FAR 25.606—Postaward determinations.
Plain-English Summary
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.
Key Rules
Late requests need justification
If the contractor asks for a postaward determination of inapplicability, it must explain why the issue was not 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.
Review uses required information
The contracting officer must evaluate the request using the information required by paragraphs (c) and (d) of the applicable clause at 52.225-21 or 52.225-23, plus any other readily available information. This ensures the decision is based on the record and not on unsupported assertions.
Postaward exception requires modification
If an exception under 25.603(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 changed without a formal modification.
Unreasonable cost sets minimum consideration
When the exception is based on the unreasonable cost of domestic construction material, adequate consideration must be at least the differential established in 25.605(a). This prevents the Government from paying less than the cost impact that justified the exception.
Section applies to both statutes
The rule covers determinations of inapplicability under both section 1605 of the Recovery Act and the Buy American statute. The same postaward process applies regardless of which domestic preference authority is at issue.
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 support the claimed exception with facts.
Contracting Officer
Decide whether the contractor has adequately justified a late request, evaluate the request using the clause-required information and other readily available information, and deny requests that should have been made before award. If an exception is approved after award, negotiate adequate consideration and modify the contract before allowing foreign material.
Agency
Ensure contracting personnel apply the domestic preference rules consistently and maintain the documentation needed to support postaward determinations and contract modifications.
Practical Implications
Contractors should raise Buy American or Recovery Act exception issues before award whenever possible; waiting until after award creates a higher burden and a real risk of denial.
Contracting officers should look for evidence that the need was foreseeable at the time of bidding or proposal submission, because a weak explanation for delay is a basis to reject the request.
The decision must be grounded in the solicitation/contract clause information and readily available facts, so incomplete contractor submissions can slow or undermine the request.
If an exception is approved after award, the contracting officer must not allow the foreign material until the contract is formally modified and adequate consideration is negotiated.
When the exception is based on unreasonable domestic cost, the minimum consideration floor is the price differential under 25.605(a), so officers should verify the calculation carefully.
Official Regulatory Text
(a) If a contractor requests a determination regarding the inapplicability of section 1605 of the Recovery Act or 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 section 1605 of the Recovery Act or the Buy American statute made after contract award on information required by paragraphs (c) and (d) of the applicable clause at 52.225-21 or 52.225-23 and/or other readily available information. (c) If a determination, under 25.603 (a), is made after contract award that an exception to section 1605 of the Recovery Act or 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 cost of a domestic construction material, adequate consideration is at least the differential established in 25.605 (a).