25.202
Exceptions
FAR 25.202 allows exceptions to Buy American requirements for construction materials under specific, documented circumstances, but mandates transparency and proper contract documentation.
Overview
FAR 25.202 outlines the specific exceptions to the Buy American statute for construction materials used in federal contracts. It allows contracting officers to approve the use of foreign construction materials under certain conditions, such as impracticability, nonavailability, unreasonable cost, or when acquiring information technology that is a commercial product. The section also requires proper documentation and public disclosure of such exceptions, and references additional requirements for contracts subject to trade agreements.
Key Rules
- Impracticable or Inconsistent with Public Interest
- The head of the agency can waive Buy American restrictions if applying them is impracticable or against public interest, including when a blanket exception exists due to an agreement with a foreign government.
- Nonavailability
- If a construction material is not available in sufficient quantity or quality domestically, the head of the contracting activity may approve foreign materials. Special rules apply for certain articles and for offers exceeding 55% domestic content before 2030.
- Unreasonable Cost
- If domestic materials are unreasonably expensive, as defined in FAR 25.204, foreign materials may be used.
- Information Technology Commercial Products
- Buy American restrictions do not apply to IT commercial products purchased with FY 2004 or later funds.
- Documentation and Public Disclosure
- All exceptions must be listed in the contract, and the agency must make the justification publicly available.
- Trade Agreements
- For contracts valued at $6,708,000 or more, additional rules in FAR subpart 25.4 apply.
Responsibilities
- Contracting Officers: Must determine and document exceptions, list excepted materials in contracts, and ensure public disclosure of justifications.
- Contractors: Must comply with contract terms regarding approved exceptions and provide necessary information for determinations.
- Agencies: Must justify and publicly disclose exceptions, and follow additional procedures for high-value contracts under trade agreements.
Practical Implications
- This section provides flexibility for using foreign construction materials when domestic options are impractical, unavailable, or unreasonably costly, or for certain IT products. Contractors and contracting officers must ensure proper documentation and compliance with exception procedures to avoid violations. Common pitfalls include inadequate justification or failure to publicly disclose exceptions.