Part 25 - Foreign Acquisition

25.000 Scope of part.

25.001 General.

25.002 Applicability of subparts.

25.003 Definitions.

Subpart 25.1 - Buy American-Supplies

25.100 Scope of subpart.

25.101 General.

25.102 Policy.

25.103 Exceptions.

25.104 Nonavailable articles.

25.105 Critical components and critical items.

25.106 Determining reasonableness of cost.

Subpart 25.2 - Buy American-Construction Materials

25.200 Scope of subpart.

25.201 Policy.

25.202 Exceptions.

25.203 Preaward determinations.

25.204 Evaluating offers of foreign construction material.

25.205 Postaward determinations.

25.206 Noncompliance.

Subpart 25.3 - Contracts Performed Outside the United States

25.301 Contractor personnel in a designated operational area or supporting a diplomatic or consular

mission outside the United States.

25.301-1 Scope.

25.301-2 Government support.

25.301-3 Weapons.
25.301-4 Contract clause.

25.302 Contractors performing private security functions outside the United States.

25.302-1 Scope.

25.302-2 Definitions.

25.302-3 Applicability.

25.302-4 Policy.

25.302-5 Remedies.

25.302-6 Contract clause.

Subpart 25.4 - Trade Agreements

25.400 Scope of subpart.

25.401 Exceptions.

25.402 General.

25.403 World Trade Organization Government Procurement Agreement and Free Trade Agreements.

25.404 Least developed countries.

25.405 Caribbean Basin Trade Initiative.

25.406 Israeli Trade Act.

25.407 Agreement on Trade in Civil Aircraft.

25.408 Procedures.

Subpart 25.5 - Evaluating Foreign Offers-Supply Contracts

25.501 General.

25.502 Application.

25.503 Group offers.

25.504 Evaluation examples.

25.504-1 Buy American statute.

25.504-2 WTO GPA/Caribbean Basin Trade Initiative/FTAs.

25.504-3 FTA/Israeli Trade Act.

25.504-4 Group award basis.

Subpart 25.6 - American Recovery and Reinvestment Act-Buy American statute-Construction
Materials

25.600 Scope of subpart.

25.601 Definitions.

25.602 Policy.

25.602-1 Section 1605 of the Recovery Act.

25.602-2 Buy American statute

25.603 Exceptions.

25.604 Preaward determination concerning the inapplicability of section 1605 of the Recovery Act or

the Buy American statute.

25.605 Evaluating offers of foreign construction material.

25.606 Postaward determinations.

25.607 Noncompliance.

Subpart 25.7 - Prohibited Sources

25.700 Scope of subpart.

25.701 Restrictions administered by the Department of the Treasury on acquisitions of supplies or

services from prohibited sources.

25.702 Prohibition on contracting with entities that conduct restricted business operations in Sudan.

25.702-1 Definitions.

25.702-2 Certification.

25.702-3 Remedies.

25.702-4 Waiver.

25.703 Prohibition on contracting with entities that engage in certain activities or transactions

relating to Iran.

25.703-1 Definitions.

25.703-2 Iran Sanctions Act.

25.703-3 Prohibition on contracting with entities that export sensitive technology to Iran.

25.703-4 Waiver.

Subpart 25.8 - Other International Agreements and Coordination

25.801 General.
25.802 Procedures.

Subpart 25.9 - Customs and Duties

25.900 Scope of subpart.

25.901 Policy.

25.902 Procedures.

25.903 Exempted supplies.

Subpart 25.10 - Additional Foreign Acquisition Regulations

25.1001 Waiver of right to examination of records.

25.1002 Use of foreign currency.

25.1003 Tax on certain foreign procurements.

Subpart 25.11 - Solicitation Provisions and Contract Clauses

25.1101 Acquisition of supplies.

25.1102 Acquisition of construction.

25.1103 Other provisions and clauses.

Parent topic: Federal Acquisition Regulation

25.000 Scope of part.

(a) This part provides policies and procedures for-

(1) Acquisition of foreign supplies, services, and construction materials; and

(2) Contracts performed outside the United States.

(b) It implements 41 U.S.C. chapter 83, Buy American; trade agreements; and other laws and

regulations.

25.001 General.

(a) 41 U.S.C. chapter 83, Buy American-

(1) Restricts the purchase of supplies, that are not domestic end products, for use within the United

States. A foreign end product may be purchased if the contracting officer determines that the price

of the lowest domestic offer is unreasonable or if another exception applies (see subpart 25.1); and

(2) Requires, with some exceptions, the use of only domestic construction materials in contracts for

construction in the United States (see subpart 25.2).
(b) The restrictions in the Buy American statute are not applicable in acquisitions subject to certain

trade agreements (see subpart 25.4). In these acquisitions, end products and construction materials

from certain countries receive nondiscriminatory treatment in evaluation with domestic offers.

Generally, the dollar value of the acquisition determines which of the trade agreements applies.

Exceptions to the applicability of the trade agreements are described in subpart 25.4.

(c) The test to determine the country of origin for an end product under the Buy American statute

(see the various country "end product" definitions in 25.003) is different from the test to determine

the country of origin for an end product under the trade agreements, or the criteria for the

representation on end products manufactured outside the United States (see 52.225-18).

(1) The Buy American statute uses a two-part test to define a "domestic end product" or "domestic

construction material" (manufactured in the United States and a domestic content test). The

domestic content test has been waived for acquisition of commercially available off-the-shelf (COTS)

items, except a product that consists wholly or predominantly of iron or steel or a combination of

both (excluding COTS fasteners) (see 25.101(a) and 25.201(b)).

(2) Under the trade agreements, the test to determine country of origin is "substantial

transformation" (i.e., transforming an article into a new and different article of commerce, with a

name, character, or use distinct from the original article).

(3) For the representation at 52.225-18, the only criterion is whether the place of manufacture of an

end product is in the United States or outside the United States, without regard to the origin of the

components.

(4) When using funds appropriated under the American Recovery and Reinvestment Act of 2009

(Pub. L. 111-5), the definition of "domestic manufactured construction material" requires

manufacture in the United States but does not include a requirement with regard to the origin of the

components. If the construction material consists wholly or predominantly of iron or steel, the iron

or steel must be produced in the United States.

25.002 Applicability of subparts.

The following table shows the applicability of the subparts. subpart 25.5 provides comprehensive

procedures for offer evaluation and examples.

Subpart Supplies For Use Construction Services

Performed

Inside

U.S.

Outside

U.S.

Inside

U.S.

Outside

U.S.

Inside

U.S.

Outside

U.S.

25.1 Buy AmericanSupplies X - - - - -
Subpart Supplies For Use Construction Services

Performed

Inside

U.S.

Outside

U.S.

Inside

U.S.

Outside

U.S.

Inside

U.S.

Outside

U.S.

25.2 Buy AmericanConstruction

Materials

- - X - - -

25.3 Contracts

Performed Outside

the United States

- X - X - X

25.4 Trade

Agreements X X X X X X

25.5 Evaluating

Foreign OffersSupply ContractsX X - - - -

25.6 American

Recovery and

Reinvestment ActBuy American

statute-Construction

Materials

X

25.7 Prohibited

Sources X X X X X X

25.8 Other

International

Agreements and

Coordination

X X - X - X

25.9 Customs and

Duties X - - - - -

25.10 Additional

Foreign Acquisition

Regulations

X X X X X X

25.11 Solicitation

Provisions and

Contract Clauses

X X X X X X
25.003 Definitions.

As used in this part—

Caribbean Basin country means any of the following countries: 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.

Caribbean Basin country end product—

(1) Means an article that–

(i)

(A) Is wholly the growth, product, or manufacture of a Caribbean Basin country; or

(B) In the case of an article 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 article of

commerce with a name, character, or use distinct from that of the article or articles from which it

was transformed; and

(ii) Is not excluded from duty-free treatment for Caribbean countries under 19 U.S.C. 2703(b).

(A) For this reason, the following articles are not Caribbean Basin country end products:

(1) Tuna, prepared or preserved in any manner in airtight containers.

(2) Petroleum, or any product derived from petroleum.

(3) Watches and watch parts (including cases, bracelets, and straps) of whatever type including, but

not limited to, mechanical, quartz digital, or quartz analog, if such watches or watch parts contain

any material that is the product of any country to which the Harmonized Tariff Schedule of the

United States (HTSUS) column 2 rates of duty apply (i.e., Afghanistan, Cuba, Laos, North Korea, and

Vietnam).

(4) Certain of the following: textiles and apparel articles; footwear, handbags, luggage, flat goods,

work gloves, and leather wearing apparel; or handloomed, handmade, and folklore articles.

(B) Access to the HTSUS to determine duty-free status of articles of the types listed in paragraph

(1)(ii)(A)(4) of this definition is available via the Internet at https://usitc.gov/tata/hts/index.htm. In

particular, see the following:

(1) General Note 3(c), Products Eligible for Special Tariff treatment.

(2) General Note 17, Products of Countries Designated as Beneficiary Countries under the United

States- Caribbean Basin Trade Partnership Act of 2000.

(3) Section XXII, Chapter 98, Subchapter II, Articles Exported and Returned, Advanced or Improved

Abroad, U.S. Note 7(b).

(4) Section XXII, Chapter 98, Subchapter XX, Goods Eligible for Special Tariff Benefits under the
United States-Caribbean Basin Trade Partnership Act; and

(2) Refers to a product offered for purchase under a supply contract, but for purposes of calculating

the value of the acquisition, includes services (except transportation services) incidental to the

article, provided that the value of those incidental services does not exceed that of the article itself.

Civil aircraft and related articles means-

(1) All aircraft other than aircraft to be purchased for use by the Department of Defense or the U.S.

Coast Guard;

(2) The engines (and parts and components for incorporation into the engines) of these aircraft;

(3) Any other parts, components, and subassemblies for incorporation into the aircraft; and

(4) Any ground flight simulators, and parts and components of these simulators, for use with respect

to the aircraft, whether to be used as original or replacement equipment in the manufacture, repair,

maintenance, rebuilding, modification, or conversion of the aircraft and without regard to whether

the aircraft or articles receive duty-free treatment under section 601(a)(2) of the Trade Agreements

Act.

Component means an article, material, or supply incorporated directly into an end product or

construction material.

Construction material means an article, material, or supply brought to the construction site by a

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 end product or 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 end product.

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 25.105.

Critical item means a domestic construction material or domestic end product that is deemed critical

to the U.S. supply chain. The list of critical items is at 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 (known in the World

Trade Organization as "the Separate Customs Territory of Taiwan, Penghu, Kinmen and Matsu

(Chinese Taipei)"), 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 end product means a WTO GPA country end product, an FTA country end

product, a least developed country end product, or a Caribbean Basin country end product.

Domestic construction material means-

(1) For use in subparts other than 25.6—

(i) For construction material that does not consist wholly or predominantly of iron or steel or a

combination of both—

(A) An unmanufactured construction material mined or produced in the United States; or

(B) A construction material manufactured in the United States, if–

(1) The cost of the 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 (unless an alternate percentage is established for a contract in accordance with

FAR 25.201(c)).Components of unknown origin are treated as foreign; or

(2) The construction material is a commercially available off-the-shelf (COTS) item; or

(ii) 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 the 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” in this section; or

(3) For use in subpart 25.6, see the definition in 25.601.

Domestic end product means-

(1) For an end product that does not consist wholly or predominantly of iron or steel or a

combination of both—

(i) An unmanufactured end product mined or produced in the United States;

(ii) An end product 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 (unless an alternate percentage is established for a contract in accordance with

FAR 25.101(d)). Components of unknown origin are treated as foreign. Scrap generated, collected,

and prepared for processing in the United States is considered domestic; or

(B) The end product is a COTS item; or

(2) For an end product that consists wholly or predominantly of iron or steel or a combination of

both, an end product manufactured in the United States, if the cost of foreign iron and steel

constitutes less than 5 percent of the cost of all the components used in the end product. 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 end product 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

end product contains multiple components, the cost of all the materials used in such end product is

calculated in accordance with the definition of "cost of components" in this section.

Domestic offer means an offer of a domestic end product. When the solicitation specifies that award

will be made on a group of line items, a domestic offer means an offer where the proposed price of

the domestic end products exceeds 50 percent of the total proposed price of the group.

Eligible offer means an offer of an eligible product. When the solicitation specifies that award will be

made on a group of line items, an eligible offer means a foreign offer where the combined proposed

price of the eligible products and the domestic end products exceeds 50 percent of the total

proposed price of the group.

Eligible product means a foreign end product, construction material, or service that, due to

applicability of a trade agreement to a particular acquisition, is not subject to discriminatory

treatment.

End product means those articles, materials, and supplies to be acquired for public use.

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 contractor means a contractor or subcontractor organized or existing under the laws of a

country other than the United States.

Foreign end product means an end product other than a domestic end product.

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.

Foreign offer means any offer other than a domestic offer.

Free Trade Agreement country means Australia, Bahrain, Chile, Colombia, Costa Rica, Dominican

Republic, El Salvador, Guatemala, Honduras, Korea (Republic of), Mexico, Morocco, Nicaragua,

Oman, Panama, Peru, or Singapore.

Free Trade Agreement country end product means an article that-

(1) Is wholly the growth, product, or manufacture of a Free Trade Agreement (FTA) country; or

(2) In the case of an article 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 article of commerce with

a name, character, or use distinct from that of the article or articles from which it was transformed.

The term refers to a product offered for purchase under a supply contract, but for purposes of

calculating the value of the end product, includes services (except transportation services) incidental

to the article, provided that the value of those incidental services does not exceed that of the article

itself.

