Exceptions
FAR 25.103 allows exceptions to Buy American requirements when domestic products are unavailable, too costly, or when public interest or specific needs justify foreign acquisitions, but strict procedures and documentation are required.
Overview
FAR 25.103 outlines specific exceptions to the Buy American statute, allowing contracting officers to acquire foreign end products under certain circumstances. These exceptions include situations where domestic preference is inconsistent with public interest, when domestic products are not available in sufficient quantity or quality, when the cost of domestic products is unreasonable, for commissary resale, and for information technology that is a commercial product. The section details the procedures for class and individual nonavailability determinations, including requirements for market research, solicitation clauses, and documentation. It also clarifies when written determinations are not required and references related FAR sections for further guidance.
Key Rules
- Public Interest Exception
- The agency head can waive Buy American requirements if domestic preference is against public interest, including under certain international agreements.
- Nonavailability Exception
- If domestic products are not available in sufficient quantity or quality, foreign products may be acquired. This includes both class and individual determinations, with specific procedures for market research and documentation.
- Unreasonable Cost Exception
- If domestic products are unreasonably expensive, foreign products may be purchased, following procedures in FAR 25.106 and subpart 25.5.
- Resale Exception
- Foreign products may be purchased for commissary resale.
- Information Technology Exception
- Buy American restrictions do not apply to commercial IT products acquired with FY 2004 or later funds.
Responsibilities
- Contracting Officers: Must identify and document applicable exceptions, conduct market research, include appropriate clauses in solicitations, and submit required documentation for determinations.
- Contractors: Must comply with solicitation requirements and provide information on domestic availability if requested.
- Agencies: Oversee determinations, maintain documentation, and ensure compliance with reporting and procedural requirements.
Practical Implications
- This section provides flexibility in procurement when domestic products are unavailable, too costly, or when public interest or specific resale/IT needs exist.
- Proper documentation and adherence to procedures are critical to avoid noncompliance.
- Common pitfalls include inadequate market research, missing documentation, or failure to include required solicitation clauses.