FAR 52.225-22—Notice of Required Use of American Iron, Steel, and Manufactured Goods-Buy American Statute-Construction Materials.
Plain-English Summary
FAR 52.225-22 is the solicitation provision that tells offerors how to respond when a construction procurement is subject to the Buy American statute and, where applicable, section 1605 of the Recovery Act. It works together with FAR 52.225-21, which contains the operative definitions, domestic-content requirements, exception process, and supporting-data requirements for iron, steel, manufactured goods, and other construction materials. This provision addresses the definitions by cross-reference, the timing and content of requests for determinations of inapplicability, the evaluation of offers when an exception for unreasonable cost is requested, the price adjustments the Government applies in evaluation, the treatment of best-value procurements, the tie-break preference rule, and the use of alternate offers when foreign construction material is proposed. It also explains what happens if the Government denies an exception request, including rejection as nonresponsive in sealed bidding or possible acceptance of a revised offer in negotiations. In practice, this provision is important because it tells contractors exactly how to preserve an exception request, how to structure alternate domestic offers, and how the Government will compare prices when foreign construction material is involved. For contracting officers, it provides the evaluation framework and the procedural consequences of exception determinations, helping ensure consistent application of domestic-preference rules in construction acquisitions.
Key Rules
Definitions come from 52.225-21
The provision does not restate the core material definitions; instead, it incorporates the definitions of construction material, domestic construction material, foreign construction material, manufactured construction material, steel, and unmanufactured construction material from FAR 52.225-21. Offerors must read both clauses together to understand what items are covered.
Exception requests must be timely
An offeror seeking a determination that the Recovery Act section 1605 requirement or the Buy American statute does not apply should submit the request early enough for the contracting officer to decide before offers are due. The request must include the information and supporting data required by FAR 52.225-21.
Late or unresolved requests go in the offer
If the offeror has not obtained a determination before submitting the offer, or has not received a response to an earlier request, the offer itself must include the required information and supporting data. This preserves the issue for evaluation and prevents the offeror from omitting necessary documentation.
Price evaluation penalties apply to exceptions
If the Government finds that an unreasonable-cost exception applies, it evaluates the offer by adding a penalty to the offered price: 25 percent of the offered price when the exception involves foreign manufactured construction material, and 20 percent of the cost of foreign unmanufactured construction material. These adjustments are used only for evaluation, not as actual contract price changes.
Best-value evaluations use adjusted prices
When award is based on factors other than price alone, the contracting officer applies the same evaluation adjustments and uses the evaluated price in the best-value tradeoff. This means a foreign-material offer may be less competitive even if its base price is lower.
Tie goes to domestic material
If two or more offers are equal in price and paragraph (c)(2) does not apply, the contracting officer gives preference to an offer that does not include foreign construction material excepted because domestic material was found unreasonably costly. This creates a preference for compliant domestic-content offers in a price tie.
Alternate domestic offers are allowed
If an offer includes foreign construction material not already identified by the Government in the solicitation, the offeror may submit an alternate offer using equivalent domestic construction material. The alternate offer must be separate and must include its own Standard Form 1442 and a separate cost comparison table prepared under FAR 52.225-21.
Denied exceptions can make foreign offers unacceptable
If the Government decides the requested exception does not apply, only offers based on equivalent domestic construction material will be evaluated, and the offeror must furnish domestic material. In sealed bidding, the foreign-material offer is rejected as nonresponsive; in negotiated procurements, the offer may still be accepted if revised during negotiations.
Alternate I changes timing
Under Alternate I, the request for a determination of inapplicability must be submitted with the offer rather than before submission. The request still must include the information and supporting data required by FAR 52.225-21.
Responsibilities
Offeror
Identify whether the solicitation is subject to the Buy American statute and/or Recovery Act section 1605 requirements, determine whether any foreign construction material is proposed, and submit any request for a determination of inapplicability with the required supporting information. If no pre-offer determination has been received, include the required data in the offer, and if using foreign material not listed by the Government, prepare any alternate domestic offer and separate cost comparison documentation.
