FAR 25.202—Exceptions.
Plain-English Summary
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.
Key Rules
Public interest exception
The head of the agency may determine that applying the Buy American restrictions to a particular construction material would be impracticable or inconsistent with the public interest. This exception also applies when an agency has a foreign-government agreement that creates a blanket exception to the statute.
Nonavailability exception
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 satisfactory quality. The rule also incorporates the nonavailability determinations and procedures for the listed articles in FAR 25.104 when those articles are acquired as construction materials.
Temporary nonavailability rule
Before January 1, 2030, a separate nonavailability determination is not required if there is an offer for foreign construction material that exceeds 55 percent domestic content, as referenced in FAR 25.204. This creates a limited, time-based shortcut tied to the domestic-content evaluation rules.
Unreasonable cost exception
The contracting officer may allow foreign construction material when domestic construction material is unreasonable in cost under the price evaluation procedures in FAR 25.204. This exception depends on the cost comparison rules, not on a separate policy judgment.
Commercial IT exception
The restriction on foreign construction material does not apply to information technology that is a commercial product when the acquisition is funded with FY 2004 or later appropriations. This is a statutory appropriations-based exception and applies only to that specific category of product.
Documentation and public inspection
When an exception is used, the contracting officer must list the excepted foreign construction materials in the contract. The agency must also make the findings supporting the exception available for public inspection.
Trade agreements threshold
For construction contracts with an estimated acquisition value of $6,683,000 or more, the contracting officer must look to subpart 25.4 for trade agreement coverage and related requirements. This means the Buy American analysis may be affected or displaced by applicable trade agreement rules.
Responsibilities
Head of Agency
May determine that applying the Buy American restrictions to a particular construction material is impracticable or inconsistent with the public interest. The head of the agency is also the official who can invoke the public-interest exception based on a foreign-government agreement that provides a blanket exception.
Head of Contracting Activity
May determine that a particular construction material is nonavailable because it is not mined, produced, or manufactured in the United States in sufficient and reasonably available commercial quantities of satisfactory quality. Must ensure the applicable nonavailability determinations and procedures are followed for listed articles when used as construction materials.
Contracting Officer
May allow the contractor to acquire foreign construction materials when an exception applies. Must identify the excepted materials in the contract, apply the unreasonable-cost rules in FAR 25.204 when relevant, and ensure the contract file reflects the basis for the exception.
Agency
Must make the findings supporting the exception available for public inspection. The agency also must ensure its acquisition personnel apply the correct exception authority and maintain the required documentation.
Contractor
May acquire foreign construction materials only when the contracting officer has properly authorized an exception. Must comply with the contract terms identifying the excepted materials and should not assume foreign materials are allowed without written authorization.
Practical Implications
This section is often the path to using foreign materials in construction, but the exception must be tied to a specific material and a specific legal basis; blanket assumptions are a common mistake.
The documentation burden matters: if the exception is not identified in the contract and supported by findings, the acquisition can be vulnerable to protest, audit, or contract administration problems.
Nonavailability and unreasonable cost are different tests. Nonavailability asks whether the material exists in adequate U.S. supply and quality; unreasonable cost depends on the FAR 25.204 price evaluation framework.
The temporary 55 percent domestic-content rule before January 1, 2030 can change the analysis, so contracting officers should check the current date and the exact offer structure before requiring a separate determination.
For larger construction acquisitions, trade agreement coverage may override or modify the Buy American analysis, so officers should not stop at FAR 25.202 without checking subpart 25.4.
Official Regulatory Text
(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 $6,683,000 or more, see subpart 25.4 .