FAR 25.2—Subpart 25.2

Scope of subpart.

FAR 25.200 defines the scope of Subpart 25.2, which is the Buy American Act framework for construction contracts. It explains that this subpart implements the statutory Buy American requirements in 41 U.S.C. chapter 83, along with the listed Executive Orders that shape domestic preference policy, and it also recognizes the special statutory waiver for commercially available off-the-shelf (COTS) items under 41 U.S.C. 1907, subject to the cross-reference in 25.201(b)(2)(ii). In practical terms, this section tells contracting personnel and contractors when the Buy American rules in this subpart apply and what legal authorities support them. It specifically applies to contracts for the construction, alteration, or repair of public buildings or public works in the United States, so it is a threshold applicability rule for construction acquisitions. It also directs users to Subpart 25.6 when Recovery Act funds are used for construction, because those procurements have separate domestic preference requirements. This section matters because it determines whether a project is subject to Buy American evaluation, domestic content restrictions, and related waiver or exception analysis before award.

Policy.

FAR 25.201 states the basic Buy American policy for construction contracts performed in the United States: contractors must use domestic construction materials unless an exception in FAR 25.202 applies. It explains how the Buy American statute, Executive Order 13881, and Executive Order 14005 define when a construction material is “domestic,” including the two-part test for manufactured construction materials and the special rule for materials made wholly or predominantly of iron or steel. The section also addresses the phased increase in the domestic content threshold for manufactured construction materials, the special waiver for commercial off-the-shelf (COTS) items, and the limited exception for COTS fasteners in the iron-and-steel category. Finally, it covers how to handle contracts whose period of performance spans multiple threshold increases, including the authority of the senior procurement executive to approve an alternate domestic content test for the entire contract period. In practice, this section is the starting point for determining whether construction materials are acceptable for a U.S. construction contract and what domestic content standard applies at award and during performance.

Exceptions.

FAR 25.202 explains when the Buy American statute’s restrictions on foreign construction materials do not apply, and it is the main exceptions provision for construction acquisitions. It covers four exception paths: impracticability or inconsistency with the public interest, nonavailability of a material in sufficient and reasonably available U.S. commercial quantities of satisfactory quality, unreasonable cost under the domestic-content price evaluation rules, and a special exception for information technology that is a commercial product when funded with FY 2004 or later appropriations. The section also addresses the required determination-and-findings process, including the duty to identify excepted materials in the contract and to make the supporting findings available for public inspection. Finally, it points readers to the trade agreements rules for larger construction acquisitions at subpart 25.4. In practice, this section tells contracting officers when they may lawfully permit foreign construction materials, what approvals are needed, and what documentation must be in the contract file and contract itself.

Preaward determinations.

FAR 25.203 addresses preaward determinations of whether the Buy American statute applies to specifically identified construction materials. It explains when an offeror may ask the contracting officer for a determination of inapplicability, when that request must be submitted, what supporting information must be included, and how the contracting officer must evaluate the request before award. In practice, this section is the procedural bridge between the solicitation’s Buy American clauses and the agency’s award decision: it gives offerors a formal way to seek an exception for particular construction materials and requires the contracting officer to make a preaward judgment based on the submitted facts and any readily available additional information. The section ties directly to the solicitation instructions in the applicable Buy American construction clauses, so the exact timing and content requirements come from the solicitation rather than this section alone. Its practical significance is that it helps avoid award delays, reduces disputes over material origin or availability, and ensures the agency makes a documented, informed decision before contract award.

Evaluating offers of foreign construction material.

FAR 25.204 explains how contracting officers must evaluate offers that propose foreign construction material and how offerors can support those proposals. It covers the information offerors must submit when seeking an exception to the Buy American statute, the price evaluation adjustments the contracting officer must apply, special treatment for construction material that is not a critical item and does not contain critical components, and a separate, stricter evaluation rule for critical items or materials containing critical components. It also addresses the temporary domestic-content-based evaluation procedure for certain non-COTS, non-iron/steel materials that exceed 55 percent domestic content, with a sunset date of January 1, 2030. In addition, it allows alternate offers using equivalent domestic construction material to reduce the risk of rejection if the foreign-material exception does not apply, and it requires the contracting officer to update the contract clause list when an award is made to an offeror proposing foreign construction material not already listed in the solicitation. In practice, this section is about how foreign construction material is priced, compared, and documented during source selection so the Government can apply Buy American preferences consistently and transparently.

Postaward determinations.

FAR 25.205 explains how the government handles requests made after award for a determination that the Buy American statute does not apply to particular construction material. It covers three main subjects: the contractor’s burden to justify why the request was not made before award, the contracting officer’s duty to evaluate the request using the information required by the applicable solicitation clause and other readily available information, and the action required if an exception is found to apply after award. In practice, this section is about timing, documentation, and contract adjustment. It protects the government from late requests that should have been raised during competition, while still allowing relief when the need for an exception was not reasonably foreseeable. It also ensures that if foreign construction material is ultimately permitted, the government receives adequate consideration and the contract is formally modified to reflect the change.

Noncompliance.

FAR 25.206 explains what the contracting officer must do when there are allegations or evidence that a contractor or subcontractor used foreign construction material without authorization in violation of the Buy American statute. It covers the required review of allegations, the notice-and-response process when fraud is not suspected, and the range of corrective and enforcement actions available if noncompliance is confirmed. The section also addresses when the contracting officer may decide that removal and replacement of the foreign material is impracticable or not in the Government’s interest, while making clear that such a decision is not the same as finding a Buy American exception applies. It further preserves the Government’s rights to pursue other remedies, including price reduction, termination for default, suspension or debarment referrals, and criminal or fraud-related referrals when appropriate. In practice, this section is the enforcement and response framework for Buy American violations involving construction materials, balancing correction of the violation with protection of the Government’s contractual and integrity interests.