52.225-9 Buy American-Construction

Materials.

As prescribed in 25.1102(a), insert the following clause:

Buy American-Construction Materials (Oct 2022)

(a) Definitions. As used in this clause—

Commercially available off-the-shelf (COTS) item—

(1) Means any item of supply (including construction material) that is–

(i) A commercial product (as defined in paragraph (1) of the definition of “commercial product” at

Federal Acquisition Regulation (FAR) 2.101);

(ii) Sold in substantial quantities in the commercial marketplace; and

(iii) Offered to the Government, under a contract or subcontract at any tier, without modification, in

the same form in which it is sold in the commercial marketplace; and

(2) Does not include bulk cargo, as defined in 46 U.S.C. 40102(4), such as agricultural products and

petroleum products.

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

Contractor or a subcontractor for incorporation into the building or work. The term also includes an

item brought to the site preassembled from articles, materials, or supplies. However, emergency life

safety systems, such as emergency lighting, fire alarm, and audio evacuation systems, that are

discrete systems incorporated into a public building or work and that are produced as complete

systems, are evaluated as a single and distinct construction material regardless of when or how the

individual parts or components of those systems are delivered to the construction site. Materials

purchased directly by the Government are supplies, not construction material.

Cost of components means—

(1) For components purchased by the Contractor, the acquisition cost, including transportation costs

to the place of incorporation into the construction material (whether or not such costs are paid to a

domestic firm), and any applicable duty (whether or not a duty-free entry certificate is issued); or

(2) For components manufactured by the Contractor, all costs associated with the manufacture of

the component, including transportation costs as described in paragraph (1) of this definition, plus

allocable overhead costs, but excluding profit. Cost of components does not include any costs

associated with the manufacture of the construction material.

Critical component means a component that is mined, produced, or manufactured in the United

States and deemed critical to the U.S. supply chain. The list of critical components is at FAR 25.105.

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

to U.S. supply chain resiliency. The list of critical items is at FAR 25.105.
Domestic construction material means—

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

combination of both-

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

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

(A) The cost of its components mined, produced, or manufactured in the United States exceeds 60

percent of the cost of all its components, except that the percentage will be 65 percent for items

delivered in calendar years 2024 through 2028 and 75 percent for items delivered starting in

calendar year 2029. Components of foreign origin of the same class or kind for which nonavailability

determinations have been made are treated as domestic. Components of unknown origin are treated

as foreign; or

(B) The construction material is a COTS item; or

(2) For construction material that consists wholly or predominantly of iron or steel or a combination

of both, a construction material manufactured in the United States if the cost of foreign iron and

steel constitutes less than 5 percent of the cost of all components used in such construction

material. The cost of foreign iron and steel includes but is not limited to the cost of foreign iron or

steel mill products (such as bar, billet, slab, wire, plate, or sheet), castings, or forgings utilized in the

manufacture of the construction material and a good faith estimate of the cost of all foreign iron or

steel components excluding COTS fasteners. Iron or steel components of unknown origin are treated

as foreign. If the construction material contains multiple components, the cost of all the materials

used in such construction material is calculated in accordance with the definition of "cost of

components".

Fastener means a hardware device that mechanically joins or affixes two or more objects together.

Examples of fasteners are nuts, bolts, pins, rivets, nails, clips, and screws.

Foreign construction material means a construction material other than a domestic construction

material.

Foreign iron and steel means iron or steel products not produced in the United States. Produced in

the United States means that all manufacturing processes of the iron or steel must take place in the

United States, from the initial melting stage through the application of coatings, except

metallurgical processes involving refinement of steel additives. The origin of the elements of the iron

or steel is not relevant to the determination of whether it is domestic or foreign.

Predominantly of iron or steel or a combination of both means that the cost of the iron and steel

content exceeds 50 percent of the total cost of all its components. The cost of iron and steel is the

cost of the iron or steel mill products (such as bar, billet, slab, wire, plate, or sheet), castings, or

forgings utilized in the manufacture of the product and a good faith estimate of the cost of iron or

steel components excluding COTS fasteners.

Steel means an alloy that includes at least 50 percent iron, between 0.02 and 2 percent carbon, and

may include other elements.

"United States" means the 50 States, the District of Columbia, and outlying areas.
(b) Domestic preference.

(1) This clause implements 41 U.S.C.chapter 83, Buy American, by providing a preference for

domestic construction material. In accordance with 41 U.S.C. 1907, the domestic content test of the

Buy American statute is waived for construction material that is a COTS item, except that for

construction material that consists wholly or predominantly of iron or steel or a combination of both,

the domestic content test is applied only to the iron and steel content of the construction materials,

excluding COTS fasteners. (See FAR 12.505(a)(2)). The Contractor shall use only domestic

construction material in performing this contract, except as provided in paragraphs (b)(2) and (b)(3)

of this clause.

(2) This requirement does not apply to information technology that is a commercial product or to the

construction materials or components listed by the Government as follows:

________________________________________________[Contracting Officer to list applicable excepted

materials or indicate "none"]

(3) The Contracting Officer may add other foreign construction material to the list in paragraph

(b)(2) of this clause if the Government determines that-

(i) The cost of domestic construction material would be unreasonable.