Israeli end product means an article that-

(1) Is wholly the growth, product, or manufacture of Israel; or

(2) In the case of an article that consists in whole or in part of materials from another country, has

been substantially transformed in Israel into a new and different article of commerce with a name,

character, or use distinct from that of the article or articles from which it was transformed.

Least developed country means any of the following countries: 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.

Least developed country end product means an article that-

(1) Is wholly the growth, product, or manufacture of a least developed country; or

(2) In the case of an article 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 article of

commerce with a name, character, or use distinct from that of the article or articles from which it

was transformed. The term refers to a product offered for purchase under a supply contract, but for

purposes of calculating the value of the end product, includes services (except transportation

services) incidental to the article, provided that the value of those incidental services does not

exceed that of the article itself.

Noneligible offer means an offer of a noneligible product.

Noneligible product means a foreign end product that is not an eligible product.

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.

U.S.-made end product means an article that is mined, produced, or manufactured in the United

States or that is substantially transformed in the United States into a new and different article of

commerce with a name, character, or use distinct from that of the article or articles from which it

was transformed.

World Trade Organization Government Procurement Agreement (WTO GPA) country means any of

the following countries: 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,

Portugal, Romania, Singapore, Slovak Republic, Slovenia, Spain, Sweden, Switzerland, Taiwan,

Ukraine, or United Kingdom.

WTO GPA country end product means an article that-

(1) Is wholly the growth, product, or manufacture of a WTO GPA country; or

(2) In the case of an article 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 article of commerce

with a name, character, or use distinct from that of the article or articles from which it was

transformed. The term refers to a product offered for purchase under a supply contract, but for

purposes of calculating the value of the end product includes services (except transportation

services) incidental to the article, provided that the value of those incidental services does not

exceed that of the article itself.

Subpart 25.1 - Buy American-Supplies
25.100 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 acquisition of commercially

available off-the-shelf (COTS) items in accordance with 41 U.S.C. 1907, but see 25.101(a)(2)(ii).

(b) It applies to supplies acquired for use in the United States, including supplies acquired under

contracts set aside for small business concerns, if-

(1) The supply contract exceeds the micro-purchase threshold; or

(2) The supply portion of a contract for services that involves the furnishing of supplies (e.g., lease)

exceeds the micro-purchase threshold.

25.101 General.

(a) The Buy American statute restricts the purchase of supplies that are not domestic end products.

For manufactured

end products, the Buy American statute, E.O. 13881, and E.O. 14005 use a two-part test to define a

domestic end product.

(1) The article must be manufactured in the United States; and

(2)

(i) Except for an end product that consists wholly or predominantly of iron or steel or a combination

of both, the cost of domestic components shall 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 (d) 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)) (but see paragraph (a)(2)(ii) of this

section).

(ii) For an end product 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 the end product (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 end product 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.

(b) The Buy American statute applies to small business set-asides. A manufactured product of a small

business concern is a U.S.-made end product, but is not a domestic end product unless it meets the

domestic content test in paragraph (a)(2) of this section.

(c) Exceptions that allow the purchase of a foreign end product are listed at 25.103. The

unreasonable cost exception is implemented through the use of an evaluation factor applied to low

foreign offers that are not eligible offers. The evaluation factor is not used to provide a preference

for one foreign offer over another. Evaluation procedures and examples are provided in subpart 

25.5 .

(d)

(1) A contract with a period of performance that spans the schedule of domestic content threshold

increases specified in paragraph (a)(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—

(i)See 25.1101(a)(1)(ii) or 25.1101(b)(1)(v) 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; and

(ii)Use the fill-in at 52.213-4(b)(1)(xvii)(B) instead of including 52.225-1 Alternate I when using

52.213-4, Terms and Conditions—Simplified Acquisitions (Other Than Commercial Products and

Commercial Services).

25.102 Policy.

Except as provided in 25.103, acquire only domestic end products for public use inside the United

States.

25.103 Exceptions.

When one of the following exceptions applies, the contracting officer may acquire a foreign end

product without regard to the restrictions of the Buy American statute:

(a) Public interest. The head of the agency may make a determination that domestic preference

would be inconsistent with the public interest. This exception applies when an agency has an

agreement with a foreign government that provides a blanket exception to the Buy American statute.

(b) Nonavailability. The Buy American statute does not apply with respect to articles, materials, or

supplies if articles, materials, or supplies of the class or kind to be acquired, either as end items or
components, are not mined, produced, or manufactured in the United States in sufficient and

reasonably available commercial quantities and of a satisfactory quality.

(1) Class determinations.

(i) A nonavailability determination has been made for the articles listed in 25.104. This

determination does not necessarily mean that there is no domestic source for the listed items, but

that domestic sources can only meet 50 percent or less of total U.S. Government and nongovernment

demand.

(ii) Before acquisition of an article on the list, the procuring agency is responsible to conduct market

research appropriate to the circumstances, including seeking of domestic sources. This applies to

acquisition of an article as-

(A) An end product; or

(B) A significant component (valued at more than 50 percent of the value of all the components).

(iii) The determination in paragraph (b)(1)(i) of this section does not apply if the contracting officer

learns at any time before the time designated for receipt of bids in sealed bidding or final offers in

negotiation that an article on the list is available domestically in sufficient and reasonably available

commercial quantities of a satisfactory quality to meet the requirements of the solicitation. The

contracting officer must-

(A) Ensure that the appropriate Buy American statute provision and clause are included in the

solicitation (see 25.1101(a), 25.1101(b), or 25.1102);

(B) Specify in the solicitation that the article is available domestically and that offerors and

contractors may not treat foreign components of the same class or kind as domestic components;

and

(C) Submit a copy of supporting documentation to the appropriate council identified in 1.201-1, in

accordance with agency procedures, for possible removal of the article from the list.

(2) Individual determinations.

(i) The head of the contracting activity may make a determination that an article, material, or supply

is not mined, produced, or manufactured in the United States in sufficient and reasonably available

commercial quantities of a satisfactory quality. A determination is not required before January 1,

2030, if there is an offer for a foreign end product that exceeds 55 percent domestic content (see

25.106(b)(2) and 25.106(c)(2)).

(ii) If the contracting officer considers that the nonavailability of an article is likely to affect future

acquisitions, the contracting officer may submit a copy of the determination and supporting

documentation to the appropriate council identified in 1.201-1, in accordance with agency

procedures, for possible addition to the list in 25.104.

(3) A written determination is not required if all of the following conditions are present:

(i) The acquisition was conducted through use of full and open competition.

(ii) The acquisition was synopsized in accordance with 5.201.
(iii) No offer for a domestic end product was received.

(c) Unreasonable cost. The contracting officer may determine that the cost of a domestic end

product would be unreasonable, in accordance with 25.106 and subpart 25.5.

(d) Resale. The contracting officer may purchase foreign end products specifically for commissary

resale.

(e) Information technology that is a commercial product. The restriction on purchasing foreign end

products 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).

25.104 Nonavailable articles.

(a) The following articles have been determined to be nonavailable in accordance with

25.103(b)(1)(i):

Acetylene, black.

Agar, bulk.

Anise.

Antimony, as metal or oxide.

Asbestos, amosite, chrysotile, and crocidolite.

Bamboo shoots.

Bananas.

Bauxite.

Beef, corned, canned.

Beef extract.

Bephenium hydroxynapthoate.

Bismuth.

Books, trade, text, technical, or scientific; newspapers; pamphlets; magazines; periodicals; printed

briefs and films; not printed in the United States and for which domestic editions are not available.

Brazil nuts, unroasted

Cadmium, ores and flue dust.

Calcium cyanamide.

Capers.
Cashew nuts.

Castor beans and castor oil.

Chalk, English.

Chestnuts.

Chicle.

Chrome ore or chromite.

Cinchona bark.

Cobalt, in cathodes, rondelles, or other primary ore and metal forms.

Cocoa beans.

Coconut and coconut meat, unsweetened, in shredded, desiccated, or similarly prepared form.

Coffee, raw or green bean.

Colchicine alkaloid, raw.

Copra.

Cork, wood or bark and waste.

Cover glass, microscope slide.

Crane rail (85-pound per foot).

Cryolite, natural.

Dammar gum.

Diamonds, industrial, stones and abrasives.

Emetine, bulk.

Ergot, crude.

Erythrityl tetranitrate.

Fair linen, altar.

Fibers of the following types: abaca, abace, agave, coir, flax, jute, jute burlaps, palmyra, and sisal.

Goat and kidskins.

Goat hair canvas.

Grapefruit sections, canned.

Graphite, natural, crystalline, crucible grade.
Hand file sets (Swiss pattern).

Handsewing needles.

Hemp yarn.

Hog bristles for brushes.

Hyoscine, bulk.

Ipecac, root.

Iodine, crude.

Kaurigum.

Lac.

Leather, sheepskin, hair type.

Lavender oil.

Manganese.

Menthol, natural bulk.

Mica.

Microprocessor chips (brought onto a Government construction site as separate units for

incorporation into building systems during construction or repair and alteration of real property).

Modacrylic fiber.

Nickel, primary, in ingots, pigs, shots, cathodes, or similar forms; nickel oxide and nickel salts.

Nitroguanidine (also known as picrite).

Nux vomica, crude.

Oiticica oil.

Olive oil.

Olives (green), pitted or unpitted, or stuffed, in bulk.

Opium, crude.

Oranges, mandarin, canned.

Petroleum, crude oil, unfinished oils, and finished products.

Pine needle oil.

Pineapple, canned.
Platinum and related group metals, refined, as sponge, powder, ingots, or cast bars.

Pyrethrum flowers.

Quartz crystals.

Quebracho.

Quinidine.

Quinine.

Rabbit fur felt.

Radium salts, source and special nuclear materials.

Rosettes.

Rubber, crude and latex.

Rutile.

Santonin, crude.

Secretin.

Shellac.

Silk, raw and unmanufactured.

Spare and replacement parts for equipment of foreign manufacture, and for which domestic parts

are not available.

Spices and herbs, in bulk.

Sugars, raw.

Swords and scabbards.

Talc, block, steatite.

Tantalum.

Tapioca flour and cassava.

Tartar, crude; tartaric acid and cream of tartar in bulk.

Tea in bulk.

Thread, metallic (gold).

Thyme oil.

Tin in bars, blocks, and pigs.
Triprolidine hydrochloride.

Tungsten.

Vanilla beans.

Venom, cobra.

Water chestnuts.

Wax, carnauba.

Wire glass.

Woods; logs, veneer, and lumber of the following species: Alaskan yellow cedar, angelique, balsa,

ekki, greenheart, lignum vitae, mahogany, and teak.

Yarn, 50 Denier rayon.

Yeast, active dry and instant active dry.

(b) This list will be published in the Federal Register for public comment no less frequently than

once every five years. Unsolicited recommendations for deletions from this list may be submitted at

any time and should provide sufficient data and rationale to permit evaluation (see 1.502).

25.105 Critical components and critical items.

(a) The following is a list of articles that have been determined to be a critical component or critical

item and their respective preference factor(s).

(1)-(2) [Reserved]

(b) The list of articles and preference factors in paragraph (a) of this section will be published in the

Federal Register for public comment no less frequently than once every 4 years. Unsolicited

recommendations for deletions from this list may be submitted at any time and should provide

sufficient data and rationale to permit evaluation ( see 1.502).

(c) For determining reasonableness of cost for domestic end products that contain critical

components or are critical items ( see 25.106(c)).

25.106 Determining reasonableness of cost.

(a) The contracting officer-

(1) Must use the evaluation factors in paragraphs (b) and (c) of this section unless the head of the

agency makes a written determination that the use of higher factors is more appropriate. If the

determination applies to all agency acquisitions, the agency evaluation factors must be published in

agency regulations; and

(2) Must not apply evaluation factors to offers of eligible products if the acquisition is subject to a

trade agreement under subpart 25.4.
(b) For end products that are not critical items and do not contain critical components.

(1)

(i) If there is a domestic offer that is not the low offer, and the restrictions of the Buy American

statute apply to the low offer, the contracting officer must determine the reasonableness of the cost

of the domestic offer by adding to the price of the low offer, inclusive of duty—

(A) 20 percent, if the lowest domestic offer is from a large business concern; or

(B) 30 percent, if the lowest domestic offer is from a small business concern. The contracting officer

must use this factor, or another factor established in agency regulations, in small business set-asides

if the low offer is from a small business concern offering the product of a small business concern

that is not a domestic end product (see subpart 19.5).

(ii) The price of the domestic offer is reasonable if it does not exceed the evaluated price of the low

offer after addition of the appropriate evaluation factor in accordance with paragraph (a) or (b)(1)(i)

of this section. See evaluation procedures at subpart 25.5.

(2)

(i) For end products that are not COTS items and do 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 offer or there is no domestic offer received, and

the low offer is for a foreign end product that does not exceed 55 percent domestic content, the

contracting officer shall—

(A) Treat the lowest offer of a foreign end product 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

paragraph (b)(1)(i) of this section to the low offer.

(ii) The price of the lowest offer of a foreign end product that exceeds 55 percent domestic content is

reasonable if it does not exceed the evaluated price of the low offer after addition of the appropriate

evaluation factor in accordance with paragraph (a) or (b)(1)(i) of this section. See evaluation

procedures at subpart 25.5.

(iii) The procedures in this paragraph (b)(2) will no longer apply as of January 1, 2030.

(c) For end products that are critical items or contain critical components.

