FAR 25.205—Postaward determinations.
Plain-English Summary
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.
Key Rules
Late requests need justification
If a contractor asks after award for a determination that the Buy American statute does not apply, the contractor must explain why the issue could not have been raised before award or why the need for the determination was not reasonably foreseeable. The contracting officer may deny the request if the contractor should have made it earlier.
Evaluate using required information
The contracting officer must base the postaward evaluation on the information required by the applicable clause at 52.225-9 or 52.225-11, including the required paragraphs, and may also use other readily available information. This keeps the decision grounded in the same type of evidence that would have supported a preaward request.
Postaward exception requires contract action
If an exception under 25.202(a) is determined after award, the contracting officer must negotiate adequate consideration and modify the contract to permit use of the foreign construction material. The contract cannot simply be treated as informally changed; the exception must be documented and incorporated into the contract.
Adequate consideration must be negotiated
When the exception is based on the unreasonable price of domestic construction material, adequate consideration must be at least the price differential established in 25.202(a), or it must be determined in accordance with agency procedures. The government should not waive the economic value associated with the change.
Applies only after award
This section is specifically about postaward determinations, so it addresses situations where the need for an exception arises or is asserted after contract award. It does not replace the normal preaward process for Buy American determinations.
Responsibilities
Contractor
If seeking a postaward determination, explain why the request was not made before award or why the need was not reasonably foreseeable. Provide the information required by the applicable clause and any other supporting facts needed for the contracting officer’s review.
Contracting Officer
Review the contractor’s justification, decide whether the late request should be considered, evaluate the request using the required clause information and other readily available information, and deny the request if the contractor should have raised it before award. If an exception applies after award, negotiate adequate consideration and modify the contract.
Agency
Follow any agency procedures for determining adequate consideration when the exception is based on unreasonable domestic price. Ensure internal processes support consistent handling of postaward Buy American determinations and contract modifications.
Practical Implications
Contractors should raise Buy American issues as early as possible; waiting until after award creates a higher burden and may lead to denial.
A postaward request is not just a technical correction — the contractor must show why the issue was not foreseeable and provide supporting documentation.
Contracting officers should not rely on informal assurances; they need the clause-required information and a documented basis for the decision.
If an exception is approved after award, the contract must be formally modified and the government must receive adequate consideration, especially where price is the basis for the exception.
Common pitfalls include failing to document foreseeability, submitting incomplete support, and overlooking the need to negotiate and record the contract change after the exception is granted.
Official Regulatory Text
(a) If a contractor requests a determination regarding the inapplicability of the Buy American statute 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 statute 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. (c) If a determination, under 25.202 (a), is made after contract award that an exception to the Buy American statute 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.