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                            52.225-23 Required Use of American Iron, Steel, and Manufactured Goods-Buy American Statute-Construction Materials under Trade Agreements.
        
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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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52.225-23 Required Use of American Iron, Steel, and Manufactured Goods-Buy American Statute-Construction Materials under Trade Agreements.52.225-23 Required Use of American Iron, Steel,          and Manufactured Goods-Buy American Statute-Construction Materials          under Trade Agreements.       As prescribed in 25.1102(e), insert the following             clause:          Required Use of American Iron, Steel, and             Manufactured Goods-Buy American Statute-Construction Materials under             Trade Agreements (Nov 2023)                                       (a)                   *Definitions*. As used in this                   clause—                *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 lifes afety 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.                *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 the following:(1) An unmanufactured                         construction material mined or produced in the United                         States. (The Buy American statute applies.)                                                                     (2) A manufactured construction                         material that is manufactured in the United States and,                         if the construction material consists wholly or                         predominantly of iron or steel, the iron or steel was                         produced in the United States. (Section 1605 of the                         Recovery Act applies.)                                                                         *Foreign construction material*                   means a construction material other than a domestic                   construction material.                *Free trade agreement (FTA) country                   construction material* means a construction material that-(1) Is wholly the growth,                         product, or manufacture of an 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 an 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.                                                                         *Manufactured construction                   material* means any construction material that is not                   unmanufactured construction material.                *Nondesignated country* means a                   country other than the United States or a designated                   country.                *Recovery Act 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, Norway, Poland, Portugal, Romania, Singapore,                         Slovak Republic, Slovenia, Spain, Sweden, Switzerland,                         Taiwan, Ukraine, or United Kingdom);                                                                     (2) A Free Trade Agreement                         country (FTA) (Australia, Bahrain, Chile, Colombia,                         Costa Rica, Dominican Republic, El Salvador, Guatemala,                         Honduras, Korea (Republic of), Mexico, Morocco,                         Nicaragua, Oman, Panama, Peru, or Singapore); or                                                                     (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).                                                                         *Recovery Act designated country                   construction material* means a construction material that                   is a WTO GPA country construction material, an FTA country                   construction material, or a least developed country                   construction material.                *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.                *Unmanufactured construction                   material* means raw material brought to the construction                   site for incorporation into the building or work that has not been-(1) Processed into a specific                         form and shape; or                                                                     (2) Combined with other raw                         material to create a material that has different                         properties than the properties of the individual raw                         materials.                                                                         *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) The restrictions of section                         1605 of the American Recovery and Reinvestment Act of                         2009 (Pub. L. 111-5) (Recovery Act) do not apply to                         Recovery Act designated country manufactured                         construction material. The restrictions of the Buy                         American statute do not apply to designated country                         unmanufactured construction material. Consistent with                         U.S. obligations under international agreements, this                         clause implements-                                                                           (i) Section 1605 of the                               Recovery Act by requiring, unless an exception                               applies, that all manufactured construction                               material in the project is manufactured in the                               United States and, if the construction material                               consists wholly or predominantly of iron or steel,                               the iron or steel was 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, except                               metallurgical processes involving refinement of                               steel additives); and.                                                                              (ii) The Buy American                               statute by providing a preference for                               unmanufactured construction material mined or                               produced in the United States over unmanufactured                               construction material mined or produced in a                               nondesignated country.                                                                                                           (2) The Contractor shall use                         only domestic construction material, Recovery Act                         designated country manufactured construction material,                         or designated country unmanufactured 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 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 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) The cost of                                     domestic manufactured construction material                                     is unreasonable when the cumulative cost of                                     such material, when compared to the cost of                                     comparable foreign manufactured construction                                     material, other than Recovery Act designated                                     country construction material, will increase                                     the overall cost of the contract by more                                     than 25 percent;                                                                                                (B) The cost of                                     domestic unmanufactured construction                                     material is unreasonable when the cost of                                     such material exceeds the cost of comparable                                     foreign unmanufactured construction                                     material, other than designated country                                     construction material, by more than 20                                     percent;                                                                                                                                         (ii) The construction                               material is not mined, produced, or manufactured                               in the United States in sufficient and reasonably                               available commercial quantities of a satisfactory                               quality; or                                                                              (iii) The application of                               the restriction of section 1605 of the Recovery                               Act to a particular manufactured construction                               material would be inconsistent with the public                               interest or the application of the Buy American                               statute to a particular unmanufactured                               construction material would be impracticable or                               inconsistent with the public interest.                                                                                                                            (c)                   *Request for determination of                   inapplicability of section 1605 of the Recovery Act or 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) Cost;                                                                                                (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)(4) of this                                     clause.                                                                                                                                         (ii) A request based on                               unreasonable cost shall include a reasonable                               survey of the market and a completed cost                               comparison table in the format in paragraph (d) of                               this clause.                                                                              (iii) The cost of                               construction material shall include all delivery                               costs to the construction site and any applicable                               duty.                                                                              (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                         section 1605 of the Recovery Act or 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 cost 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 section 1605 of the                         Recovery Act or the Buy American statute applies, use of                         foreign construction material other than manufactured                         construction material from a Recovery Act designated                         country or unmanufactured construction material from a                         designated country is noncompliant with the applicable                         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 (Nondesignated Country) and Domestic                   Construction Materials Cost Comparison                Construction Material                               Description                            Unit of Measure                            Quantity                            Cost (Dollars)**Item 1*:Foreign construction                                  material                            ________                            ________                            ________Domestic construction                                  material                            ________                            ________                            ________*Item 2*:Foreign construction                                  material                            ________                            ________                            ________Domestic construction                                  material                            ________                            ________                            ________[*List name, address,                                  telephone number, and contact for suppliers                                  surveyed.*                                  *Attach copy of                                  response; if oral, attach summary.*]                               [*Include other                                  applicable supporting information*.]                               [* *Include all delivery                                  costs to the construction site*.]                                 (End of clause)          *Alternate I*                (Nov 2023) . As prescribed in 25.1102(e), 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)(1) Is wholly the growth, product, or                manufacture of Bahrain, Mexico, or Oman; or                (2)(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) The                restrictions of section 1605 of the American Recovery and                Reinvestment Act of 2009 (Pub. L. 111-5) (Recovery Act) do not                apply to Recovery Act designated country manufactured                construction material. The restrictions of the Buy American                statute do not apply to designated country unmanufactured                construction material. Consistent with U.S. obligations under                international agreements, this clause implements-             (i) Section 1605 of the Recovery Act, by                requiring, unless an exception applies, that all manufactured                construction material in the project is manufactured in the                United States and, if the construction material consists wholly                or predominantly of iron or steel, the iron or steel was 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, except metallurgical processes involving                refinement of steel additives); and             (ii) The Buy American statute by providing a                preference for unmanufactured construction material mined or                produced in the United States over unmanufactured construction                material mined or produced in a nondesignated country.             (2) The Contractor shall use only domestic                construction material, Recovery Act designated country                manufactured construction material, or designated country                unmanufactured 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.    **Parent topic:**  52.225 [Reserved]
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