FAR 25.1102—Acquisition of construction.
Plain-English Summary
FAR 25.1102 tells contracting officers which Buy American Act and trade agreements clauses and notices to use when acquiring construction, and how those prescriptions change based on where the work will be performed, the estimated dollar value, whether the acquisition is subject to trade agreements, whether the agency has approved a higher evaluation percentage, whether an alternate domestic content test applies, and whether Recovery Act funds are being used. It covers the basic Buy American-Construction Materials clause and notice for lower-value U.S. construction, the Buy American-Construction Materials under Trade Agreements clause and notice for higher-value U.S. construction, the use of alternates to reflect insufficient time for a waiver/inapplicability determination, and the special Recovery Act provisions and clauses that replace the normal ones when Recovery Act funds are used. It also addresses how to list excepted foreign construction materials in the clauses, including special treatment for designated country construction material and the Bahrain, Mexico, and Oman exception for certain acquisitions. In practice, this section is a clause-selection roadmap: the contracting officer must match the solicitation and contract language to the funding source, estimated value, and applicable domestic content rules, while contractors must understand which materials are restricted, which exceptions may apply, and how the solicitation will evaluate offers. The section is important because using the wrong clause, alternate, or threshold can make a solicitation noncompliant, affect evaluation, or create post-award performance problems.
Key Rules
Use the right clause set
For non-Recovery Act construction, the contracting officer must choose between the Buy American-Construction Materials clause and the Buy American-Construction Materials under Trade Agreements clause based on whether the construction is performed in the United States and whether the estimated value is below or at/above the applicable threshold. The related notice provision must be inserted in solicitations that contain the matching clause.
Lower-value U.S. construction
For construction performed in the United States valued at less than $6,683,000, the solicitation and contract must include 52.225-9, Buy American-Construction Materials, and the solicitation must include 52.225-10, Notice of Buy American Requirement-Construction Materials. The contracting officer must list in the clause all foreign construction material excepted from the Buy American statute.
Higher-value U.S. construction
For construction performed in the United States valued at $6,683,000 or more, the solicitation and contract must include 52.225-11, Buy American-Construction Materials under Trade Agreements, and the solicitation must include 52.225-12, Notice of Buy American Requirement-Construction Materials under Trade Agreements. The clause must identify excepted foreign construction material, but designated country construction material is treated differently from other foreign material.
Trade agreements and designated countries
For acquisitions at or above the trade agreements threshold, the clause must account for designated country construction material. For acquisitions valued at $6,683,000 or more but less than $13,749,689, Alternate I applies, and the contracting officer lists all excepted foreign construction material except designated country construction material, unless the excepted material is from Bahrain, Mexico, or Oman as specified in the rule.
Higher evaluation percentage
If the head of the agency determines that a higher evaluation percentage is appropriate, the contracting officer must substitute that higher percentage in the applicable clause. This affects how offers are evaluated when domestic content preferences are applied.
Alternate domestic content test
When the senior procurement executive authorizes an alternate domestic content test under 25.201(c), the contracting officer must use the applicable clause alternate to reflect the domestic content threshold that will apply for the entire period of performance. The rule specifies different domestic content percentages to insert depending on the estimated award year: 60 for awards estimated in 2022 or 2023, 65 for 2024 through 2028, and 75 after 2028.
Recovery Act funds use special clauses
When using Recovery Act funds for construction, the contracting officer must use the Recovery Act-specific provisions and clauses 52.225-21 through 52.225-24, with the appropriate alternates, instead of the normal Buy American clauses and notices that would otherwise apply. If only some line items are subject to the Recovery Act requirements, the schedule must identify those line items.
List exceptions precisely
When the clause requires a list of excepted foreign construction material, the contracting officer must include the material in the specified paragraph of the clause. The exact list depends on whether the clause is the basic version or an alternate, and on whether the exception is for designated country material or other foreign material.
Responsibilities
Contracting Officer
Select and insert the correct Buy American or Recovery Act clause and notice based on funding source, estimated value, and applicability of trade agreements. List all required excepted foreign construction materials, apply the correct alternate when time is insufficient for a waiver/inapplicability determination, insert the correct domestic content percentage when an alternate domestic content test applies, and identify any line items covered when Recovery Act requirements apply only to part of the contract.
Head of the Agency
Determine whether a higher evaluation percentage is appropriate and direct substitution of that percentage in the applicable clause.
Senior Procurement Executive
Authorize application of an alternate domestic content test under 25.201(c), which triggers use of the clause alternate reflecting the applicable domestic content threshold for the full period of performance.
Contractor/Offeror
Review the solicitation clauses and notices to determine which construction materials are restricted, which exceptions may be available, whether designated country or Recovery Act rules apply, and how domestic content requirements will affect pricing, sourcing, and compliance during performance.
Agency/Program Office
Ensure funding is correctly identified as Recovery Act or non-Recovery Act funding and provide acquisition planning support so the contracting officer can apply the correct clause set and identify any line-item-specific applicability.
Practical Implications
Clause selection is not optional: using the wrong clause or notice can invalidate the solicitation package or create a compliance defect that must be corrected before award.
The dollar threshold drives the rule set, so contracting officers must use the correct estimated value and understand whether the acquisition is subject to trade agreements and designated country treatment.
Recovery Act funding changes the entire framework; even if the project would normally use the standard Buy American clauses, Recovery Act-specific provisions replace them and may apply only to certain line items.
The lists of excepted materials matter operationally because they define what foreign materials may be proposed or used; incomplete or inaccurate lists can lead to rejected offers, post-award disputes, or noncompliant substitutions.
The alternate domestic content thresholds are time-sensitive and tied to the estimated award year, so acquisition planning must account for the correct percentage at the outset rather than trying to fix it after solicitation release.
Official Regulatory Text
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 $6,683,000. (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 $6,683,000 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 $6,683,000 or more, but less than $13,749,689, 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 $6,683,000 or more, but less than $13,749,689, 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.