(1)

(i) If there is a domestic offer that is not the low offer, and the restrictions of the Buy American

statute apply to the low offer, the contracting officer shall determine the reasonableness of the cost

of the domestic offer by adding to the price of the low offer, inclusive of duty—

(A) 20 percent, plus the additional preference factor identified for the critical item or end product

containing critical components listed at section 25.105, if the lowest domestic offer is from a large

business concern; or
(B) 30 percent, plus the additional preference factor identified for the critical item or end product

containing critical components listed at section 25.105, if the lowest domestic offer is from a small

business concern. The contracting officer shall use this factor, or another factor established in

agency regulations, in small business set-asides if the low offer is from a small business concern

offering the product of a small business concern that is not a domestic end product (see subpart 

19.5).

(ii) The price of the domestic offer is reasonable if it does not exceed the evaluated price of the low

offer after addition of the appropriate evaluation factor in accordance with paragraph (a) or (b) of

this section. See evaluation procedures at subpart 25.5.

(2)

(i) For end products that are not COTS items and do not consist wholly or predominantly of iron or

steel or a combination of both, if the procedures in paragraph (c)(1)(ii) of this section result in an

unreasonable cost determination for the domestic offer or there is no domestic offer received, and

the low offer is for a foreign end product that does not exceed 55 percent domestic content, the

contracting officer shall—

(A) Treat the lowest offer of a foreign end product 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

paragraph (c)(1) of this section to the low offer.

(ii) The price of the lowest offer of a foreign end product that exceeds 55 percent domestic content is

reasonable if it does not exceed the evaluated price of the low offer after addition of the appropriate

evaluation factor in accordance with paragraph (a) or (b) of this section. See evaluation procedures

at subpart 25.5.

(iii) The procedures in this paragraph (c)(2) will no longer apply as of January 1, 2030.

Subpart 25.2 - Buy American-Construction Materials

25.200 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.

Subpart 25.3 - Contracts Performed Outside the United

States

25.301 Contractor personnel in a designated operational area or supporting a

diplomatic or consular mission outside the United States.

25.301-1 Scope.

(a) This section applies to contracts requiring contractor personnel to perform outside the United

States-

(1) In a designated operational area during-

(i) Contingency operations;

(ii) Humanitarian or peacekeeping operations; or

(iii) Other military operations or military exercises, when designated by the combatant commander;

or

(2) When supporting a diplomatic or consular mission-

(i) That has been designated by the Department of State as a danger pay post (see

https://aoprals.state.gov/); or

(ii) That the contracting officer determines is a post at which application of the clause at FAR

52.225-19, Contractor Personnel in a Designated Operational Area or Supporting a Diplomatic or

Consular Mission outside the United States, is appropriate.

(b) Any of the types of operations listed in paragraph (a)(1) of this section may include stability

operations such as-

(1) Establishment or maintenance of a safe and secure environment; or
(2) Provision of emergency infrastructure reconstruction, humanitarian relief, or essential

governmental services (until feasible to transition to local government).

(c) This section does not apply to personal services contracts (see FAR 37.104), unless specified

otherwise in agency procedures.

25.301-2 Government support.

(a) Generally, contractors are responsible for providing their own logistical and security support,

including logistical and security support for their employees. The agency shall provide logistical or

security support only when the appropriate agency official, in accordance with agency guidance,

determines that-

(1) Such Government support is available and is needed to ensure continuation of essential

contractor services; and

(2) The contractor cannot obtain adequate support from other sources at a reasonable cost.

(b) The contracting officer shall specify in the contract, and in the solicitation if possible, the exact

support to be provided, and whether this support is provided on a reimbursable basis, citing the

authority for the reimbursement.

25.301-3 Weapons.

The contracting officer shall follow agency procedures and the weapons policy established by the

combatant commander or the chief of mission when authorizing contractor personnel to carry

weapons (see paragraph (i) of the clause at 52.225-19, Contractor Personnel in a Designated

Operational Area or Supporting a Diplomatic or Consular Mission outside the United States).

25.301-4 Contract clause.

Insert the clause at 52.225-19, Contractor Personnel in a Designated Operational Area or Supporting

a Diplomatic or Consular Mission outside the United States, in solicitations and contracts, other than

personal service contracts with individuals, that will require contractor personnel to perform outside

the United States—

(a) In a designated operational area during–

(1) Contingency operations;

(2) Humanitarian or peacekeeping operations; or

(3) Other military operations or military exercises, when designated by the combatant commander;

or

(b) When supporting a diplomatic or consular mission–

(1) That has been designated by the Department of State as a danger pay post (see
https://aoprals.state.gov/); or

(2) That the contracting officer determines is a post at which application of the clause FAR

52.225-19, Contractor Personnel in a Designated Operational Area or Supporting a Diplomatic or

Consular Mission outside the United States, is appropriate.

25.302 Contractors performing private security functions outside the United

States.

25.302-1 Scope.

This section prescribes policy for implementing section 862 of the National Defense Authorization

Act (NDAA) for Fiscal Year (FY) 2008 (Pub. L. 110-181), as amended by section 853 of the NDAA for

FY 2009 (Pub. L. 110-417), and sections 831 and 832 of the NDAA for FY 2011 (Pub. L. 111-383) (see

10 U.S.C. Subtitle A, Part V, Subpart G Note).

25.302-2 Definitions.

As used in this sectionArea of combat operations means an area of operations designated as such by the Secretary of

Defense when enhanced coordination of contractors performing private security functions working

for Government agencies is required.

Other significant military operations means activities, other than combat operations, as part of a

contingency operation outside the United States that is carried out by United States Armed Forces

in an uncontrolled or unpredictable high-threat environment where personnel performing security

functions may be called upon to use deadly force (see 25.302-3(a)(2)).

Private security functions means activities engaged in by a contractor, as follows-

(1) Guarding of personnel, facilities, designated sites, or property of a Federal agency, the

contractor or subcontractor, or a third party; or

(2) Any other activity for which personnel are required to carry weapons in the performance of their

duties in accordance with the terms of the contract.

25.302-3 Applicability.

(a) This section applies to contracts that require performance outside the United States-

(1) In an area of combat operations as designated by the Secretary of Defense; or

(2) In an area of other significant military operations as designated by the Secretary of Defense, and

only upon agreement of the Secretary of Defense and the Secretary of State.

(b) These designations can be found at
http://www.acq.osd.mil/dpap/pacc/cc/designated_areas_of_other_significant_military_operations.html

and http://www.acq.osd.mil/dpap/pacc/cc/designated_areas_of_combat_operations.html.

(c) When the applicability requirements of this subsection are met, contractors and subcontractors

must comply with 32 CFR part 159, whether the contract is for the performance of private security

functions as a primary deliverable or the provision of private security functions is ancillary to the

stated deliverables.

(d) The requirements of section 25.302 shall not apply to-

(1) Contracts entered into by elements of the intelligence community in support of intelligence

activities; or

(2) Temporary arrangements entered into on a non-DoD contract for the performance of private

security functions by individual indigenous personnel not affiliated with a local or expatriate security

company. These temporary arrangements must still comply with local law.

25.302-4 Policy.

(a) General.

(1) The policy, responsibilities, procedures, accountability, training, equipping, and conduct of

personnel performing private security functions in designated areas are addressed at 32 CFR part

159, entitled "Private Security Contractors Operating in Contingency Operations". Contractor

responsibilities include ensuring that employees are aware of, and comply with, relevant orders,

directives, and instructions; keeping appropriate personnel records; accounting for weapons;

registering and identifying armored vehicles, helicopters, and other military vehicles; and reporting

specified incidents in which personnel performing private security functions under a contract are

involved.

(2) In addition, contractors are required to fully cooperate with any Government-authorized

investigation into incidents reported pursuant to paragraph (c)(3) of the clause at 52.225-26,

Contractors Performing Private Security Functions Outside the United States, by providing access to

employees performing private security functions and relevant information in the possession of the

contractor regarding the incident concerned.

(b) Implementing guidance. In accordance with 32 CFR part 159-

(1) Geographic combatant commanders will provide DoD contractors performing private security

functions with guidance and procedures for the operational environment in their area of

responsibility; and

(2) In a designated area of combat operations, or areas of other significant military operations, as

designated by the Secretary of Defense and only upon agreement of the Secretary of Defense and

the Secretary of State, the relevant Chief of Mission will provide implementing instructions for nonDoD contractors performing private security functions and their personnel consistent with the

standards set forth by the geographic combatant commander. In accordance with 32 CFR 159.4(c),

the Chief of Mission has the option of instructing non-DoD contractors performing private security

functions and their personnel to follow the guidance and procedures of the geographic combatant

commander and/or a sub-unified commander or joint force commander where specifically authorized
by the combatant commander to do so and notice of that authorization is provided to non-DoD

agencies.

25.302-5 Remedies.

(a) In addition to other remedies available to the Government-

(1) The contracting officer may direct the contractor, at its own expense, to remove and replace any

contractor or subcontractor personnel performing private security functions who fail to comply with

or violate applicable requirements. Such action may be taken at the Government's discretion without

prejudice to its rights under any other contract provision, e.g., termination for default;

(2) The contracting officer shall include the contractor’s failure to comply with the requirements of

this section in appropriate databases of past performance and consider any such failure in any

responsibility determination or evaluation of past performance; and

(3) In the case of award-fee contracts, the contracting officer shall consider a contractor’s failure to

comply with the requirements of this subsection in the evaluation of the contractor’s performance

during the relevant evaluation period, and may treat such failure as a basis for reducing or denying

award fees for such period or for recovering all or part of award fees previously paid for such period.

(b) If the performance failures are severe, prolonged, or repeated, the contracting officer shall refer

the matter to the appropriate suspending and debarring official.

25.302-6 Contract clause.

(a) Use the clause at 52.225-26, Contractors Performing Private Security Functions Outside the

United States, in solicitations and contracts for performance outside the United States in an area of-

(1) Combat operations, as designated by the Secretary of Defense; or

(2) Other significant military operations, as designated by the Secretary of Defense and only upon

agreement of the Secretary of Defense and the Secretary of State.

(b) The clause is not required to be used for-

(1) Contracts entered into by elements of the intelligence community in support of intelligence

activities; or

(2) Temporary arrangements entered into by non-DoD contractors for the performance of private

security functions by individual indigenous personnel not affiliated with a local or expatriate security

company.

Subpart 25.4 - Trade Agreements

25.400 Scope of subpart.
(a) This subpart provides policies and procedures applicable to acquisitions that are covered by-

(1) The World Trade Organization Government Procurement Agreement (WTO GPA), as approved by

Congress in the Uruguay Round Agreements Act (Public Law 103-465);

(2) Free Trade Agreements (FTA), consisting of-

(i) USMCA (United States-Mexico-Canada Agreement, as approved by Congress in the United StatesMexico-Canada Agreement Implementation Act (Government Procurement Agreement applicable

only to the United States and Mexico) (Pub. L. 116-113) (19 U.S.C. chapter 29 (sections 4501-4732));

(ii) Chile FTA (the United States-Chile Free Trade Agreement, as approved by Congress in the

United States-Chile Free Trade Agreement Implementation Act of 1993 (Pub. L. 108-77) (19 U.S.C.

3805 note));

(iii) Singapore FTA (the United States-Singapore Free Trade Agreement, as approved by Congress in

the United States-Singapore Free Trade Agreement Implementation Act (Pub. L. 108-78) (19 U.S.C.

3805 note));

(iv) Australia FTA (the United States-Australia Free Trade Agreement, as approved by Congress in

the United States-Australia Free Trade Agreement Implementation Act (Pub. L. 108-286) (19 U.S.C.

3805 note));

(v) Morocco FTA (The United States-Morocco Free Trade Agreement, as approved by Congress in

the United States-Morocco Free Trade Agreement Implementation Act (Pub. L. 108-302) (19 U.S.C.

3805 note));

(vi) CAFTA-DR (The Dominican Republic-Central America-United States Free Trade Agreement, as

approved by Congress in the Dominican Republic-Central America-United States Free Trade

Agreement Implementation Act (Pub. L. 109-53) (19 U.S.C. 4001 note));

(vii) Bahrain FTA (the United States-Bahrain Free Trade Agreement, as approved by Congress in the

United States-Bahrain Free Trade Agreement Implementation Act (Pub. L. 109-169) (19 U.S.C. 3805

note));

(viii) Oman FTA (the United States-Oman Free Trade Agreement, as approved by Congress in the

United States-Oman Free Trade Agreement Implementation Act (Pub. L. 109-283) (19 U.S.C. 3805

note));

(ix) Peru FTA (the United States-Peru Trade Promotion Agreement, as approved by Congress in the

United States-Peru Trade Promotion Agreement Implementation Act (Pub. L. 110-138) (19 U.S.C.

3805 note));

(x) Korea FTA (the United States–Korea Free Trade Agreement Implementation Act (Pub. L. 112-41)

(19 U.S.C. 3805));

(xi) Colombia FTA (the United States–Colombia Trade Promotion Agreement Implementation Act

(Pub. L. 112-42) (19 U.S.C. 3805 note)); and

(xii) Panama FTA (the United States-Panama Trade Promotion Agreement Implementation Act (Pub.

L. 112-43) (19 U.S.C. 3805 note));

(3) The least developed country designation made by the U.S. Trade Representative, pursuant to the
Trade Agreements Act (19 U.S.C. 2511(b)(4)), in acquisitions covered by the WTO GPA;

(4) The Caribbean Basin Trade Initiative (CBTI) (determination of the U.S. Trade Representative that

end products or construction material granted duty-free entry from countries designated as

beneficiaries under the Caribbean Basin Economic Recovery Act (19 U.S.C. 2701, et seq.), with the

exception of Panama, must be treated as eligible products in acquisitions covered by the WTO GPA);

(5) The Israeli Trade Act (the U.S.-Israel Free Trade Area Agreement, as approved by Congress in

the United States-Israel Free Trade Area Implementation Act of 1985 (19 U.S.C. 2112 note)); or

(6) The Agreement on Trade in Civil Aircraft (U.S. Trade Representative waiver of the Buy American

statute for signatories of the Agreement on Trade in Civil Aircraft, as implemented in the Trade

Agreements Act of 1979 (19 U.S.C. 2513)).

