25.1102
Acquisition of construction
For U.S. construction contracts, clause selection under FAR 25.1102 turns on funding source and dollar threshold—especially the $6,683,000 and $13,749,689 breakpoints—so using the wrong Buy American or trade-agreement clause can make the solicitation noncompliant.
Overview
- FAR 25.1102 prescribes which Buy American and trade agreement solicitation provisions and contract clauses must be used for U.S. construction acquisitions, based primarily on funding source and estimated contract value.
- Its purpose is to ensure contracting officers apply the correct clause set for domestic preference requirements, including special handling for Recovery Act-funded projects and contracts using alternate domestic content thresholds.
Key Rules
- Construction under $6,683,000 (non-Recovery Act)
- Insert 52.225-9, Buy American—Construction Materials, and 52.225-10, Notice of Buy American Requirement—Construction Materials for construction performed in the United States. Foreign construction materials excepted from the Buy American statute must be listed in the clause, and Alternate I to the provision may be used if there is not enough time to process an exception determination before offers are due.
- Construction at or above $6,683,000 (non-Recovery Act)
- Insert 52.225-11 and 52.225-12 for construction in the United States. For acquisitions from $6,683,000 to less than $13,749,689, use the applicable Alternates. Excepted foreign materials must be listed, subject to designated-country limitations.
- Alternate domestic content thresholds
- When authorized under 25.201(c), use the applicable alternates and insert the domestic content threshold that applies for the full performance period: 60% for awards estimated in 2022–2023, 65% for 2024–2028, and 75% after 2028.
- Recovery Act-funded construction
- Use 52.225-21 through 52.225-24, with appropriate alternates, instead of the standard clauses and provisions. If only certain line items are covered, identify those line items in the schedule. For 52.225-23, list excepted foreign construction materials according to whether the basic clause or Alternate I applies.
Responsibilities
- Contracting Officers: Select the correct clause/provision set based on funding source and dollar threshold; include required alternates; list excepted foreign materials; insert any higher evaluation percentage approved by the agency head; identify covered line items for partial Recovery Act applicability.
- Contractors: Review solicitations for the applicable domestic preference clause, identify whether foreign construction materials may qualify under listed exceptions, and ensure offers and performance align with the stated domestic content test.
- Agencies: Make determinations on higher evaluation percentages, authorize alternate domestic content tests when appropriate, and ensure Recovery Act requirements are properly implemented.
Practical Implications
- This section matters because the wrong clause selection can create noncompliant solicitations, improper evaluation of foreign materials, or performance disputes over domestic content.
- Contractors should pay close attention to whether the project is U.S.-performed construction, whether the value crosses $6,683,000 or $13,749,689, and whether Recovery Act funds are involved.
- Common pitfalls include using the wrong alternate, failing to list excepted foreign materials, and overlooking line-item-specific Recovery Act applicability.