(A) For domestic construction material that is not a critical item or does not contain critical

components.

(1) The cost of a particular domestic construction material subject to the requirements of the Buy

American statute is unreasonable when the cost of such material exceeds the cost of foreign material

by more than 20 percent;

(2) For construction material that is not a COTS item and does not consist wholly or predominantly

of iron or steel or a combination of both, if the cost of a particular domestic construction material is

determined to be unreasonable or there is no domestic offer received, and the low offer is for foreign

construction material that is manufactured in the United States and does not exceed 55 percent

domestic content, the Contracting Officer will treat the lowest offer of foreign construction material

that exceeds 55 percent domestic content as a domestic offer and determine whether the cost of that

offer is unreasonable by applying the evaluation factor listed in paragraph (b)(3)(i)(A)(1) of this

clause.

(3) The procedures in paragraph (b)(3)(i)(A)(2) of this clause will no longer apply as of January 1,

2030.

(B) For domestic construction material that is a critical item or contains critical components.

(1) The cost of a particular domestic construction material that is a critical item or contains critical

components, subject to the requirements of the Buy American statute, is unreasonable when the cost

of such material exceeds the cost of foreign material by more than 20 percent plus the additional

preference factor identified for the critical item or construction material containing critical

components listed at FAR 25.105.

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

combination of both, if the cost of a particular domestic construction material is determined to be

unreasonable or there is no domestic offer received, and the low offer is for foreign construction
material that does not exceed 55 percent domestic content, the Contracting Officer will treat the

lowest foreign offer of construction material that is manufactured in the United States and exceeds

55 percent domestic content as a domestic offer, and determine whether the cost of that offer is

unreasonable by applying the evaluation factor listed in paragraph (b)(3)(i)(B)(1) of this clause.

(3) The procedures in paragraph (b)(3)(i)(B)(2) of this clause will no longer apply as of January 1,

2030.

(ii) The application of the restriction of the Buy American statute to a particular construction

material would be impracticable or inconsistent with the public interest; or

(iii) The construction material is not mined, produced, or manufactured in the United States in

sufficient and reasonably available commercial quantities of a satisfactory quality.

(c) Request for determination of inapplicability of the Buy American statute.

(1)

(i) Any Contractor request to use foreign construction material in accordance with paragraph (b)(3)

of this clause shall include adequate information for Government evaluation of the request,

including-

(A) A description of the foreign and domestic construction materials;

(B) Unit of measure;

(C) Quantity;

(D) Price;

(E) Time of delivery or availability;

(F) Location of the construction project;

(G) Name and address of the proposed supplier; and

(H) A detailed justification of the reason for use of foreign construction materials cited in accordance

with paragraph (b)(3) of this clause.

(ii) A request based on unreasonable cost shall include a reasonable survey of the market and a

completed price comparison table in the format in paragraph (d) of this clause.

(iii) The price of construction material shall include all delivery costs to the construction site and any

applicable duty (whether or not a duty-free certificate may be issued).

(iv) Any Contractor request for a determination submitted after contract award shall explain why the

Contractor could not reasonably foresee the need for such determination and could not have

requested the determination before contract award. If the Contractor does not submit a satisfactory

explanation, the Contracting Officer need not make a determination.

(2) If the Government determines after contract award that an exception to the Buy American

statute applies and the Contracting Officer and the Contractor negotiate adequate consideration, the

Contracting Officer will modify the contract to allow use of the foreign construction material.
However, when the basis for the exception is the unreasonable price of a domestic construction

material, adequate consideration is not less than the differential established in paragraph (b)(3)(i) of

this clause.

(3) Unless the Government determines that an exception to the Buy American statute applies, use of

foreign construction material is noncompliant with the Buy American statute.

(d) Data. To permit evaluation of requests under paragraph (c) of this clause based on unreasonable

cost, the Contractor shall include the following information and any applicable supporting data

based on the survey of suppliers:

Foreign and Domestic Construction Materials Price Comparison

Construction Material

Description

Unit of

Measure Quantity Price(dollars)*

Item1:

Foreign construction

material _______ _______ _______

Domestic construction

material _______ _______ _______

Item2:

Foreign construction

material _______ _______ _______

Domestic construction

material _______ _______ _______

[* Include all delivery costs to the construction site and any applicable duty (whether or not a

duty-free entry certificate is issued)].

[List name, address, telephone number, and contact for suppliers surveyed. Attach copy of

response; if oral, attach summary.]

[Include other applicable supporting information.]

(End of clause)

Alternate I (Oct 2022). As prescribed in 25.1102 (a)(3) substitute the following sentence for the first

sentence in paragraph (1)(ii)(A) of the definition of “domestic construction material” in paragraph

(a):

(A) The cost of its components mined, produced, or manufactured in the United States exceeds __
percent of the cost of all its components. [ Contracting officer to insert the percentage. ]

Parent topic: 52.225 [Reserved]