(b) For application of the trade agreements that are unique to individual agencies, see agency

regulations.

25.401 Exceptions.

(a) This subpart does not apply to-

(1) Acquisitions set aside for small businesses;

(2) Acquisitions of arms, ammunition, or war materials, or purchases indispensable for national

security or for national defense purposes;

(3) Acquisitions of end products for resale;

(4) Acquisitions from Federal Prison Industries, Inc., under subpart 8.6, and acquisitions under

subpart 8.7, Acquisition from Nonprofit Agencies Employing People Who Are Blind or Severely

Disabled;

(5) Other acquisitions not using full and open competition, if authorized by subpart 6.2 or 6.3, when

the limitation of competition would preclude use of the procedures of this subpart; or sole source

acquisitions justified in accordance with 13.501(a); and

(6) Goods and services specifically excluded under individual trade agreements, such as exceptions

negotiated by the U.S. Trade Representative for particular agencies. See the agency supplementary

regulations.

(b) In the World Trade Organization Government Procurement Agreement (WTO GPA) and each FTA,

there is a U.S. schedule that lists services that are excluded from that agreement in acquisitions by

the United States. Acquisitions of the following services are excluded from coverage by the U.S.

schedule of the WTO GPA or an FTA as indicated in this table:
The Service

(Federal Service Codes from

the Federal Procurement

Data System Product/Service

Code Manual are indicated in

paren-theses for some

services.)

WTO

GPA

and

KOREA

FTA

Bahrain

FTA,

CAFTA-DR,

Chile FTA,

Columbia

FTA,

USMCA,

Oman FTA,

Panama

FTA, and

Peru FTA

Singapore

FTA

Australia

and

Morocco

FTA

(1)

All services purchased in

support of military services

overseas.

X X X X

(2)

(i) Automatic data processing

(ADP) telecommunications

and transmission services

(D304), except enhanced

(i.e., value-added)

telecommunications services.

X X

(ii) ADP teleprocessing and

timesharing services (D305),

telecommunications network

management services

(D316), automated news

services, data services or

other information services

(D317), and other ADP and

telecommunications services

(D399).

X X

(iii) Basic

telecommunications network

services ( i.e., voice

telephone services, packetswitched data transmission

services, circuit-switched

data transmission services,

telex services, facsimile

services, and private leased

circuit services, but not

information services, as

defined in 47 U.S.C.153(24)).

* * X X

(3) Dredging. X X X X
(4)

(i) Operation and

management contracts of

certain Government or

privately owned facilities

used for Government

purposes, including

Federally Funded Research

and Development Centers.

X X

(ii) Operation of all

Department of Defense,

Department of Energy, or the

National Aeronautics and

Space Administration

facilities; and all

Government-owned research

and development facilities or

Government-owned

environmental laboratories.

** X ** X

(5) Research and development. X X X X

(6)

Transportation services

(including launching

services, but not including

travel agent services).

X X X X

(7) Utility services. X X X X

(8)

Maintenance, repair,

modification, rebuilding and

installation of equipment

related to ships (J019).

X X

(9) Nonnuclear ship repair

(J998). X X

* Note1. Acquisitions of the services listed at (2)(iii) of this table are a subset of the excluded

services at (2)(i) and (ii), and are therefore not covered under the WTO GPA.

** Note2. Acquisitions of the services listed at (4)(ii) of this table are a subset of the excluded

services at (4)(i), and are therefore not covered under the WTO GPA.

25.402 General.

(a)
(1) The Trade Agreements Act (19 U.S.C.2501, et seq.) provides the authority for the President to

waive the Buy American statute and other discriminatory provisions for eligible products from

countries that have signed an international trade agreement with the United States, or that meet

certain other criteria, such as being a least developed country. The President has delegated this

waiver authority to the U.S. Trade Representative. In acquisitions covered by the WTO GPA, Free

Trade Agreements, or the Israeli Trade Act, the U.S. Trade Representative has waived the Buy

American statute and other discriminatory provisions for eligible products. Offers of eligible

products receive equal consideration with domestic offers.

(2) The contracting officer shall determine the origin of services by the country in which the firm

providing the services is established. See subpart 25.5 for evaluation procedures for supply

contracts covered by trade agreements.

(b) The value of the acquisition is a determining factor in the applicability of trade agreements. Most

of these dollar thresholds are subject to revision by the U.S. Trade Representative approximately

every 2 years. The various thresholds are summarized as follows:

Table 1 to Paragraph (b)

Trade Agreement

Supply Contract

(equal to or

exceeding)

Service Contract

(equal to or

exceeding)

Construction

Contract (equal to or

exceeding)

WTO GPA $174,000 $174,000 $6,708,000

FTAs

Australia FTA 102,280 102,280 6,708,000

Bahrain FTA 174,000 174,000 13,296,489

CAFTA-DR (Costa Rica,

Dominican Republic, El

Salvador, Guatemala,

Honduras, and

Nicaragua)

102,280 102,280 6,708,000

Chile FTA 102,280 102,280 6,708,000

Colombia FTA 102,280 102,280 6,708,000

Korea FTA 100,000 100,000 6,708,000

Morocco FTA 174,000 174,000 6,708,000

USMCA
-Mexico 102,280 102,280 13,296,489

Oman FTA 174,000 174,000 13,296,489

Panama FTA 174,000 174,000 6,708,000

Peru FTA 174,000 174,000 6,708,000

Singapore FTA 102,280 102,280 6,708,000

Israeli Trade Act 50,000 - -

25.403 World Trade Organization Government Procurement Agreement and

Free Trade Agreements.

(a) Eligible products from WTO GPA and FTA countries are entitled to the nondiscriminatory

treatment specified in 25.402(a)(1). The WTO GPA and FTAs specify procurement procedures

designed to ensure fairness (see 25.408).

(b) Thresholds.

(1) To determine whether the acquisition of products by lease, rental, or lease-purchase contract

(including lease-to-ownership, or lease-with-option-to purchase) is covered by the WTO GPA or an

FTA, calculate the estimated acquisition value as follows:

(i) If a fixed-term contract of 12 months or less is contemplated, use the total estimated value of the

acquisition.

(ii) If a fixed-term contract of more than 12 months is contemplated, use the total estimated value of

the acquisition plus the estimated residual value of the leased equipment at the conclusion of the

contemplated term of the contract.

(iii) If an indefinite-term contract is contemplated, use the estimated monthly payment multiplied by

the total number of months that ordering would be possible under the proposed contract, i.e., the

initial ordering period plus any optional ordering periods.

(iv) If there is any doubt as to the contemplated term of the contract, use the estimated monthly

payment multiplied by 48.

(2) The estimated value includes the value of all options.

(3) If, in any 12-month period, recurring or multiple awards for the same type of product or products

are anticipated, use the total estimated value of these projected awards to determine whether the

WTO GPA or an FTA applies. Do not divide any acquisition with the intent of reducing the estimated

value of the acquisition below the dollar threshold of the WTO GPA or an FTA.
(c) Purchase restriction.

(1) Under the Trade Agreements Act (19 U.S.C. 2512), in acquisitions covered by the WTO GPA,

acquire only U.S.-made or designated country end products or U.S. or designated country services,

unless offers for such end products or services are either not received or are insufficient to fulfill the

requirements. This purchase restriction does not apply below the WTO GPA threshold for supplies

and services, even if the acquisition is covered by an FTA.

(2) This restriction does not apply to purchases of supplies by the Department of Defense from a

country with which it has entered into a reciprocal agreement, as provided in departmental

regulations.

25.404 Least developed countries.

For acquisitions covered by the WTO GPA, least developed country end products, construction

material, and services must be treated as eligible products.

25.405 Caribbean Basin Trade Initiative.

Under the Caribbean Basin Trade Initiative, the United States Trade Representative has determined

that, for acquisitions covered by the WTO GPA, Caribbean Basin country end products, construction

material, and services must be treated as eligible products. In accordance with Section 201 (a)(3) of

the Dominican Republic-Central America-United States Free Trade Implementation Act (Pub. L.

109-53) (19 U.S.C. 4031), when the CAFTA-DR agreement enters into force with respect to a

country, that country is no longer designated as a beneficiary country for purposes of the Caribbean

Basin Economic Recovery Act, and is therefore no longer included in the definition of "Caribbean

Basin country" for purposes of the Caribbean Basin Trade Initiative.

25.406 Israeli Trade Act.

Acquisitions of supplies by most agencies are covered by the Israeli Trade Act, if the estimated value

of the acquisition is $50,000 or more but does not exceed the WTO GPA threshold for supplies (see

25.402(b)). Agencies other than the Department of Defense, the Department of Energy, the

Department of Transportation, the Bureau of Reclamation of the Department of the Interior, the

Federal Housing Finance Board, and the Office of Thrift Supervision must evaluate offers of Israeli

end products without regard to the restrictions of the Buy American statute. The Israeli Trade Act

does not prohibit the purchase of other foreign end products.

25.407 Agreement on Trade in Civil Aircraft.

Under the authority of Section 303 of the Trade Agreements Act, the U.S. Trade Representative has

waived the Buy American statute for civil aircraft and related articles that meet the substantial

transformation test of the Trade Agreements Act, from countries that are parties to the Agreement

on Trade in Civil Aircraft. Those countries are Albania, Austria, Belgium, Bulgaria, Canada, Croatia,

Cyprus, Czech Republic, Denmark, Egypt, Estonia, Finland, France, Georgia, Germany, Greece,

Hungary, Ireland, Italy, Japan, Latvia, Lithuania, Luxembourg, Macao China, Malta, Montenegro, the
Netherlands, Norway, Poland, Portugal, Romania, Slovakia, Slovenia, Spain, Sweden, Switzerland,

Taiwan (Chinese Taipei), and the United Kingdom.

25.408 Procedures.

(a) If the WTO GPA or an FTA applies (see 25.401), the contracting officer must-

(1) Comply with the requirements of 5.203, Publicizing and response time;

(2) Comply with the requirements of 5.207, Preparation and transmittal of synopses;

(3) Not include technical requirements in solicitations solely to preclude the acquisition of eligible

products;

(4) Specify in solicitations that offerors must submit offers in the English language and in U.S.

dollars (see 52.214-34, Submission of Offers in the English Language, and 52.214-35, Submission of

Offers in U.S. Currency, or paragraph (c)(5) of 52.215-1, Instruction to Offerors-Competitive

Acquisitions); and

(5) Provide unsuccessful offerors from WTO GPA or FTA countries notice in accordance with

14.409-1 or 15.503.

(b) See subpart 25.5 for evaluation procedures and examples.

Subpart 25.5 - Evaluating Foreign Offers-Supply Contracts

25.501 General.

The contracting officer-

(a) Must apply the evaluation procedures of this subpart to each line item of an offer unless either

the offer or the solicitation specifies evaluation on a group basis (see 25.503);

(b) May rely on the offeror’s certification of end product origin when evaluating a foreign offer;

(c) Must identify and reject offers of end products that are prohibited in accordance with subpart 

25.7; and

(d) When trade agreements are involved, must not use the Buy American statute evaluation factors

prescribed in this subpart to provide a preference for one foreign offer over another foreign offer.

25.502 Application.

(a) Unless otherwise specified in agency regulations, perform the following steps in the order

presented:

(1) Eliminate all offers or offerors that are unacceptable for reasons other than price; e.g.,
nonresponsive, debarred or suspended, or a prohibited source (see subpart 25.7).

(2) Rank the remaining offers by price.

(3) If the solicitation specifies award on the basis of factors in addition to cost or price, apply the

evaluation factors as specified in this section and use the evaluated cost or price in determining the

offer that represents the best value to the Government.

(b) For acquisitions covered by the WTO GPA (see subpart 25.4)-

(1) Consider only offers of U.S.-made or designated country end products, unless no offers of such

end products were received;

(2) If the agency gives the same consideration given eligible offers to offers of U.S.-made end

products that are not domestic end products, award on the low offer. Otherwise, evaluate in

accordance with agency procedures; and

(3) If there were no offers of U.S.-made or designated country end products, make a nonavailability

determination (see 25.103(b)(2)) and award on the low offer (see 25.403(c)).

(c) For acquisitions not covered by the WTO GPA, but subject to the Buy American statute (an FTA

or the Israeli Trade Act also may apply), the following applies:

(1) If the low offer is a domestic offer or an eligible offer under an FTA or the Israeli Trade Act,

award on that offer.

(2) If the low offer is a noneligible offer and there were no domestic offers (see 25.103(b)(3)), award

on the low offer. The procedures at 25.106(b)(2) and 25.106(c)(2) do not apply.

(3) If the low offer is a noneligible offer and there is an eligible offer that is lower than the lowest

domestic offer, award on the low offer. The procedures at 25.106(b)(2) and 25.106(c)(2) do not

apply.

(4) Otherwise, apply the appropriate evaluation factor provided in 25.106 to the low offer. The

procedures at 25.106(b)(2) and 25.106(c)(2) do not apply.

(d) Ties.

(1) If application of an evaluation factor results in a tie between a domestic offer and a foreign offer,

award on the domestic offer.

(2) If no evaluation preference was applied (i.e., offers afforded nondiscriminatory treatment under

the Buy American statute), resolve ties between domestic and foreign offers by a witnessed drawing

of lots by an impartial individual.

