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                            52.225-9 Buy American-Construction Materials.
        
                  FAR
FAR
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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52.225-9 Buy American-Construction Materials.52.225-9 Buy American-Construction          Materials.       As prescribed in 25.1102(a), insert the following             clause:          Buy American-Construction Materials (Oct             2022)                                       (a)                   *Definitions*. As used in this                   clause—                *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.                                                                         "Construction material" means an article,                   material, or supply brought to the construction site by the                   Contractor or a 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.                *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. Components                                     of foreign origin of the same class or kind                                     for which nonavailability determinations                                     have been made are treated as domestic.                                     Components of unknown origin are treated as                                     foreign; or                                                                                                         (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.                *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.                                          (b) Domestic preference.                                                         (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 materials, excluding COTS fasteners. (See                         FAR  12.505(a)(2)). The                         Contractor shall use only domestic construction material                         in performing this contract, except as provided in                         paragraphs (b)(2) and (b)(3) of this clause.                                                            (2) This requirement 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"*]                                                            (3) The Contracting Officer may                         add other foreign construction material to the list in                         paragraph (b)(2) 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 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;                                                                                                                  (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 is                                         manufactured in the United States and                                         does not exceed 55 percent domestic                                         content, the Contracting Officer will                                         treat the lowest offer of foreign                                         construction material that 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)(3)(i)(A)*(1)* of                                         this clause.                                                                                                                  (3) The                                         procedures in paragraph (b)(3)(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 foreign offer of 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)(3)(i)(B)*(1)* of                                         this clause.                                                                                                                  (3) The                                         procedures in paragraph (b)(3)(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 statute 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)(3) 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)(3)(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)*Item1:Foreign construction                                  material                            _______                            _______                            _______Domestic construction                                  material                            _______                            _______                            _______Item2:Foreign 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*                (Oct 2022). As prescribed in 25.1102(a)(3) substitute the                following sentence for the first sentence in 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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