (ii) A request based on                               unreasonable cost shall include a reasonable                               survey of the market and a completed price                               comparison table in the format in paragraph (d) of                               this clause.                                                                              (iii) The price of                               construction material shall include all delivery                               costs to the construction site and any applicable                               duty (whether or not a duty-free certificate may                               be issued).                                                                              (iv) Any Contractor                               request for a determination submitted after                               contract award shall explain why the Contractor                               could not reasonably foresee the need for such                               determination and could not have requested the                               determination before contract award. If the                               Contractor does not submit a satisfactory                               explanation, the Contracting Officer need not make                               a determination.                                                                                                           (2) If the Government                         determines after contract award that an exception to the                         Buy American statute applies and the Contracting Officer                         and the Contractor negotiate adequate consideration, the                         Contracting Officer will modify the contract to allow                         use of the foreign construction material. However, when                         the basis for the exception is the unreasonable price of                         a domestic construction material, adequate consideration                         is not less than the differential established in                         paragraph (b)(4)(i) of this clause.                                                            (3) Unless the Government                         determines that an exception to the Buy American statute                         applies, use of foreign construction material is                         noncompliant with the Buy American statute.                                                                             (d)                   *Data*. To permit evaluation of                   requests under paragraph (c) of this clause based on                   unreasonable cost, the Contractor shall include the following                   information and any applicable supporting data based on the                   survey of suppliers:                Foreign and Domestic                               Construction Materials Price ComparisonConstruction Material                               Description                            Unit of Measure                            Quantity                            Price (Dollars)*Item1Foreign construction                                  material                            _______                            _______                            _______Domestic construction                                  material                            _______                            _______                            _______Item1Foreign construction                                  material                            _______                            _______                            _______Domestic construction                                  material                            _______                            _______                            _______                [* *Include all delivery costs to the                   construction site and any applicable duty (whether or not a                   duty-free entry certificate is issued*)].                [ *List name, address, telephone                   number, and contact for suppliers surveyed. Attach copy of                   response; if oral, attach summary.* ]                [ *Include other applicable supporting                   information.* ]                                 (End of clause)          *Alternate I*                (Nov 2023) . As prescribed in 25.1102(c)(3), add the                following definition of "Bahraini, Mexican, or Omani construction                material" to paragraph (a) of the basic clause, and substitute                the following paragraphs (b)(1) and (b)(2) for paragraphs (b)(1)                and (b)(2) of the basic clause:             "Bahraini, Mexican, or Omani construction                material" means a construction material that-             (1) Is wholly the growth, product, or                manufacture of Bahrain, Mexico, or Oman; or             (2) In the case of a construction material                that consists in whole or in part of materials from another                country, has been substantially transformed in Bahrain, Mexico,                or Oman into a new and different construction material distinct                from the materials from which it was transformed.             (b) Construction materials. (1) This clause                implements   41 U.S.C. chapter 83, Buy American,                by providing a preference for domestic construction material. In                accordance with   41 U.S.C. 1907, the domestic content                test of the Buy American statute is waived for construction                material that is a COTS item, except that for construction                material that consists wholly or predominantly of iron or steel                or a combination of both, the domestic content test is applied                only to the iron and steel content of the construction material,                excluding COTS fasteners. (See  12.505(a)(2)). In addition, the                Contracting Officer has determined that the WTO GPA and all the                Free Trade Agreements except the Bahrain FTA, United                States-Mexico-Canada Agreement, and the Oman FTA apply to this                acquisition. Therefore, the Buy American statute restrictions are                waived for designated country construction materials other than                Bahraini, Mexican, or Omani construction materials.             (2) The Contractor shall use only domestic or                designated country construction material other than Bahraini,                Mexican, or Omani construction material in performing this                contract, except as provided in paragraphs (b)(3) and (b)(4) of                this clause.                                       *Alternate II*                (Oct 2022). As prescribed in 25.1102(c)(4) substitute the                following sentence for the first sentence of paragraph (1)(ii)(A)                of the definition of *domestic construction material* in                paragraph (a):             (A) The cost of its components mined,                produced, or manufactured in the United States exceeds __ percent of the cost of all its                components. [ *Contracting officer to insert the                percentage.* ]    **Parent topic:**  52.225 [Reserved]
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