FAR 52.225-12—Notice of Buy American Requirement-Construction Materials Under Trade Agreements.
Plain-English Summary
FAR 52.225-12 is the solicitation provision that tells offerors how to handle Buy American Act issues for construction materials when trade agreements may apply. It explains the relevant definitions by cross-reference to FAR 52.225-11, how and when an offeror may request a determination that the Buy American statute does not apply, what information must be submitted with that request, how the Government will evaluate offers that seek an exception based on unreasonable cost, and how tie situations are resolved. It also addresses alternate offers when foreign construction material is proposed, including the need for a separate Standard Form 1442 and a separate price comparison table. The provision further explains what happens if the Government denies the requested exception, including rejection as nonresponsive in sealed bidding or possible acceptance if revised during negotiations. Alternate I changes the timing of the inapplicability request so it must be submitted with the offer, while Alternate II adds special treatment for Bahraini, Mexican, and Omani construction material and limits the alternate-offer rules accordingly. In practice, this provision is important because it controls how contractors preserve eligibility to offer foreign materials, how contracting officers evaluate price impacts and responsiveness, and how trade agreement country materials are treated differently from other foreign materials.
Key Rules
Definitions come from 52.225-11
This provision does not restate the core material definitions; instead, it incorporates the definitions of COTS item, construction material, designated country construction material, domestic construction material, foreign construction material, and, under Alternate II, Bahraini, Mexican, or Omani construction material from FAR 52.225-11. Offerors must read both provisions together to understand what materials are covered.
Request inapplicability early
An offeror seeking a determination that the Buy American statute does not apply should submit the request early enough for the Contracting Officer to decide before offers are due. If no prior request was made, or no response was received, the offeror must include the request information and supporting data in the offer.
Supporting data is required
The request must include the information and supporting data required by FAR 52.225-11 paragraphs (c) and (d). This means the offeror must provide enough detail for the Government to evaluate whether an exception applies, especially where the claim is based on unreasonable cost.
Unreasonable-cost offers get price evaluated
If an offer seeks an exception because domestic construction materials are allegedly unreasonably costly, the Government evaluates the offer by adding the applicable percentage adjustment to the foreign material price, as specified in FAR 52.225-11(b)(4)(i). This can change the apparent low offeror even if the base price is lower.
Tie goes to compliant offer
If evaluation produces a tie between an offeror that requested the unreasonable-cost exception and an offeror that did not request an exception, the Contracting Officer awards to the offeror that did not request the exception. The rule favors the offer that does not rely on the exception.
Alternate offers are allowed for some foreign materials
When an offer includes foreign construction material not listed by the Government in the solicitation, the offeror may submit an alternate offer using equivalent domestic or designated country construction material. Under Alternate II, this alternate-offer option is narrowed so it does not apply to foreign construction material from designated countries other than Bahrain, Mexico, or Oman.
Separate forms and price tables are required
If an alternate offer is submitted, the offeror must provide a separate SF 1442 for the alternate offer and a separate price comparison table prepared under FAR 52.225-11. This keeps the foreign-material offer and the compliant alternate offer distinct for evaluation purposes.
Denied exceptions affect responsiveness
If the Government determines the requested exception does not apply, only offers based on equivalent domestic or designated country construction material will be evaluated, and the offeror must furnish those materials. In sealed bidding, an offer based on the rejected foreign material is nonresponsive; in negotiated acquisitions, it may still be accepted if revised during negotiations.
Alternate II adds special country treatment
Alternate II adds a definition for Bahraini, Mexican, or Omani construction material and modifies the alternate-offer rules so those materials are treated differently from other foreign materials. This reflects the special trade-agreement treatment applicable to those countries.
Responsibilities
Offeror
Determine whether proposed construction materials are domestic, designated country, or other foreign materials; request any Buy American inapplicability determination in time for the contracting officer to act; include all required information and supporting data; submit alternate offers when permitted; and provide separate SF 1442s and price comparison tables when required.
Contracting Officer
Receive and decide requests for inapplicability; evaluate offers using the applicable price adjustment when unreasonable-cost exceptions are claimed; resolve ties in favor of the offeror that did not request the exception; determine whether alternate offers are acceptable; and reject nonresponsive offers in sealed bidding when the exception is denied.
Government/Evaluators
Apply the correct evaluation adjustment from FAR 52.225-11, compare alternate and base offers consistently, and ensure that only eligible offers using acceptable construction materials are considered when an exception is denied.
Agency/Solicitation Drafter
Insert the correct version of the provision and the appropriate alternate, ensure the solicitation identifies any listed foreign construction materials in FAR 52.225-11(b)(3), and align the provision with the applicable trade agreement and acquisition method.
Practical Implications
Contractors should not wait until proposal submission to think through Buy American issues; if they need an exception, they should build the supporting record early so the contracting officer can rule before offers are due.
A lower base price using foreign materials may not win after evaluation because the Government adds the required percentage adjustment for unreasonable-cost claims.
If the Government denies the exception, a sealed-bid offer using the foreign material can be thrown out as nonresponsive, so offerors need a compliant backup strategy.
Alternate offers are administratively burdensome because they require separate SF 1442s and separate price comparison tables; missing either document can create evaluation problems.
Alternate II requires special attention to Bahrain, Mexico, and Oman, because the treatment of those materials is not the same as other foreign or designated-country materials under the basic provision.
Official Regulatory Text
As prescribed in 25.1102 (d)(1) , insert the following provision: Notice of Buy American Requirement-Construction Materials Under Trade Agreements (May 2014) (a) Definitions. "Commercially available off-the-shelf (COTS) item," "construction material," "designated country 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 Under Trade Agreements" (Federal Acquisition Regulation (FAR) clause 52.225-11 ). (b) Requests for determination 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 FAR clause 52.225-11 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 materials, by adding to the offered price the appropriate percentage of the cost of such foreign construction material, as specified in paragraph (b)(4)(i) of FAR clause 52.225-11 . (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, other than designated country construction material, that is not listed by the Government in this solicitation in paragraph (b)(3) of FAR clause 52.225-11 , the offeror also may submit an alternate offer based on use of equivalent domestic or designated country 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 FAR clause 52.225-11 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 FARclause 52.225-11 does not apply, the Government will evaluate only those offers based on use of the equivalent domestic or designated country construction material, and the offeror shall be required to furnish such domestic or designated country 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 (d)(2), substitute the following paragraph (b) for paragraph (b) of the basic provision: (b) Requests for determination 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 FAR clause 52.225-11 . Alternate II ( Nov 2023). As prescribed in 25.1102 (d)(3), add the definition of "Bahraini, Mexican, or Omani construction material" to paragraph (a) and substitute the following paragraph (d) for paragraph (d) of the basic provision: (d) Alternate offers . (1) When an offer includes foreign construction material, except foreign construction material from a designated country other than Bahrain, Mexico, or Oman that is not listed by the Government in this solicitation in paragraph (b)(3) of FAR clause 52.225-11 , the offeror also may submit an alternate offer based on use of equivalent domestic or designated country construction material other than Bahraini, Mexican, or Omani 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 FAR clause 52.225-11 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 FAR clause 52.225-11 does not apply, the Government will evaluate only those offers based on use of the equivalent domestic or designated country construction material other than Bahraini, Mexican, or Omani 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.