25.1102 Acquisition of construction
Source: FAR 25.1102 on acquisition.gov
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.
When using funds other than those appropriated under the American Recovery and Reinvestment Act of 2009 (Pub. L. 111-5) (Recovery Act), follow the prescriptions in paragraphs (a) through (d) of this section. Otherwise, follow the prescription in paragraph (e).
(a) Insert the clause at 52.225-9, Buy American-Construction Materials, in solicitations and contracts for construction that is performed in the United States valued at less than $6,683,000.
(1) List in paragraph (b)(2) of the clause all foreign construction material excepted from the requirements of the Buy American statute.
(2) If the head of the agency determines that a higher percentage is appropriate, substitute the higher evaluation percentage in paragraph (b)(3)(i) of the clause.
(3) The contracting officer shall use the clause with its Alternate I to reflect the domestic content threshold that will apply to the entire period of performance, when the senior procurement executive allows for application of an alternate domestic content test for the contract in accordance with 25.201(c). For contracts that the contracting officer estimates will be awarded in calendar year 2022 or 2023, the contracting officer shall insert “60” in paragraph (1)(ii)(A) of the definition of “domestic construction material.” For contracts that the contracting officer estimates will be awarded in calendar year 2024, 2025, 2026, 2027, or 2028, the contracting officer shall insert “65”. For contracts that the contracting officer estimates will be awarded after calendar year 2028 the contracting officer shall insert “75”.
(b)
(1) Insert the provision at 52.225-10, Notice of Buy American Requirement-Construction Materials, in solicitations containing the clause at 52.225-9.
(2) If insufficient time is available to process a determination regarding the inapplicability of the Buy American statute before receipt of offers, use the provision with its Alternate I.
(c) Insert the clause at 52.225-11, Buy American-Construction Materials under Trade Agreements, in solicitations and contracts for construction that is performed in the United States valued at $6,683,000 or more.
(1) List in paragraph (b)(3) of the clause all foreign construction material excepted from the requirements of the Buy American statute, other than designated country construction material.
(2) If the head of the agency determines that a higher percentage is appropriate, substitute the higher evaluation percentage in paragraph (b)(4)(i) of the clause.
(3) For acquisitions valued at $6,683,000 or more, but less than $13,749,689, use the clause with its Alternate I. List in paragraph (b)(3) of the clause all foreign construction material excepted from the requirements of the Buy American statute, unless the excepted foreign construction material is from a designated country other than Bahrain, Mexico, and Oman.
(4) The contracting officer shall use the clause with its Alternate II to reflect the domestic content threshold that will apply to the entire period of performance, when the senior procurement executive allows for application of an alternate domestic content test for the contract in accordance with 25.201(c). For contracts that the contracting officer estimates will be awarded in calendar year 2022 or 2023, the contracting officer shall insert “60” in paragraph (1)(ii)(A) of the definition of “domestic construction material.” For contracts that the contracting officer estimates will be awarded in calendar year 2024, 2025, 2026, 2027, or 2028, the contracting officer shall insert “65”. For contracts that the contracting officer estimates will be awarded after calendar year 2028 the contracting officer shall insert “75”.
(d)
(1) Insert the provision at 52.225-12, Notice of Buy American Requirement-Construction Materials under Trade Agreements, in solicitations containing the clause at 52.225-11.
(2) If insufficient time is available to process a determination regarding the inapplicability of the Buy American statute before receipt of offers, use the provision with its Alternate I.
(3) For acquisitions valued at $6,683,000 or more, but less than $13,749,689, use the provision with its Alternate II.
(e)
(1) When using funds appropriated under the Recovery Act for construction, use provisions and clauses 52.225-21, 52.225-22, 52.225-23, or 52.225-24 (with appropriate Alternates) in lieu of the provisions and clauses 52.225-9, 52.225-10, 52.225-11, or 52.225-12 (with appropriate Alternates), respectively, that would be applicable as prescribed in paragraphs (a) through (d) of this section if Recovery Act funds were not used.
(2) If these Recovery Act provisions and clauses are only applicable to a project consisting of certain line items in the contract, identify in the schedule the line items to which the provisions and clauses apply.
(3) When using clause 52.225-23, list foreign construction material in paragraph (b)(3) of the clause as follows:
(i) Basic clause. List all foreign construction materials excepted from the Buy American statute or section 1605 of the Recovery Act, other than manufactured construction material from a Recovery Act designated country or unmanufactured construction material from a designated country.
(ii) Alternate I. List in paragraph (b)(3) of the clause all foreign construction material excepted from the Buy American statute or section 1605 of the Recovery Act, other than-
(A) Manufactured construction material from a Recovery Act designated country other than Bahrain, Mexico, or Oman; or
(B) Unmanufactured construction material from a designated country other than Bahrain, Mexico, or Oman.