FAR 25.6—Subpart 25.6

Scope of subpart.

FAR 25.600 defines the scope of Subpart 25.6 and tells readers when its special domestic-preference rules apply to construction materials. It explains that the subpart implements section 1605 of Division A of the American Recovery and Reinvestment Act of 2009 (Recovery Act) for manufactured construction material, and it applies the Buy American statute, 41 U.S.C. chapter 83, to unmanufactured construction material. In practical terms, this means the subpart is not a general Buy American rule for all construction work; it is a Recovery Act-specific framework that governs construction projects funded with Recovery Act appropriations or other Recovery Act-provided funds. The section matters because it identifies the legal source of the requirements, distinguishes between manufactured and unmanufactured construction material, and limits the subpart’s reach to covered Recovery Act-funded projects. Contractors and contracting officers must use this scope statement to determine whether the special sourcing, evaluation, and compliance rules in the subpart apply before making material sourcing decisions or award determinations.

Definitions.

FAR 25.601 defines the core terms used in Subpart 25.6, which governs domestic preference rules for construction materials. This section explains what counts as domestic construction material, foreign construction material, manufactured construction material, unmanufactured construction material, public building or public work, and Recovery Act designated country. It also ties those definitions to the Buy American statute and, for certain manufactured construction materials, to section 1605 of the Recovery Act. In practice, these definitions determine whether a contractor may use a material, whether a material qualifies for a domestic preference exception, and how contracting officers evaluate compliance on construction contracts. The definition of public building or public work is especially important because it identifies the types of projects covered by these rules, including a broad list of infrastructure and facility types. The Recovery Act designated country definition matters when Recovery Act requirements apply, because it identifies countries treated favorably under those rules. Overall, this section is foundational: it does not impose the preference itself, but it supplies the terms needed to apply the preference correctly.

Policy.

Exceptions.

FAR 25.603 explains when a contracting officer may permit foreign construction materials despite the normal domestic-preference rules, and what must happen when an exception is used. It covers four main exception bases: nonavailability of a construction material in sufficient and reasonably available commercial quantities of satisfactory quality, unreasonable cost of domestic material, inconsistency with the public interest, and impracticability for unmanufactured construction material under the Buy American statute. It also addresses the required determination and documentation process, including listing excepted materials in the contract and, for Recovery Act projects, publishing a Federal Register notice with specified content and timing. In addition, it ties these exceptions to the trade agreements rules for construction contracts at or above the applicable threshold, and clarifies that Caribbean Basin Countries are not treated as designated countries for purposes of applying section 1605 of the Recovery Act to manufactured construction material. In practice, this section tells contracting officers when they can approve foreign materials, who must make the determination, what paperwork and public notice are required, and how trade agreement coverage affects evaluation of offers.

Preaward determination concerning the inapplicability of section 1605 of the Recovery Act or the Buy American statute.

FAR 25.604 explains how an offeror can ask for a preaward determination that the Buy American statute or section 1605 of the Recovery Act does not apply to specifically identified construction materials, and how the contracting officer must evaluate that request before award. It ties the request process to the solicitation provisions in 52.225-21, 52.225-22, 52.225-23, and 52.225-24, including the required timing, supporting information, and data the offeror must submit. The section also sets out the price-comparison tests the contracting officer uses to decide whether domestic construction material is “unreasonable” in cost: a 25 percent threshold for manufactured construction material and a 20 percent threshold for unmanufactured construction material. In practice, this provision gives offerors a formal path to seek an exception based on cost, while requiring contracting officers to make a documented, preaward evaluation using the offeror’s submission and any other readily available information. It matters because it can determine whether foreign construction materials may be used, affect pricing and competition, and shape compliance risk in federally funded construction acquisitions.

Evaluating offers of foreign construction material.

FAR 25.605 explains how contracting officers must evaluate offers when a contractor requests an exception to Buy American-style domestic construction material requirements because comparable domestic material is unreasonably costly. It covers the specific evaluation factors that must be added to the offered price for foreign manufactured construction material and foreign unmanufactured construction material, how those factors affect best-value source selection when non-price factors are used, how to break ties when offers are equal in price, and the option for offerors to submit alternate offers using equivalent domestic material to reduce the risk of rejection. It also addresses a post-award administrative step: if the awardee proposed foreign construction material that was not already listed in the solicitation’s applicable clause, the contracting officer must add those excepted materials to the contract clause. In practice, this section ensures that exceptions for unreasonable domestic cost are not treated as a free pass; instead, the Government still evaluates the foreign-content offer with a price penalty to preserve domestic preference policy while allowing flexibility when domestic material is too expensive.

Postaward determinations.

FAR 25.606 explains what happens when a contractor asks, after award, for a determination that the Buy American statute or section 1605 of the Recovery Act does not apply to a particular construction material. It covers three main topics: the contractor’s obligation to justify why the request was not made before award or why the need was not reasonably foreseeable; the contracting officer’s duty to evaluate the request using the information required by the applicable solicitation/contract clause at 52.225-21 or 52.225-23 and any other readily available information; and the postaward remedy when an exception is approved under 25.603(a). In practice, this section is about preventing contractors from bypassing domestic preference requirements through late requests, while still allowing relief when a valid exception truly exists. It also protects the Government by requiring the contracting officer to obtain adequate consideration before allowing foreign construction material after award, especially when the exception is based on the unreasonable cost of domestic material. For contractors, this section means late requests are possible but heavily scrutinized; for contracting officers, it means careful documentation, fact-based review, and contract modification are required before foreign material can be used.

Noncompliance.

FAR 25.607 tells the contracting officer what to do when there is a possible or actual violation of the Buy American statute or section 1605 of the Recovery Act involving foreign construction material. It covers how to review allegations of noncompliance, when to notify the contractor and request a response, and what corrective or enforcement actions may follow if unauthorized foreign construction material was used. The section also addresses the option to process a formal inapplicability determination under FAR 25.606, whether to require removal and replacement of the material, and when the contracting officer may decide in writing to allow the material to remain because removal would be impracticable, cause undue delay, or harm the Government’s interests. It makes clear that a decision to retain the material is not the same as finding an exception applies, and it preserves the Government’s rights to suspend or debar, reduce the contract price, or terminate for default. Finally, it requires the contracting officer to consider more serious remedies, including default termination and referral to the suspension and debarment official, and to refer suspected fraud to the appropriate investigative or inspector general officials. In practice, this section is the enforcement roadmap for Buy American/Recovery Act noncompliance on construction contracts.