Subpart 25.2

FAC 2005–24 FEBRUARY 28, 2008
SUBPART 25.2—BUY AMERICAN ACT—CONSTRUCTION MATERIALS

Subpart 25.2—Buy American Act—
Construction Materials
25.200 Scope of subpart.
This subpart implements the Buy American Act
(41 U.S.C. 10a - 10d) and Executive Order 10582,
December 17, 1954. It applies to contracts for the construction, alteration, or repair of any public building or public work
in the United States.
25.201 Policy.
Except as provided in 25.202, use only domestic construction materials in construction contracts performed in the
United States.
25.202 Exceptions.
(a) When one of the following exceptions applies, the contracting officer may acquire foreign construction materials
without regard to the restrictions of the Buy American Act:
(1) Impracticable or inconsistent with public interest.
The head of the agency may determine that application of the
restrictions of the Buy American Act 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 Act.
(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.
(3) Unreasonable cost. The contracting officer concludes that the cost of domestic construction material is unreasonable in accordance with 25.204.
(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 $7,443,000 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 Act for specifically identified construction materials. The time for submitting the request is
specified in the solicitation in paragraph (b) of either

25.205

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) Unless the head of the agency specifies a higher percentage, the contracting officer must add to the offered price
6 percent of the cost of any foreign construction material proposed for exception from the requirements of the Buy American Act based on the unreasonable cost of domestic
construction materials. In the case of a tie, 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.
(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 Act 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 Act 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.
25.2-1

25.206

FEDERAL ACQUISITION REGULATION

(c) If a determination, under 25.202(a), is made after contract award that an exception to the Buy American Act
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 Act 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 Act in accordance with 25.205.
(2) Consider requiring the removal and replacement of
the unauthorized foreign construction material.

25.2-2

(FAC 2005–08)

(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 Act 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 Act,
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.