FAR 25.604—Preaward determination concerning the inapplicability of section 1605 of the Recovery Act or the Buy American statute.
Plain-English Summary
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.
Key Rules
Offeror may request determination
An offeror may ask the contracting officer for a preaward determination that section 1605 of the Recovery Act or the Buy American statute is inapplicable to specifically identified construction materials. The request is limited to the materials identified by the offeror and must be made within the time stated in the applicable solicitation clause.
Solicitation controls timing and content
The solicitation tells the offeror when to submit the request and what information and supporting data must be included. Those requirements are found in the applicable paragraphs of 52.225-21 or 52.225-23 for content, and 52.225-22 or 52.225-24 for timing, depending on which clause applies.
Preaward evaluation required
Before award, the contracting officer must evaluate all requests based on the information provided. The contracting officer may also use other readily available information to supplement the record, but the decision must be made before award.
Manufactured material cost test
For manufactured construction material, the contracting officer compares the offered price using foreign manufactured material to the estimated price if all domestic manufactured material were used. If using domestic material would increase the overall offered price by more than 25 percent, the domestic material cost is considered unreasonable.
Unmanufactured material cost test
For unmanufactured construction material, the contracting officer compares the cost of each foreign item to the cost of the domestic item. If the domestic unmanufactured material costs more than 20 percent above the foreign material, the domestic cost is considered unreasonable.
Foreign manufactured material definition matters
For this analysis, foreign manufactured construction material includes material not manufactured in the United States, and material consisting predominantly of iron or steel when the iron or steel is not produced in the United States. That definition affects whether the manufactured-material comparison applies.
Responsibilities
Offeror
May request a preaward determination for specifically identified construction materials and must submit the request within the solicitation deadline. The offeror must provide the information and supporting data required by the applicable solicitation clauses.
Contracting Officer
Must evaluate all timely requests before award using the submitted information and any other readily available information. The contracting officer must apply the correct cost test for manufactured or unmanufactured construction material and determine inapplicability when the applicable threshold is exceeded.
Agency
Must use the proper solicitation clauses that tell offerors when and how to request a determination and what supporting information to provide. The agency must ensure the acquisition process allows the preaward review required by this section.
Practical Implications
This section is a preaward cost-exception process, so missing the solicitation deadline can forfeit the chance to seek relief for a material.
The distinction between manufactured and unmanufactured construction material is critical because the cost thresholds differ: 25 percent versus 20 percent.
Contracting officers should document both the offeror’s submission and any supplemental readily available information used in the decision to reduce protest and audit risk.
Offerors should identify materials precisely and provide complete cost support; vague or incomplete requests are likely to be denied or ignored.
Because the determination is made before award, this rule can materially affect pricing strategy, sourcing decisions, and whether a contractor can lawfully use foreign materials on the project.
Official Regulatory Text
(a) For any acquisition, an offeror may request from the contracting officer a determination concerning the inapplicability of section 1605 of the Recovery Act or the Buy American statute for specifically identified construction materials. The time for submitting the request is specified in the solicitation in paragraph (b) of either 52.225-22 or 52.225-24 , whichever applies. The information and supporting data that must be included in the request are also specified in the solicitation in paragraphs (c) and (d) of either 52.225-21 or 52.225-23 , whichever applies. (b) Before award, the contracting officer must evaluate all requests based on the information provided and may supplement this information with other readily available information. (c) Determination based on unreasonable cost of domestic construction material. (1) Manufactured construction material . The contracting officer must compare the offered price of the contract using foreign manufactured construction material ( i.e. , any construction material not manufactured in the United States, or construction material consisting predominantly of iron or steel and the iron or steel is not produced in the United States) to the estimated price if all domestic manufactured construction material were used. If use of domestic manufactured construction material would increase the overall offered price of the contract by more than 25 percent, then the contracting officer shall determine that the cost of the domestic manufactured construction material is unreasonable (2) Unmanufactured construction material . The contracting officer must compare the cost of each foreign unmanufactured construction material to the cost of domestic unmanufactured construction material. If the cost of the domestic unmanufactured construction material exceeds the cost of the foreign unmanufactured construction material by more than 20 percent, then the contracting officer shall determine that the cost of the domestic unmanufactured construction material is unreasonable.