(3) Resolve ties between foreign offers from small business concerns (under the Buy American

statute, a small business offering a manufactured article that does not meet the definition of

"domestic end product" is a foreign offer) or foreign offers from a small business concern and a large

business concern in accordance with 14.408-6(a).
25.503 Group offers.

(a) If the solicitation or an offer specifies that award can be made only on a group of line items or on

all line items contained in the solicitation or offer, reject the offer-

(1) If any part of the award would consist of prohibited end products (see subpart 25.7); or

(2) If the acquisition is covered by the WTO GPA and any part of the offer consists of items restricted

in accordance with 25.403(c).

(b) If an offer restricts award to a group of line items or to all line items contained in the offer,

determine for each line item whether to apply an evaluation factor (see 25.504-4, Example 1).

(1) First, evaluate offers that do not specify an award restriction on a line item basis in accordance

with 25.502, determining a tentative award pattern by selecting for each line item the offer with the

lowest evaluated price.

(2) Evaluate an offer that specifies an award restriction against the offered prices of the tentative

award pattern, applying the appropriate evaluation factor on a line item basis.

(3) Compute the total evaluated price for the tentative award pattern and the offer that specified an

award restriction.

(4) Unless the total evaluated price of the offer that specified an award restriction is less than the

total evaluated price of the tentative award pattern, award based on the tentative award pattern.

(c) If the solicitation specifies that award will be made only on a group of line items or all line items

contained in the solicitation, determine the category of end products on the basis of each line item,

but determine whether to apply an evaluation factor on the basis of the group of items (see 25.504-4,

Example 2).

(1) If the proposed price of domestic end products exceeds 50 percent of the total proposed price of

the group, evaluate the entire group as a domestic offer. Evaluate all other groups as foreign offers.

(2) For foreign offers, if the proposed price of domestic end products and eligible products exceeds

50 percent of the total proposed price of the group, evaluate the entire group as an eligible offer.

(3) Apply the evaluation factor to the entire group in accordance with 25.502.

(d) If no trade agreement applies to a solicitation and the solicitation specifies that award will be

made only on a group of line items or all line items contained in the solicitation, determine the

category of end products ( i.e., domestic or foreign) on the basis of each line item, but determine

whether to apply an evaluation factor on the basis of the group of items ( see 25.504-4(c), Example

3).

(1) If the proposed price of domestic end products exceeds 50 percent of the total proposed price of

the group, evaluate the entire group as a domestic offer. Evaluate all other groups as foreign offers.

(2) Apply the evaluation factor to the entire group in accordance with 25.502, except where

25.502(c)(4) applies and the evaluated price of the low offer remains less than the lowest domestic

offer. Where the evaluated price of the low offer remains less than the lowest domestic offer, treat as

a domestic offer any group where the proposed price of end products with a domestic content of at
least 55 percent exceeds 50 percent of the total proposed price of the group.

(3) Apply the evaluation factor to the entire group in accordance with 25.502(c)(4).

25.504 Evaluation examples.

The following examples illustrate the application of the evaluation procedures in 25.502 and 25.503.

The examples assume that the contracting officer has eliminated all offers that are unacceptable for

reasons other than price or a trade agreement (see 25.502(a)(1)). The evaluation factor may change

as provided in agency regulations.

25.504-1 Buy American statute.

(a)

(1) Example 1.

Offer A $16,000 Domestic end product, small business

Offer B $15,700 Domestic end product, small business

Offer C $10,100 U.S.-made end product (not domestic), small business

(2) Analysis: This acquisition is for end products for use in the United States and is set aside for

small business concerns. The Buy American statute applies. Since the acquisition value is less than

$50,000 and the acquisition is set aside, none of the trade agreements apply. Perform the steps in

25.502(a). Offer C is of 50 percent domestic content, therefore Offer C is evaluated as a foreign end

product, because it is the product of a small business but is not a domestic end product ( see

25.502(c)(4)). Since Offer B is a domestic offer, apply the 30 percent factor to Offer C ( see

25.106(b)(2)). The resulting evaluated price of $13,130 remains lower than Offer B. The cost of Offer

B is therefore unreasonable ( see 25.106(b)(1)(ii)). The 25.106(b)(2) procedures do not apply. Award

on Offer C at $10,100 ( see 25.502(c)(4)(i)).

(b)

(1) Example 2.

Offer A $11,000 Domestic end product, small business

Offer B $10,700 Domestic end product, small business

Offer C $10,200 U.S.-made end product (not domestic), small business
(2) Analysis: This acquisition is for end products for use in the United States and is set aside for

small business concerns. The Buy American statute applies. Perform the steps in 25.502(a). Offer C

is evaluated as a foreign end product because it is the product of a small business but is not a

domestic end product (see 25.502(c)(4)). After applying the 30 percent factor, the evaluated price of

Offer C is $13,260. Award on Offer B at $10,700 (see 25.502(c)(4)(ii)).

(c)

(1) Example 3.

Offer A $14,000 Domestic end product (complies with the required domestic content),

small business.

Offer B 12,500 U.S.-made end product (not domestic, exceeds 55% domestic content),

small business.

Offer C 10,100 U.S.-made end product (not domestic, with less than 55% domestic

content), small business.

(2) Analysis. This acquisition is for end products for use in the United States and is set aside for

small business concerns. The Buy American statute applies. Since the acquisition value is less than

$50,000 and the acquisition is set aside, none of the trade agreements apply. Perform the steps in

25.502(a). Offers B and C are initially evaluated as foreign end products, because they are the

products of small businesses but are not domestic end products ( see 25.502(c)(4)). Offer C is the

low offer. After applying the 30 percent factor, the evaluated price of Offer C is $13,130. The

resulting evaluated price of $13,130 remains lower than Offer A. The cost of Offer A is therefore

unreasonable. Offer B is then treated as a domestic offer, because it is for a U.S.-made end product

that exceeds 55 percent domestic content ( see 25.106(b)(2)). Offer B is determined reasonable

because it is lower than the $13,130 evaluated price of Offer C. Award on Offer B at $12,500.

25.504-2 WTO GPA/Caribbean Basin Trade Initiative/FTAs.

Example 1.

Offer A $304,000 U.S.-made end product (not domestic)

Offer B $303,000 U.S.-made end product (domestic), small business

Offer C $300,000 Eligible product

Offer D $295,000 Noneligible product (not U.S.-made)

Analysis: Eliminate Offer D because the acquisition is covered by the WTO GPA and there is an offer
of a U.S.-made or an eligible product (see 25.502(b)(1)). If the agency gives the same consideration

given eligible offers to offers of U.S.-made end products that are not domestic offers, it is

unnecessary to determine if U.S.-made end products are domestic (large or small business). No

further analysis is necessary. Award on the low remaining offer, Offer C (see 25.502(b)(2)).

25.504-3 FTA/Israeli Trade Act.

(a) Example 1.

Offer A $105,000 Domestic end product, small business

Offer B $100,000 Eligible product

Analysis: Since the low offer is an eligible offer, award on the low offer (see 25.502(c)(1)).

(b) Example 2.

Offer A $105,000 Eligible product

Offer B $103,000 Noneligible product

Analysis: Since the acquisition is not covered by the WTO GPA, the contracting officer can consider

the noneligible offer. Since no domestic offer was received, make a nonavailability determination

and award on Offer B (see 25.502(c)(2)).

(c) Example 3.

Offer A $105,000 Domestic end product, large business

Offer B $103,000 Eligible product

Offer C $100,000 Noneligible product

Analysis: Since the acquisition is not covered by the WTO GPA, the contracting officer can consider

the noneligible offer. Because the eligible offer (Offer B) is lower than the domestic offer (Offer A),

no evaluation factor applies to the low offer (Offer C). Award on the low offer (see 25.502(c)(3)).

25.504-4 Group award basis.

(a) Example 1.
OFFERS

Item A B C

1 DO = $55,000 EL = $56,000 NEL = $50,000

2 NEL = $13,000 EL = $10,000 EL = $13,000

3 NEL = $11,500 DO = $12,000 DO = $10,000

4 NEL = $24,000 EL = $28,000 NEL = $22,000

5 DO = $18,000 NEL = $10,000 DO = $14,000

$121,500 $116,000 $109,000

Key:

DO = Domestic end product

EL = Eligible product

NEL = Noneligible product

Problem: Offeror C specifies all-or-none award. Assume all offerors are large businesses. The

acquisition is not covered by the WTO GPA.

Analysis: (see 25.503)

STEP 1: Evaluate Offers A & B before considering Offer C and determine which offer has the lowest

evaluated cost for each line item (the tentative award pattern):

Item 1: Low offer A is domestic; select A.

Item 2: Low offer B is eligible; do not apply factor; select B.

Item 3: Low offer A is noneligible and Offer B is a domestic offer. Apply a 20 percent factor to Offer

A. The evaluated price of Offer A is higher than Offer B; select B.

Item 4: Low offer A is noneligible. Since neither offer is a domestic offer, no evaluation factor

applies; select A.

Item 5: Low offer B is noneligible; apply a 20 percent factor to Offer B. Offer A is still higher than

Offer B; select B.
STEP 2: Evaluate Offer C against the tentative award pattern for Offers A and B:

OFFERS

Item Low

Offer

Tentative Award Pattern from A and

B

C

1 A DO = $ 55,000 *NEL = $60,000

2 B EL = $10,000 EL = $13,000

3 B DO = $12,000 DO = $10,000

4 A NEL = $24,000 NEL = $22,000

5 B *NEL = $12,000 DO = $14,000

TOTAL $113,000 $119,000

*Offer + 20 percent.

On a line item basis, apply a factor to any noneligible offer if the other offer for that line item is

domestic.

For Item 1, apply a factor to Offer C because Offer A is domestic and the acquisition was not covered

by the WTO GPA. The evaluated price of Offer C, Item 1, becomes $60,000 ($50,000 plus 20

percent). Apply a factor to Offer B, Item 5, because it is a noneligible product and Offer C is

domestic. The evaluated price of Offer B is $12,000 ($10,000 plus 20 percent). Evaluate the

remaining items without applying a factor.

STEP 3: The tentative unrestricted award pattern from Offers A and B is lower than the evaluated

price of Offer C. Award the combination of Offers A and B. Note that if Offer C had not specified allor-none award, award would be made on Offer C for line items 3 and 4, totaling an award of

$32,000.

(b) Example 2.

OFFERS

Item A B C

1 DO = $50,000 EL = $50,500 NEL = $50,000

2 NEL = $10,300 NEL = $10,000 EL = $10,200
OFFERS

Item A B C

3 EL = $20,400 EL = $21,000 NEL = $20,200

4 DO = $10,500 DO = $10,300 DO = $10,400

TOTAL $91,200 $91,800 $90,800

Problem: The solicitation specifies award on a group basis. Assume the Buy American statute applies

and the acquisition cannot be set aside for small business concerns. All offerors are large

businesses.

Analysis: (see 25.503(c))

STEP 1: Determine which of the offers are domestic (see 25.503(c)(1)):

Domestic [percent] Determination

A

$50,000 (Offer A1) + $10,500 (Offer A4) = $60,500

$60,500/$91,200 (Offer A Total) = 66.3% Domestic

B $10,300 (Offer B4) /$91,800 (Offer B Total) $ = 11.2% Foreign

C $10,400 (Offer C4) /$90,800 (Offer C Total) = 11.5% Foreign

STEP 2: Determine whether foreign offers are eligible or noneligible offers (see 25.503(c)(2)):

Domestic + Eligible [percent] Determination

A N/A (Both Domestic) Domestic

B

$50,500 (Offer B1) + $21,000 (Offer B3) + $10,300 (Offer B4)=

$81,800.

$81,800 /$91,800 (Offer B Total) = 89.1%

Eligible

C

$10,200 (Offer C2) + $10,400 (Offer C4) = $20,600.

$20,600/$90,800 (Offer C Total) = 22.7% Noneligible

STEP 3: Determine whether to apply an evaluation factor (see 25.503(c)(3)). The low offer (Offer C)

is a foreign offer. There is no eligible offer lower than the domestic offer. Therefore, apply the factor
to the low offer. Addition of the 20 percent factor (use 30 percent if Offer A is a small business) to

Offer C yields an evaluated price of $108,960 ($90,800 + 20 percent). Award on Offer A (see

25.502(c)(4)(ii)). Note that, if Offer A were greater than Offer B, an evaluation factor would not be

applied, and award would be on Offer C (see 25.502(c)(3)).

(c) Example 3.

OFFERS

Item A B C

1 DO = $17,800 FO

(>55%) = $16,000 FO(>55%) = $11,200

2

FO

(>55%) = $9,000 FO(>55%) = $8,500 DO = $10,200

3

FO

(>55%) = $11,200 FO(>55%) = $12,000 FO(>55%) = $11,000

4 DO = $10,000 DO = $9,000 FO

(>55%) = $6,400

Total $48,000 $45,500 $38,800.

Key:

DO = Domestic end product (complies with the required domestic content).

FO > 55% = Foreign end product with domestic content exceeding 55%.

FO < 55% = Foreign end product with domestic content of 55% or less.

Problem: The solicitation specifies award on a group basis. Assume only the Buy American statute

applies ( i.e., no trade agreements apply) and the acquisition cannot be set aside for small business

concerns. All offerors are large businesses.

Analysis: (see 25.503(d))

STEP 1: Determine which of the offers are domestic (see 25.503(d)(1)).

Domestic [percent] Determination

A

$17,800 (Offer A1) + $10,000 (Offer A4) = $27,800

$27,800/$48,000 (Offer A Total) = 58% Domestic
B $9,000 (Offer B4)/$45,500 (Offer B Total) = 19.8% Foreign

C $10,200 (Offer C2)/$38,800 (Offer C Total) = 26.3% Foreign

STEP 2: Determine which offer, domestic or foreign, is the low offer. If the low offer is a foreign

offer, apply the evaluation factor (see 25.503(d)(2)). The low offer (Offer C) is a foreign offer.

