25.202 Exceptions
Source: FAR 25.202 on acquisition.gov
Foreign construction materials may be used only under specific FAR 25.202 exceptions, and when an exception is approved, the materials must be identified in the contract and the supporting findings made publicly available.
Overview
- FAR 25.202 identifies the limited circumstances in which foreign construction materials may be used despite the Buy American statute’s restrictions for construction contracts.
- Its purpose is to give contracting officers and agencies a controlled framework for approving exceptions while preserving documentation and transparency requirements.
Key Rules
- Impracticable or inconsistent with public interest
- The head of the agency may authorize use of foreign construction material when applying the Buy American restriction would be impracticable or contrary to the public interest, including where a foreign government agreement creates a blanket exception.
- Nonavailability
- The head of the contracting activity may determine that a construction material is not available domestically in sufficient and reasonably available commercial quantities of satisfactory quality. Existing nonavailability determinations and procedures in FAR 25.104(a) and 25.103(b)(1) also apply. Until January 1, 2030, no separate determination is required if the offered foreign construction material exceeds 55% domestic content.
- Unreasonable cost / Commercial IT / Trade agreements
- An exception applies if the contracting officer determines domestic material cost is unreasonable under FAR 25.204. The restriction also does not apply to information technology that is a commercial product when using FY 2004 or later funds. For construction contracts valued at $6,683,000 or more, Subpart 25.4 on trade agreements must also be considered.
Responsibilities
- Contracting Officers: determine whether an exception applies, document unreasonable cost decisions, list excepted materials in the contract, and ensure supporting findings are publicly available.
- Contractors: identify foreign construction materials requiring an exception and support claims involving nonavailability, cost, or qualifying commercial IT.
- Agencies: make required determinations at the proper approval level and provide public access to findings.
Practical Implications
- This section exists to balance domestic preference requirements with supply realities, cost concerns, public interest needs, and trade obligations.
- It affects sourcing strategy, proposal preparation, and contract drafting for construction acquisitions.
- Common pitfalls include failing to obtain the correct approval level, omitting excepted materials from the contract, or overlooking the trade agreements threshold.
(a) When one of the following exceptions applies, the contracting officer may allow the contractor to acquire foreign construction materials without regard to the restrictions of the Buy American statute:
(1) Impracticable or inconsistent with public interest. The head of the agency may determine that application of the restrictions of the Buy American statute to a particular construction material would be impracticable or would be inconsistent with the public interest. The public interest exception applies when an agency has an agreement with a foreign government that provides a blanket exception to the Buy American statute.
(2) Nonavailability. The head of the contracting activity may determine that a particular construction material is not mined, produced, or manufactured in the United States in sufficient and reasonably available commercial quantities of a satisfactory quality. The determinations of nonavailability of the articles listed at 25.104(a) and the procedures at 25.103(b)(1) also apply if any of those articles are acquired as construction materials. A determination is not required before January 1, 2030, if there is an offer for a foreign construction material that exceeds 55 percent domestic content (see 25.204(b)(1)(ii) and 25.204(b)(2)(ii)).
(3) Unreasonable cost. The contracting officer concludes that the cost of domestic construction material is unreasonable in accordance with 25.204.
(4) Information technology that is a commercial product. The restriction on purchasing foreign construction material does not apply to the acquisition of information technology that is a commercial product, when using Fiscal Year 2004 or subsequent fiscal year funds (section 535(a) of Division F, Title V, Consolidated Appropriations Act, 2004, and similar sections in subsequent appropriations acts).
(b) Determination and findings. When a determination is made for any of the reasons stated in this section that certain foreign construction materials may be used, the contracting officer must list the excepted materials in the contract. The agency must make the findings justifying the exception available for public inspection.
(c) Acquisitions under trade agreements. For construction contracts with an estimated acquisition value of $6,683,000 or more, see subpart 25.4.