Contracting Officer
Receive and decide requests for determinations of inapplicability, apply the evaluation adjustments when an unreasonable-cost exception is found, use the evaluated price in best-value source selection, apply the tie-break preference when appropriate, and determine whether a foreign-material offer is nonresponsive in sealed bidding or may be revised in negotiations if an exception is denied.
Government/Agency
Evaluate whether the statutory exception for unreasonable cost applies, identify any foreign construction material listed in the solicitation, and ensure the solicitation and evaluation process reflect the applicable domestic-preference requirements and alternate-offer procedures.
Practical Implications
Contractors should not wait until proposal submission to think about Buy American issues; if an exception is needed, the request and supporting data must be ready early, or included with the offer if no decision has been received.
The evaluation penalties are significant and can erase a price advantage, so a low base price using foreign material may still lose after the 20 percent or 25 percent adjustment is applied.
Offerors proposing foreign material should check whether the solicitation already identified that material; if not, they may need a separate alternate domestic offer and separate pricing documentation.
If the Government denies the exception, a sealed-bid offer using foreign material can be rejected outright as nonresponsive, which is a major compliance risk.
Contracting officers should be careful to distinguish between actual contract pricing and evaluation pricing, and to apply the correct rule depending on whether the procurement is sealed bidding or negotiated and whether best-value factors are used.
Official Regulatory Text
As prescribed in 25.1102 (e) , insert the following provision: Notice of Required Use of American Iron, Steel, and Manufactured Goods-Buy American Statute-Construction Materials (Jan 2021) (a) Definitions . "Construction material," "domestic construction material," "foreign construction material," "manufacturedconstructionmaterial," "steel," and "unmanufactured construction material," as used in this provision, are defined in the clause of this solicitation entitled "Required Use of Iron, Steel, and Manufactured Goods-Buy American statute-Construction Materials" (Federal Acquisition Regulation (FAR) clause 52.225-21 ). (b) Requests for determinations of inapplicability . An offeror requesting a determination regarding the inapplicability of section 1605 of the American Recovery and Reinvestment Act of 2009 (Pub. L. 111-5) (Recovery Act) or 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 52.225-21 in the request. If an offeror has not requested a determination regarding the inapplicability of section 1605 of the Recovery Act or 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) If the Government determines that an exception based on unreasonable cost of domestic construction material applies in accordance with FAR 25.604 , the Government will evaluate an offer requesting exception to the requirements of section 1605 of the Recovery Act or the Buy American statute by adding to the offered price of the contract- (i) 25 percent of the offered price of the contract, if foreign manufactured construction material is incorporated in the offer based on an exception for unreasonable cost of comparable manufactured domestic construction material; and (ii) 20 percent of the cost of foreign unmanufactured construction material included in the offer based on an exception for the unreasonable cost of comparable domestic unmanufactured construction material. (2) If the solicitation specifies award on the basis of factors in addition to cost or price, the Contracting Officer will apply the evaluation factors as specified in paragraph (c)(1) of this provision and use the evaluated price in determining the offer that represents the best value to the Government. (3) Unless paragraph (c)(2) of this provision applies, if two or more offers are equal in price, the Contracting Officer will give preference to an offer that does not include foreign construction material excepted at the request of the Offeror on the basis of unreasonable cost of comparable domestic construction material. (d) Alternate offers. (1) When an offer includes foreign construction material not listed by the Government in this solicitation in paragraph (b)(3) of the clause at FAR 52.225-21 , 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 cost comparison table prepared in accordance with paragraphs (c) and (d) of the clause at FAR 52.225-21 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 52.225-21 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 (e), 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 section 1605 of the American Recovery and Reinvestment Act of 2009 (Pub. L. 111-5) (Recovery Act) or 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 52.225-21 .