Therefore, apply the factor to the low offer. Addition of the 20 percent factor (use 30 percent if Offer

A is a small business) to Offer C yields an evaluated price of $46,560 ($38,800 + 20 percent). Offer C

remains the low offer.

STEP 3: Determine if there is a foreign offer that could be treated as a domestic offer (see

25.106(b)(2) and 25.503(d)(2)).

Amount of domestic content (percent) Determination

A N/A N/A

B

$9,000 (Offer B4)/$45,500 (Offer B Total) $ = 19.8% is

domestic

AND

$16,000 (Offer B1) + $8,500 (Offer B2) + $12,000 (Offer

B3) = $36,500

$36,500/$45,500 (Offer B Total) = 80.2% can be treated

as domestic

19.8% + 80.2% = 100% is domestic or can be treated as

domestic

Can be treated as domestic.

C

$10,200 (Offer C2)/$38,800 (Offer C Total) = 26.3% is

domestic Noneligible

STEP 4: If there is a foreign offer that could be treated as a domestic offer, compare the evaluated

price of the low offer to the price of the offer treated as domestic ( see 25.503(d)(3)). Offer B can be

treated as a domestic offer ($45,500). The evaluated price of the low offer (Offer C) is $46,560.

Award on Offer B.

Subpart 25.6 - American Recovery and Reinvestment ActBuy American statute-Construction Materials

25.600 Scope of subpart.

This subpart implements section 1605 in Division A of the American Recovery and Reinvestment Act

of 2009 (Pub. L. 111-5) (Recovery Act) with regard to manufactured construction material and the 41

U.S.C. chapter 83, Buy American (referred to in this subpart as the Buy American statute) with
regard to unmanufactured construction material. It applies to construction projects that use funds

appropriated or otherwise provided by the Recovery Act.

25.601 Definitions.

As used in this subpartDomestic 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.

Manufactured construction material means any construction material that is not unmanufactured

construction material.

Public building or public work means a building or work, the construction, prosecution, completion,

or repair of which is carried on directly or indirectly by authority of, or with funds of, a Federal

agency to serve the interest of the general public regardless of whether title thereof is in a Federal

agency (see 22.401). These buildings and works may include, without limitation, bridges, dams,

plants, highways, parkways, streets, subways, tunnels, sewers, mains, power lines, pumping

stations, heavy generators, railways, airports, terminals, docks, piers, wharves, ways, lighthouses,

buoys, jetties, breakwaters, levees, and canals, and the construction, alteration, maintenance, or

repair of such buildings and works.

Recovery Act designated country means a World Trade Organization Government Procurement

Agreement country, a Free Trade Agreement country, or a least developed country.

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.

25.602 Policy.

25.602-1 Section 1605 of the Recovery Act.

Except as provided in 25.603-
(a) None of the funds appropriated or otherwise made available by the Recovery Act may be used for

a project for the construction, alteration, maintenance, or repair of a public building or public work

unless the public building or public work is located in the United States and-

(1) All of the iron, steel, and manufactured goods used as construction material in the project are

produced or manufactured in the United States.

(i) All manufactured construction material must be manufactured in the United States.

(ii) Iron or steel components.

(A) Iron or steel components of construction material consisting wholly or predominantly of iron or

steel must be produced in the United States. This does not restrict the origin of the elements of the

iron or steel, but requires that all manufacturing processes of the iron or steel must take place in the

United States, except metallurgical processes involving refinement of steel additives.

(B) The requirement in paragraph (a)(1)(ii)(A) of this section does not apply to iron or steel

components or subcomponents in construction material that does not consist wholly or

predominantly of iron or steel.

(iii) All other components. There is no restriction on the origin or place of production or manufacture

of components or subcomponents that do not consist of iron or steel.

(iv) Examples.

(A) If a steel guardrail consists predominantly of steel, even though coated with aluminum, then the

steel would be subject to the section 1605 restriction requiring that all stages of production of the

steel occur in the United States, in addition to the requirement to manufacture the guardrail in the

United States. There would be no restrictions on the other components of the guardrail.

(B) If a wooden window frame is delivered to the site as a single construction material, there is no

restriction on any of the components, including the steel lock on the window frame; or

(2) If trade agreements apply, the manufactured construction material shall either comply with the

requirements of paragraph (a)(1) of this subsection, or be wholly the product of or be substantially

transformed in a Recovery Act designated country;

(b) Manufactured materials purchased directly by the Government and delivered to the site for

incorporation into the project shall meet the same domestic source requirements as specified for

manufactured construction material in paragraphs (a)(1) and (a)(2) of this section; and

(c) A project may include several contracts, a single contract, or one or more line items on a

contract.

25.602-2 Buy American statute

Except as provided in 25.603, use only unmanufactured construction material mined or produced in

the United States, as required by the Buy American statute or, if trade agreements apply,

unmanufactured construction material mined or produced in a designated country may also be used.
25.603 Exceptions.

(a)

(1) When one of the following exceptions applies, the contracting officer may allow the contractor to

incorporate foreign manufactured construction materials without regard to the restrictions of

section 1605 of the Recovery Act or foreign unmanufactured construction material without regard to

the restrictions of the Buy American statute:

(i) 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.

(ii) Unreasonable cost. The contracting officer concludes that the cost of domestic construction

material is unreasonable in accordance with 25.605.

(iii) Inconsistent with public interest. The head of the agency may determine that application of the

restrictions of section 1605 of the Recovery Act to a particular manufactured construction material,

or the restrictions of the Buy American statute to a particular unmanufactured construction material

would be inconsistent with the public interest.

(2) In addition, the head of the agency may determine that application of the Buy American statute

to a particular unmanufactured construction material would be impracticable.

(b) Determinations. When a determination is made, for any of the reasons stated in this section, that

certain foreign construction materials may be used-

(1) The contracting officer shall list the excepted materials in the contract; and

(2) For determinations with regard to the inapplicability of section 1605 of the Recovery Act, unless

the construction material has already been determined to be domestically nonavailable (see list at

25.104), the head of the agency shall provide a notice to the Federal Register within three business

days after the determination is made, with a copy to the Administrator for Federal Procurement

Policy and to the Recovery Accountability and Transparency Board. The notice shall include-

(i) The title "Buy American Exception under the American Recovery and Reinvestment Act of 2009";

(ii) The dollar value and brief description of the project; and

(iii) A detailed justification as to why the restriction is being waived.

(c) Acquisitions under trade agreements.

(1) For construction contracts with an estimated acquisition value of $6,708,000 or more, also see

subpart 25.4. Offers proposing the use of construction material from a designated country shall

receive equal consideration with offers proposing the use of domestic construction material.

(2) For purposes of applying section 1605 of the Recovery Act to evaluation of manufactured

construction material, designated countries do not include the Caribbean Basin Countries.
25.604 Preaward determination concerning the inapplicability of section 1605

of the Recovery Act or the Buy American statute.

(a) For any acquisition, an offeror may request from the contracting officer a determination

concerning the inapplicability of section 1605 of the Recovery Act or 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 52.225-22 or 52.225-24, 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 52.225-21 or 52.225-23, 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.

(c) Determination based on unreasonable cost of domestic construction material.

(1) Manufactured construction material. The contracting officer must compare the offered price of

the contract using foreign manufactured construction material (i.e., any construction material not

manufactured in the United States, or construction material consisting predominantly of iron or

steel and the iron or steel is not produced in the United States) to the estimated price if all domestic

manufactured construction material were used. If use of domestic manufactured construction

material would increase the overall offered price of the contract by more than 25 percent, then the

contracting officer shall determine that the cost of the domestic manufactured construction material

is unreasonable

(2) Unmanufactured construction material. The contracting officer must compare the cost of each

foreign unmanufactured construction material to the cost of domestic unmanufactured construction

material. If the cost of the domestic unmanufactured construction material exceeds the cost of the

foreign unmanufactured construction material by more than 20 percent, then the contracting officer

shall determine that the cost of the domestic unmanufactured construction material is unreasonable.

25.605 Evaluating offers of foreign construction material.

(a) If the contracting officer has determined that an exception applies because the cost of certain

domestic construction material is unreasonable, in accordance with section 25.604, then the

contracting officer shall apply evaluation factors to the offer incorporating the use of such foreign

construction material as follows:

(1) Use an evaluation factor of 25 percent, applied to the total offered price of the contract, if foreign

manufactured construction material is incorporated in the offer based on an exception for

unreasonable cost of comparable domestic construction material requested by the offeror.

(2) In addition, use an evaluation factor of 20 percent applied to the cost of foreign unmanufactured

construction material incorporated in the offer based on an exception for unreasonable cost of

comparable domestic unmanufactured construction material requested by the offeror.

(3) Total evaluated price = offered price + (.25 x offered price, if (a)(1) applies) + (.20 x cost of

foreign unmanufactured construction material, if (a)(2) applies).

(b) If the solicitation specifies award on the basis of factors in addition to cost or price, apply the

evaluation factors as specified in paragraph (a) of this section and use the evaluated price in
determining the offer that represents the best value to the Government

(c) Unless paragraph (b) applies, if two or more offers are equal in price, the contracting officer

must 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.

(d) 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.

(e) 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)(3) of 52.225-21, or

paragraph (b)(3) of 52.225-23), the contracting officer must add the excepted materials to the list in

the contract clause.

25.606 Postaward determinations.

(a) If a contractor requests a determination regarding the inapplicability of section 1605 of the

Recovery Act or 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 section 1605 of the Recovery Act or the Buy American statute made after contract

award on information required by paragraphs (c) and (d) of the applicable clause at 52.225-21 or

52.225-23 and/or other readily available information.

(c) If a determination, under 25.603(a), is made after contract award that an exception to section

1605 of the Recovery Act or 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 cost of a domestic construction

material, adequate consideration is at least the differential established in 25.605(a).

25.607 Noncompliance.

The contracting officer must-

(a) Review allegations of violations of section 1605 of the Recovery Act or Buy American statute;

(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 section 1605 of the Recovery Act or the

Buy American statute in accordance with 25.606.

(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 section 1605 of the Recovery Act or 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 section 1605 of the Recovery Act or 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 agency’s inspector general or the officer responsible for criminal investigation.

Subpart 25.7 - Prohibited Sources

25.700 Scope of subpart.

This subpart implements-

(a) Economic sanctions administered by the Office of Foreign Assets Control (OFAC) in the

Department of the Treasury prohibiting transactions involving certain countries, entities, and

individuals;

(b) The Sudan Accountability and Divestment Act of 2007 (Pub. L. 110-174) ( 50 U.S.C. 1701 note);

(c) The Iran Sanctions Act of 1996 (Iran Sanctions Act) (Pub. L. 104-172; 50 U.S.C. 1701 note),

including amendments by the Iran Freedom Support Act (Pub. L. 109-293), section 102 of the

Comprehensive Iran Sanctions, Accountability, and Divestment Act of 2010 (Pub. L. 111-195), and

Titles II and III of the Iran Threat Reduction and Syria Human Rights Act of 2012 (Pub. L. 112-158);

and

(d) Prohibition against contracting with entities that export sensitive technologies to Iran (22 U.S.C.

8515).

25.701 Restrictions administered by the Department of the Treasury on

acquisitions of supplies or services from prohibited sources.

(a) Except as authorized by OFAC, agencies and their contractors and subcontractors must not

acquire any supplies or services if any proclamation, Executive order, or statute administered by

OFAC, or if OFAC’s implementing regulations at 31 CFR Chapter V, would prohibit such a

transaction by a person subject to the jurisdiction of the United States.
(b) Except as authorized by OFAC, most transactions involving Cuba, Iran, and Sudan are prohibited,

as are most imports from Burma or North Korea into the United States or its outlying areas. In

addition, lists of entities and individuals subject to economic sanctions are included in OFAC’s List of

Specially Designated Nationals and Blocked Persons at

http://www.treas.gov/offices/enforcement/ofac/sdn. More information about these restrictions, as

well as updates, is available in OFAC’s regulations at 31 CFR Chapter V and/or on OFAC’s website at

http://www.treas.gov/offices/enforcement/ofac.

(c) Refer questions concerning the restrictions in paragraphs (a) or (b) of this section to theDepartment of the Treasury Office of Foreign Assets Control Washington, DC 20220 (Telephone

(202) 622-2490).

25.702 Prohibition on contracting with entities that conduct restricted

business operations in Sudan.

25.702-1 Definitions.

As used in this sectionAppropriate Congressional committees means-

(1) The Committee on Banking, Housing, and Urban Affairs, The Committee on Foreign Relations,

and the Select Committee on Intelligence of the Senate; and

(2) The Committee on Financial Services, the Committee on Foreign Relations, and the Permanent

Select Committee on Intelligence of the House of Representatives.

Business operations means engaging in commerce in any form, including by acquiring, developing,

maintaining, owning, selling, possessing, leasing, or operating equipment, facilities, personnel,

products, services, personal property, real property, or any other apparatus of business or

commerce.

Marginalized populations of Sudan means-

(1) Adversely affected groups in regions authorized to receive assistance under section 8(c) of the

Darfur Peace and Accountability Act (Pub. L. 109-344) (50 U.S.C. 1701 note); and

(2) Marginalized areas in Northern Sudan described in section 4(9) of such Act.

Restricted business operations-

(1) Means, except as provided in paragraph (2) of this definition, business operations in Sudan that

include power production activities, mineral extraction activities, oil-related activities, or the

production of military equipment, as those terms are defined in the Sudan Accountability and

Divestment Act of 2007 (Pub. L. 110-174).

