FAR 52.225-10—Notice of Buy American Requirement-Construction Materials.
Plain-English Summary
FAR 52.225-10 is the solicitation provision that tells offerors how the Buy American statute will be applied in construction acquisitions and what they must do if they want an exception. It works together with FAR 52.225-9, Buy American-Construction Materials, by cross-referencing the definitions of COTS item, construction material, domestic construction material, and foreign construction material, and by requiring offerors to submit the information and supporting data needed to justify any claimed exception. The provision explains when and how an offeror may request a determination that the Buy American statute does not apply, including requests based on unreasonable cost, and it tells the Government how those requests will be evaluated. It also addresses alternate offers using equivalent domestic construction material, the need for separate pricing and documentation, and what happens if the Government denies the requested exception. In practice, this provision is important because it affects bid preparation, pricing strategy, responsiveness in sealed bidding, and whether a contractor must furnish domestic or foreign construction materials after award. Alternate I changes the timing of the inapplicability request by requiring the request to be submitted with the offer rather than before submission, which can materially affect how offerors package their proposals.
Key Rules
Definitions come from 52.225-9
The provision does not restate the core Buy American definitions. Instead, it incorporates the definitions of COTS item, construction material, domestic construction material, and foreign construction material from FAR 52.225-9, so offerors must read both clauses together.
Request exceptions early
An offeror seeking a determination that the Buy American statute is inapplicable should submit the request in time for the Contracting Officer to decide before offers are due. The request must include the information and supporting data required by FAR 52.225-9.
Include data if no prior decision
If the offeror has not already requested and received a determination before submitting its offer, the offer itself must include the required information and supporting data. This prevents an unsupported exception claim from being considered.
Unreasonable cost gets evaluated by add-on
When an offer requests an exception based on the unreasonable cost of domestic construction material, the Government evaluates the offer by adding the applicable percentage adjustment to the price of the foreign construction material, as specified in FAR 52.225-9.
Tie goes to domestic compliance
If evaluation produces a tie between an offeror seeking an unreasonable-cost exception and an offeror that did not seek an exception, the Contracting Officer awards to the offeror that did not request the exception.
Alternate offers are allowed
If the solicitation does not already list the foreign construction material in FAR 52.225-9(b)(2), the offeror may submit an alternate offer based on equivalent domestic construction material. The alternate offer must be separately documented.
Separate forms and price tables required
An alternate offer must include a separate SF 1442 and a separate price comparison table prepared under FAR 52.225-9. This keeps the foreign-material and domestic-material pricing and evaluation records distinct.
Denied exceptions can make offers nonresponsive
If the Government decides the requested exception does not apply, only offers based on equivalent domestic construction material will be evaluated. In sealed bidding, an offer based on the rejected foreign material is nonresponsive; in negotiations, it may still be accepted if revised during discussions.
Responsibilities
Offeror
Determine whether any proposed construction material is foreign or domestic under FAR 52.225-9, decide whether to seek an exception, and submit the required request, supporting data, alternate offer, separate SF 1442, and price comparison table when applicable. If the exception is denied, the offeror must be prepared to furnish domestic construction material or revise the offer if negotiations allow.
Contracting Officer
Review requests for inapplicability, evaluate claimed unreasonable-cost exceptions using the required price adjustment, compare alternate offers, and decide whether a denied exception makes an offer nonresponsive in sealed bidding or whether the offer may be revised in negotiations. The Contracting Officer also must award ties to the offeror that did not request the unreasonable-cost exception.
Government evaluators
Apply the solicitation’s evaluation method consistently, including the percentage add-on for foreign construction material when an unreasonable-cost exception is claimed, and ensure alternate offers and supporting documentation are evaluated under the correct Buy American framework.
Agency
Include the provision in covered construction solicitations as prescribed, and use Alternate I when the acquisition strategy requires the request for inapplicability to be submitted with the offer rather than in advance.
Practical Implications
Offerors need to identify Buy American issues early, because missing documentation can prevent an exception from being considered or can force a last-minute change to domestic materials.
The provision affects pricing strategy: a foreign-material exception based on unreasonable cost may still lose after the evaluation add-on is applied, even if the base price looks lower.
In sealed bidding, a failed exception request can be fatal to an offer if the bid is based on foreign material, because the bid may be rejected as nonresponsive.
Alternate offers are useful only if they are packaged correctly; a missing separate SF 1442 or price comparison table can create evaluation problems or disqualify the alternate.
Contractors should coordinate closely with suppliers and estimators to document material origin, equivalency, and cost comparisons, since the burden of supporting the exception rests on the offeror.
Official Regulatory Text
As prescribed in 25.1102 (b)(1) , insert the following provision: Notice of Buy American Requirement-Construction Materials (May 2014) (a) Definitions . "Commercially available off-the-shelf (COTS) item," "construction material," "domestic construction material," and "foreign construction material," as used in this provision, are defined in the clause of this solicitation entitled "Buy American-Construction Materials" (Federal Acquisition Regulation (FAR) clause 52.225-9 ). (b) Requests for determinations of inapplicability . An offeror requesting a determination regarding the inapplicability of the Buy American statute should submit the request to the Contracting Officer in time to allow a determination before submission of offers. The offeror shall include the information and applicable supporting data required by paragraphs (c) and (d) of the clause at FAR 52.225-9 in the request. If an offeror has not requested a determination regarding the inapplicability of the Buy American statute before submitting its offer, or has not received a response to a previous request, the offeror shall include the information and supporting data in the offer. (c) Evaluation of offers. (1) The Government will evaluate an offer requesting exception to the requirements of the Buy American statute, based on claimed unreasonable cost of domestic construction material, by adding to the offered price the appropriate percentage of the cost of such foreign construction material, as specified in paragraph (b)(3)(i) of the clause at FAR 52.225-9 . (2) If evaluation results in a tie between an offeror that requested the substitution of foreign construction material based on unreasonable cost and an offeror that did not request an exception, the Contracting Officer will award to the offeror that did not request an exception based on unreasonable cost. (d) Alternate offers. (1) When an offer includes foreign construction material not listed by the Government in this solicitation in paragraph (b)(2) of the clause at FAR 52.225-9 , the offeror also may submit an alternate offer based on use of equivalent domestic construction material. (2) If an alternate offer is submitted, the offeror shall submit a separate Standard Form 1442 for the alternate offer, and a separate price comparison table prepared in accordance with paragraphs (c) and (d) of the clause at FAR 52.225-9 for the offer that is based on the use of any foreign construction material for which the Government has not yet determined an exception applies. (3) If the Government determines that a particular exception requested in accordance with paragraph (c) of the clause at FAR 52.225-9 does not apply, the Government will evaluate only those offers based on use of the equivalent domestic construction material, and the offeror shall be required to furnish such domestic construction material. An offer based on use of the foreign construction material for which an exception was requested- (i) Will be rejected as nonresponsive if this acquisition is conducted by sealed bidding; or (ii) May be accepted if revised during negotiations. (End of Provision) Alternate I (May 2014) . As prescribed in 25.1102 (b)(2), substitute the following paragraph (b) for paragraph (b) of the basic provision: (b) Requests for determinations of inapplicability . An offeror requesting a determination regarding the inapplicability of the Buy American statute shall submit the request with its offer, including the information and applicable supporting data required by paragraphs (c) and (d) of the clause at FAR 52.225-9 .