(2) Does not include business operations that the person (as that term is defined in Section 2 of the

Sudan Accountability and Divestment Act of 2007) conducting the business can demonstrate-

(i) Are conducted under contract directly and exclusively with the regional government of southern
Sudan;

(ii) Are conducted pursuant to specific authorization from the Office of Foreign Assets Control in the

Department of the Treasury, or are expressly exempted under Federal law from the requirement to

be conducted under such authorization;

(iii) Consist of providing goods or services to marginalized populations of Sudan;

(iv) Consist of providing goods or services to an internationally recognized peacekeeping force or

humanitarian organization;

(v) Consist of providing goods or services that are used only to promote health or education; or

(vi) Have been voluntarily suspended.

25.702-2 Certification.

As required by the Sudan Accountability and Divestment Act of 2007 (Pub. L. 110-174), each offeror

must certify that it does not conduct restricted business operations in Sudan.

25.702-3 Remedies.

Upon the determination of a false certification under subsection 25.702-2-

(a) The contracting officer may terminate the contract;

(b) The suspending official may suspend the contractor in accordance with the procedures in

subpart 9.4; and

(c) The debarring official may debar the contractor for a period not to exceed 3 years in accordance

with the procedures in subpart 9.4.

25.702-4 Waiver.

(a) The President may waive the requirement of subsection 25.702-2 on a case-by-case basis if the

President determines and certifies in writing to the appropriate congressional committees that it is

in the national interest to do so.

(b) An agency seeking waiver of the requirement shall submit the request to the Administrator of the

Office of Federal Procurement Policy (OFPP), allowing sufficient time for review and approval. Upon

receipt of the waiver request, OFPP shall consult with the President’s National Security Council,

Office of African Affairs, and the Department of State Sudan Office and Sanctions Office to assess

foreign policy aspects of making a national interest recommendation.

(c) Agencies may request a waiver on an individual or class basis; however, waivers are not

indefinite and can be cancelled if warranted.

(1) A class waiver may be requested only when the class of supplies is not available from any other

source and it is in the national interest.
(2) Prior to submitting the waiver request, the request must be reviewed and cleared by the agency

head.

(3) All waiver requests must include the following information:

(i) Agency name, complete mailing address, and point of contact name, telephone number, and email

address;

(ii) Offeror’s name, complete mailing address, and point of contact name, telephone number, and

email address;

(iii) Description/nature of product or service;

(iv) The total cost and length of the contract;

(v) Justification, with market research demonstrating that no other offeror can provide the product

or service and stating why the product or service must be procured from this offeror, as well as why

it is in the national interest for the President to waive the prohibition on contracting with this offeror

that conducts restricted business operations in Sudan, including consideration of foreign policy

aspects identified in consultation(s) pursuant to 25.702-4(b);

(vi) Documentation regarding the offeror’s past performance and integrity (see the Contractor

Performance Assessment Reporting System (CPARS) including the Federal Awardee Performance

Information and Integrity System at https://www.cpars.gov and any other relevant information);

(vii) Information regarding the offeror’s relationship or connection with other firms that conduct

prohibited business operations in Sudan; and

(viii) Any humanitarian efforts engaged in by the offeror, the human rights impact of doing business

with the offeror for which the waiver is requested, and the extent of the offeror’s business

operations in Sudan.

(d) The consultation in 25.702-4(b) and the information in 25.702-4(c)(3) will be considered in

determining whether to recommend that the President waive the requirement of subsection

25.702-2. In accordance with section 6(c) of the Sudan Accountability and Divestment Act of 2007,

OFPP will semiannually submit a report to Congress, on April 15 th and October 15 th, on the

waivers granted.

25.703 Prohibition on contracting with entities that engage in certain

activities or transactions relating to Iran.

25.703-1 Definitions.

As used in this sectionPerson-

(1) Means-

(i) A natural person;
(ii) A corporation, business association, partnership, society, trust, financial institution, insurer,

underwriter, guarantor, and any other business organization, any other nongovernmental entity,

organization, or group, and any governmental entity operating as a business enterprise; and

(iii) Any successor to any entity described in paragraph (1)(ii) of this definition; and

(2) Does not include a government or governmental entity that is not operating as a business

enterprise.

Sensitive technology-

(1) Means hardware, software, telecommunications equipment, or any other technology that is to be

used specifically-

(i) To restrict the free flow of unbiased information in Iran; or

(ii) To disrupt, monitor, or otherwise restrict speech of the people of Iran; and

(2) Does not include information or informational materials the export of which the President does

not have the authority to regulate or prohibit pursuant to section 203(b)(3) of the International

Emergency Economic Powers Act ( 50 U.S.C. 1702(b)(3)).

25.703-2 Iran Sanctions Act.

(a) Certification.

(1) Certification relating to activities described in section 5 of the Iran Sanctions Act. As required by

section 6(b)(1)(A) of the Iran Sanctions Act (50 U.S.C. 1701 note), unless an exception applies in

accordance with paragraph (c) of this subsection, or a waiver is granted in accordance with

25.703-4, each offeror must certify that the offeror, and any person owned or controlled by the

offeror, does not engage in any activity for which sanctions may be imposed under section 5 of the

Iran Sanctions Act. Such activities, which are described in detail in section 5 of the Iran Sanctions

Act, relate to the energy sector of Iran and development by Iran of weapons of mass destruction or

other military capabilities.

(2) Certification relating to transactions with Iran's Revolutionary Guard Corps. As required by

section 6(b)(1)(B) of the Iran Sanctions Act (50 U.S.C. 1701 note), unless an exception applies in

accordance with paragraph (c) of this subsection, or a waiver is granted in accordance with

25.703-4, each offeror must certify that the offeror, and any person owned or controlled by the

offeror, does not knowingly engage in any significant transaction (i.e., a transaction that exceeds

$10,000, with Iran's Revolutionary Guard Corps or any of its officials, agents, or affiliates, the

property and interests in property of which are blocked pursuant to the International Emergency

Economic Powers Act (50 U.S.C. 1701 et seq.)(see OFAC’s Specially Designated Nationals and

Blocked Persons List at

https://www.treasury.gov/resource-center/sanctions/SDN-List/Pages/default.aspx).

(b) Remedies. Upon the determination of a false certification under paragraph (a) of this section, the

agency shall take one or more of the following actions:

(1) The contracting officer terminates the contract in accordance with procedures in part 49, or for
commercial products and commercial services, see 12.403.

(2) The suspending official suspends the contractor in accordance with the procedures in subpart

9.4.

(3) The debarring official debars the contractor for a period of at least two years in accordance with

the procedures in subpart 9.4.

(c) Exception for trade agreements. The certification requirements of paragraph (a) of this

subsection do not apply if the acquisition is subject to trade agreements and the offeror certifies that

all the offered products are designated country end products or designated country construction

material (see subpart 25.4).

25.703-3 Prohibition on contracting with entities that export sensitive technology to Iran.

(a) The head of an executive agency may not enter into or extend a contract for the procurement of

goods or services with a person that exports certain sensitive technology to Iran, as determined by

the President, and has an active exclusion in the System for Award Management at

http://www.sam.gov (22 U.S.C. 8515).

(b) Each offeror must represent that it does not export any sensitive technology to the government of

Iran or any entities or individuals owned or controlled by, or acting on behalf or at the direction of,

the government of Iran.

(c) Exception for trade agreements. The representation requirement of paragraph (b) of this

subsection does not apply if the acquisition is subject to trade agreements and the offeror certifies

that all the offered products are designated country end products or designated country

construction material (see subpart 25.4).

25.703-4 Waiver.

(a) An agency or contractor seeking a waiver of the requirements of 25.703-2 or 25.703-3, consistent

with section 6(b)(5) of the Iran Sanctions Act or 22 U.S.C. 8551(b), respectively, and the Presidential

Memorandum of September 23, 2010 (75 FR 67025), shall submit the request to the Office of

Federal Procurement Policy, allowing sufficient time for review and approval.

(b) Agencies may request a waiver on an individual or class basis; however, waivers are not

indefinite and can be cancelled, if warranted.

(1) A class waiver may be requested only when the class of supplies or equipment is not available

from any other source and it is in the national interest.

(2) Prior to submitting the waiver request, the request must be reviewed and cleared by the agency

head.

(c) In general, all waiver requests should include the following information:

(1) Agency name, complete mailing address, and point of contact name, telephone number, and email address.
(2) Offeror’s name, complete mailing address, and point of contact name, telephone number, and email address.

(3) Description/nature of product or service.

(4) The total cost and length of the contract.

(5) Justification, with market research demonstrating that no other offeror can provide the product

or service and stating why the product or service must be procured from this offeror.

(i) If the offeror exports sensitive technology to the government of Iran or any entities or individuals

owned or controlled by, or acting on behalf or at the direction of, the government of Iran, provide

rationale why it is in the national interest for the President to waive the prohibition on contracting

with this offeror, as required by 22 U.S.C. 8551(b).

(ii) If the offeror conducts activities for which sanctions may be imposed under section 5 of the Iran

Sanctions Act or engages in any transaction that exceeds the threshold at 25.703-2(a)(2) with Iran’s

Revolutionary Guard Corps or any of its officials, agents, or affiliates, the property and interests in

property of which are blocked pursuant to the International Emergency Economic Powers Act,

provide rationale why it is essential to the national security interests of the United States for the

President to waive the prohibition on contracting with this offeror, as required by section 6(b)(5) of

the Iran Sanctions Act.

(6) Documentation regarding the offeror’s past performance and integrity (see the Contractor

Performance Assessment Reporting System (CPARS) and the Federal Awardee Performance

Information and Integrity System at https://www.cpars.gov, and any other relevant information).

(7) Information regarding the offeror’s relationship or connection with other firms that-

(i) Export sensitive technology to the government of Iran or any entities or individuals owned or

controlled by, or acting on behalf or at the direction of, the government of Iran;

(ii) Conduct activities for which sanctions may be imposed under section 5 of the Iran Sanctions Act;

or

(iii) Conduct any transaction that exceeds the threshold at 25.703-2(a)(2) with Iran’s Revolutionary

Guard Corps or any of its officials, agents, or affiliates, the property and interests in property of

which are blocked pursuant to the International Emergency Economic Powers Act.

(8) Describe-

(i) The sensitive technology and the entity or individual to which it was exported (i.e., the

government of Iran or an entity or individual owned or controlled by, or acting on behalf or at the

direction of, the government of Iran);

(ii) The activities in which the offeror is engaged for which sanctions may be imposed under section

5 of the Iran Sanctions Act; or

(iii) The transactions that exceed the threshold at 25.703-2(a)(2) with Iran’s Revolutionary Guard

Corps or any of its officials, agents, or affiliates, the property and interests in property of which are

blocked pursuant to the International Emergency Economic Powers Act.
Subpart 25.8 - Other International Agreements and

Coordination

25.801 General.

Treaties and agreements between the United States and foreign governments affect the evaluation

of offers from foreign entities and the performance of contracts in foreign countries.

25.802 Procedures.

(a) When placing contracts with contractors located outside the United States, for performance

outside the United States, contracting officers must-

(1) Determine the existence and applicability of any international agreements and ensure

compliance with these agreements; and

(2) Conduct the necessary advance acquisition planning and coordination between the appropriate

U.S. executive agencies and foreign interests as required by these agreements.

(b) The Department of State publishes many international agreements in the "United States Treaties

and Other International Agreements" series. Copies of this publication normally are available in

overseas legal offices and U.S. diplomatic missions.

(c) Contracting officers must award all contracts with Taiwanese firms or organizations through the

American Institute of Taiwan (AIT). AIT is under contract to the Department of State.

Subpart 25.9 - Customs and Duties

25.900 Scope of subpart.

This subpart provides policies and procedures for exempting from import duties certain supplies

purchased under Government contracts.

25.901 Policy.

United States laws impose duties on foreign supplies imported into the customs territory of the

United States. Certain exemptions from these duties are available to Government agencies. Agencies

must use these exemptions when the anticipated savings to appropriated funds will outweigh the

administrative costs associated with processing required documentation.

25.902 Procedures.

For regulations governing importations and duties, see the Customs Regulations issued by the U.S.
Customs Service, Department of the Treasury (19 CFR Chapter 1). Except as provided elsewhere in

the Customs Regulations (see 19 CFR 10.100), all shipments of imported supplies purchased under

Government contracts are subject to the usual Customs entry and examination requirements. Unless

the agency obtains an exemption (see 25.903), those shipments are also subject to duty.

25.903 Exempted supplies.

(a) Subchapters VIII and X of Chapter 98 of the Harmonized Tariff Schedule of the United States (19

U.S.C. 1202) list supplies for which exemptions from duty may be obtained when imported into the

customs territory of the United States under a Government contract. For certain of these supplies,

the contracting agency must certify to the Commissioner of Customs that they are for the purpose

stated in the Harmonized Tariff Schedule (see 19 CFR 10.102-104, 10.114, and 10.121 and 15 CFR

Part 301 for requirements and formats).

(b) Supplies (excluding equipment) for Government-operated vessels or aircraft may be withdrawn

from any customs-bonded warehouse, from continuous customs custody elsewhere than in a bonded

warehouse, or from a foreign-trade zone, free of duty and internal revenue tax as provided in 19

U.S.C. 1309 and 1317. The contracting activity must cite this authority on the appropriate customs

form when making purchases (see 19 CFR 10.59 - 10.65).

Subpart 25.10 - Additional Foreign Acquisition Regulations

25.1001 Waiver of right to examination of records.

(a) Policy. The clause at 52.215-2, Audit and Records-Negotiation, prescribed at 15.209(b), and

paragraph (d) of the clause at 52.212-5, Contract Terms and Conditions Required to Implement

Statutes or Executive Orders-Commercial Products and Commercial Services, prescribed at

12.301(b)(4), implement 10 U.S.C. 3841 and 41 U.S.C. 4706. The basic clauses authorize

examination of records by the Comptroller General.

(1) Insert the appropriate basic clause, whenever possible, in negotiated contracts with foreign

contractors.

(2) The contracting officer may use 52.215-2 with its Alternate III or 52.212-5 with its Alternate I

after-

(i) Exhausting all reasonable efforts to include the basic clause;

(ii) Considering factors such as alternate sources of supply, additional cost, and time of delivery; and

(iii) The head of the agency has executed a determination and findings in accordance with paragraph

(b) of this section, with the concurrence of the Comptroller General. However, concurrence of the

Comptroller General is not required if the contractor is a foreign government or agency thereof or is

precluded by the laws of the country involved from making its records available for examination.

(b) Determination and findings. The determination and findings must-

(1) Identify the contract and its purpose, and identify if the contract is with a foreign contractor or
with a foreign government or an agency of a foreign government;

(2) Describe the efforts to include the basic clause;

(3) State the reasons for the contractor’s refusal to include the basic clause;

(4) Describe the price and availability of the supplies or services from the United States and other

sources; and

(5) Determine that it will best serve the interest of the United States to use the appropriate alternate

clause in paragraph (a)(2) of this section.

25.1002 Use of foreign currency.

(a) Unless an international agreement or the WTO GPA (see 25.408(a)(4)) requires a specific

currency, contracting officers must determine whether solicitations for contracts to be entered into

and performed outside the United States will require submission of offers in U.S. currency or a

specified foreign currency. In unusual circumstances, the contracting officer may permit submission

of offers in other than a specified currency.

(b) To ensure a fair evaluation of offers, solicitations generally should require all offers to be priced

in the same currency. However, if the solicitation permits submission of offers in other than a

specified currency, the contracting officer must convert the offered prices to U.S. currency for

evaluation purposes. The contracting officer must use the current market exchange rate from a

commonly used source in effect as follows:

(1) For acquisitions conducted using sealed bidding procedures, on the date of bid opening.

(2) For acquisitions conducted using negotiation procedures-

(i) On the date specified for receipt of offers, if award is based on initial offers; otherwise

(ii) On the date specified for receipt of final proposal revisions.

(c) If a contract is priced in foreign currency, the agency must ensure that adequate funds are

available to cover currency fluctuations to avoid a violation of the Anti-Deficiency Act (31

U.S.C. 1341, 1342, 1511-1519).

25.1003 Tax on certain foreign procurements.

See 29.204 for the imposition of the tax on certain foreign procurements pursuant to the James

Zadroga 9/11 Health and Compensation Act of 2010 (Pub. L. 111-347), 26 U.S.C. 5000 C, and its

implementing regulations at 26 CFR 1.5000C-1 through 1.5000C-7.

Subpart 25.11 - Solicitation Provisions and Contract Clauses
25.1101 Acquisition of supplies.

The following provisions and clauses apply to the acquisition of supplies and the acquisition of

services involving the furnishing of supplies.

(a)

(1)

(i) Insert the clause at 52.225-1, Buy American-Supplies, in solicitations and contracts with a value

exceeding the micro-purchase threshold but not exceeding $50,000; and in solicitations and

contracts with a value exceeding $50,000, if none of the clauses prescribed in paragraphs (b) and (c)

of this section apply, except if-

(A) The solicitation is restricted to domestic end products in accordance with subpart 6.3;

(B) The acquisition is for supplies for use within the United States and an exception to the Buy

American statute applies (e.g., nonavailability, public interest, or information technology that is a

commercial product); or

(C) The acquisition is for supplies for use outside the United States.

(ii) The contracting officer shall use the clause with its Alternate I to reflect the domestic content

threshold that will apply to the entire period of performance, when the senior procurement

executive allows for application of an alternate domestic content test for the contract in accordance

with 25.101(d). For contracts that the contracting officer estimates will be awarded in calendar year

2022 or 2023, the contracting officer shall insert “60” in paragraph (1)(ii)(A) of the definition of

“domestic end product.” For contracts that the contracting officer estimates will be awarded in

calendar year 2024, 2025, 2026, 2027, or 2028, the contracting officer shall insert “65”. For

contracts that the contracting officer estimates will be awarded after calendar year 2028 the

contracting officer shall insert “75”.

(2) Insert the provision at 52.225-2, Buy American Certificate, in solicitations containing the clause

at 52.225-1.

(b)

(1)

(i) Insert the clause at 52.225-3, Buy American-Free Trade Agreements-Israeli Trade Act, in

solicitations and contracts if-

(A) The acquisition is for supplies, or for services involving the furnishing of supplies, for use within

the United States, and the acquisition value is $50,000; or more, but is less than $174,000;

(B) The acquisition is not for information technology that is a commercial product, using fiscal year

2004 or subsequent fiscal year funds; and

(C) No exception in 25.401 applies. For acquisitions of agencies not subject to the Israeli Trade Act

(see 25.406), see agency regulations.
(ii) If the acquisition value is $50,000 or more but is less than $100,000, use the clause with its

Alternate II.

(iii) If the acquisition value is $100,000 or more but is less than $102,280, use the clause with its

Alternate III.

(iv) The contracting officer shall use the clause with its Alternate IV to reflect the domestic content

threshold that will apply to the entire period of performance, when the senior procurement

executive allows for application of an alternate domestic content test for the contract in accordance

with 25.102(d). For contracts that the contracting officer estimates will be awarded in calendar year

2022 or 2023, the contracting officer shall insert “60” in paragraph (1)(ii)(A) of the definition of

“domestic end product.” For contracts that the contracting officer estimates will be awarded in

calendar year 2024, 2025, 2026, 2027, or 2028, the contracting officer shall insert “65”. For

contracts that the contracting officer estimates will be awarded after calendar year 2028 the

contracting officer shall insert “75”.

(2)

(i) Insert the provision at 52.225-4, Buy American-Free Trade Agreements-Israeli Trade Act

Certificate, in solicitations containing the clause at 52.225-3.

(ii) If the acquisition value is $50,000 or more but is less than $100,000, use the provision with its

Alternate II.

(iii) If the acquisition value is $100,000 or more, but is less than $102,280, use the provision with its

Alternate III.

(c)

(1) Insert the clause at 52.225-5, Trade Agreements, in solicitations and contracts valued at

$174,000 or more, if the acquisition is covered by the WTO GPA (see subpart 25.4) and the agency

has determined that the restrictions of the Buy American statute are not applicable to U.S.-made end

products. If the agency has not made such a determination, the contracting officer must follow

agency procedures.

(2) Insert the provision at 52.225-6, Trade Agreements Certificate, in solicitations containing the

clause at 52.225-5.

(d) Insert the provision at 52.225-7, Waiver of Buy American Statute for Civil Aircraft and Related

Articles, in solicitations for civil aircraft and related articles (see 25.407), if the acquisition value is

less than $174,000.

(e) Insert the clause at 52.225-8, Duty-Free Entry, in solicitations and contracts for supplies that may

be imported into the United States and for which duty-free entry may be obtained in accordance

with 25.903(a), if the value of the acquisition-

(1) Exceeds the simplified acquisition threshold; or

(2) Does not exceed the simplified acquisition threshold, but the savings from waiving the duty is

anticipated to be more than the administrative cost of waiving the duty. When used for acquisitions

that do not exceed the simplified acquisition threshold, the contracting officer may modify
paragraphs (c)(1) and (j)(2) of the clause to reduce the dollar figure.

(f) Insert the provision at 52.225-18, Place of Manufacture, in solicitations that are predominantly

for the acquisition of manufactured end products (i.e., the estimated value of the manufactured end

products exceeds the estimated value of other items to be acquired as a result of the solicitation).

25.1102 Acquisition of construction.

When using funds other than those appropriated under the American Recovery and Reinvestment

Act of 2009 (Pub. L. 111-5) (Recovery Act), follow the prescriptions in paragraphs (a) through (d) of

this section. Otherwise, follow the prescription in paragraph (e).

(a) Insert the clause at 52.225-9, Buy American-Construction Materials, in solicitations and contracts

for construction that is performed in the United States valued at less than $6,708,000.

(1) List in paragraph (b)(2) of the clause all foreign construction material excepted from the

requirements of the Buy American statute.

(2) If the head of the agency determines that a higher percentage is appropriate, substitute the

higher evaluation percentage in paragraph (b)(3)(i) of the clause.

(3) The contracting officer shall use the clause with its Alternate I to reflect the domestic content

threshold that will apply to the entire period of performance, when the senior procurement

executive allows for application of an alternate domestic content test for the contract in accordance

with 25.201(c). For contracts that the contracting officer estimates will be awarded in calendar year

2022 or 2023, the contracting officer shall insert “60” in paragraph (1)(ii)(A) of the definition of

“domestic construction material.” For contracts that the contracting officer estimates will be

awarded in calendar year 2024, 2025, 2026, 2027, or 2028, the contracting officer shall insert “65”.

For contracts that the contracting officer estimates will be awarded after calendar year 2028 the

contracting officer shall insert “75”.

(b)

(1) Insert the provision at 52.225-10, Notice of Buy American Requirement-Construction Materials,

in solicitations containing the clause at 52.225-9.

(2) If insufficient time is available to process a determination regarding the inapplicability of the Buy

American statute before receipt of offers, use the provision with its Alternate I.

(c) Insert the clause at 52.225-11, Buy American-Construction Materials under Trade Agreements, in

solicitations and contracts for construction that is performed in the United States valued at

$6,708,000 or more.

(1) List in paragraph (b)(3) of the clause all foreign construction material excepted from the

requirements of the Buy American statute, other than designated country construction material.

(2) If the head of the agency determines that a higher percentage is appropriate, substitute the

higher evaluation percentage in paragraph (b)(4)(i) of the clause.

(3) For acquisitions valued at $6,708,000 or more, but less than $13,296,489, use the clause with its

Alternate I. List in paragraph (b)(3) of the clause all foreign construction material excepted from the
requirements of the Buy American statute, unless the excepted foreign construction material is from

a designated country other than Bahrain, Mexico, and Oman.

(4) The contracting officer shall use the clause with its Alternate II to reflect the domestic content

threshold that will apply to the entire period of performance, when the senior procurement

executive allows for application of an alternate domestic content test for the contract in accordance

with 25.201(c). For contracts that the contracting officer estimates will be awarded in calendar year

2022 or 2023, the contracting officer shall insert “60” in paragraph (1)(ii)(A) of the definition of

“domestic construction material.” For contracts that the contracting officer estimates will be

awarded in calendar year 2024, 2025, 2026, 2027, or 2028, the contracting officer shall insert “65”.

For contracts that the contracting officer estimates will be awarded after calendar year 2028 the

contracting officer shall insert “75”.

(d)

(1) Insert the provision at 52.225-12, Notice of Buy American Requirement-Construction Materials

under Trade Agreements, in solicitations containing the clause at 52.225-11.

(2) If insufficient time is available to process a determination regarding the inapplicability of the Buy

American statute before receipt of offers, use the provision with its Alternate I.

(3) For acquisitions valued at $6,708,000 or more, but less than $13,296,489, use the provision with

its Alternate II.

(e)

(1) When using funds appropriated under the Recovery Act for construction, use provisions and

clauses 52.225-21, 52.225-22, 52.225-23, or 52.225-24 (with appropriate Alternates) in lieu of the

provisions and clauses 52.225-9, 52.225-10, 52.225-11, or 52.225-12 (with appropriate Alternates),

respectively, that would be applicable as prescribed in paragraphs (a) through (d) of this section if

Recovery Act funds were not used.

(2) If these Recovery Act provisions and clauses are only applicable to a project consisting of certain

line items in the contract, identify in the schedule the line items to which the provisions and clauses

apply.

(3) When using clause 52.225-23, list foreign construction material in paragraph (b)(3) of the clause

as follows:

(i) Basic clause. List all foreign construction materials excepted from the Buy American statute or

section 1605 of the Recovery Act, other than manufactured construction material from a Recovery

Act designated country or unmanufactured construction material from a designated country.

(ii) Alternate I. List in paragraph (b)(3) of the clause all foreign construction material excepted from

the Buy American statute or section 1605 of the Recovery Act, other than-

(A) Manufactured construction material from a Recovery Act designated country other than Bahrain,

Mexico, or Oman; or

(B) Unmanufactured construction material from a designated country other than Bahrain, Mexico, or

Oman.
25.1103 Other provisions and clauses.

(a) Restrictions on certain foreign purchases. Insert the clause at 52.225-13, Restrictions on Certain

Foreign Purchases, in solicitations and contracts, unless an exception applies.

(b) Translations. Insert the clause at 52.225-14, Inconsistency Between English Version and

Translation of Contract, in solicitations and contracts if anticipating translation into another

language.

(c) Foreign currency offers. Insert the provision at 52.225-17, Evaluation of Foreign Currency Offers,

in solicitations that permit the use of other than a specified currency. Insert in the provision the

source of the rate to be used in the evaluation of offers.

(d) The contracting officer shall include in each solicitation for the acquisition of other than

commercial products or commercial services the provision at 52.225-20, Prohibition on Conducting

Restricted Business Operations in Sudan—Certification.

(e) The contracting officer shall include in all solicitations the provision at 52.225-25, Prohibition on

Contracting with Entities Engaging in Certain Activities or Transactions Relating to IranRepresentation and Certifications.