25.204 Evaluating offers of foreign construction material
Source: FAR 25.204 on acquisition.gov
FAR 25.204 requires contractors to provide detailed information and comply with strict evaluation factors when proposing foreign construction materials, ensuring Buy American preferences are enforced in federal construction contracts.
Overview
FAR 25.204 outlines the procedures for evaluating offers that propose the use of foreign construction materials in government contracts subject to the Buy American statute. It establishes how contracting officers must apply price evaluation factors to foreign materials, differentiating between critical and non-critical items, and sets out the requirements for offerors to provide specific information when requesting exceptions. The section also addresses how to handle offers with domestic content above certain thresholds and provides guidance for alternate offers and contract modifications when exceptions are granted.
Key Rules
- Submission Requirements for Foreign Materials
- Offerors proposing foreign construction materials not pre-approved or covered by trade agreements must submit detailed information as specified in FAR clauses 52.225-9 or 52.225-11.
- Evaluation Factors for Non-Critical Items
- A 20% price evaluation factor is added to the cost of foreign materials (unless a higher percentage is specified) when determining if domestic materials are unreasonably costly. Special rules apply for offers with more than 55% domestic content.
- Evaluation Factors for Critical Items/Components
- For critical items or those containing critical components, the 20% factor plus any additional preference factor from FAR 25.105 is applied.
- Alternate Offers
- Offerors may submit alternate offers using domestic materials to avoid rejection if exceptions for foreign materials are not granted.
- Contract Modification
- If a contract is awarded with unlisted foreign materials, the contracting officer must update the contract to include these materials.
Responsibilities
- Contracting Officers: Apply evaluation factors, determine reasonableness, update contract clauses, and ensure compliance with Buy American requirements.
- Contractors: Submit required information for foreign materials, consider alternate domestic offers, and comply with content thresholds and documentation.
- Agencies: Oversee application of evaluation factors and ensure proper contract modifications.
Practical Implications
- This section ensures fair evaluation of offers involving foreign construction materials and enforces Buy American preferences. Contractors must be diligent in documentation and aware of evaluation factors that can affect competitiveness. Misunderstanding thresholds or failing to submit required information can lead to offer rejection or compliance issues.
(a) Offerors proposing to use foreign construction material other than that listed by the Government in the applicable clause at 52.225-9, paragraph (b)(2), or 52.225-11, paragraph (b)(3), or covered by the WTO GPA or a Free Trade Agreement (paragraph (b)(2) of 52.225-11), must provide the information required by paragraphs (c) and (d) of the respective clauses.
(b)
(1) For construction material that is not a critical item and does not contain critical components.
(i) Unless the head of the agency specifies a higher percentage, the contracting officer shall add to the offered price 20 percent of the cost of any foreign construction material proposed for exception from the requirements of the Buy American statute based on the unreasonable cost of domestic construction materials. In the case of a tie, the contracting officer shall give preference to an offer that does not include foreign construction material excepted at the request of the offeror on the basis of unreasonable cost.
(ii) For construction material that is not a COTS item and does not consist wholly or predominantly of iron or steel or a combination of both, if the procedures in paragraph (b)(1)(i) of this section result in an unreasonable cost determination for the domestic construction material offer or there is no domestic construction material offer received, and the low offer is for foreign construction material that does not exceed 55 percent domestic content, the contracting officer shall—
(A) Treat the lowest offer of foreign construction material that is manufactured in the United States and exceeds 55 percent domestic content as a domestic offer; and
(B) Determine the reasonableness of the cost of this offer by applying the evaluation factor listed in paragraph (b)(1)(i) to the low offer.
(iii) The procedures in paragraph (b)(1)(ii) of this section will no longer apply as of January 1, 2030.
(2) For construction material that is a critical item or contains critical components.
(i) The contracting officer shall add to the offered price 20 percent, plus the additional preference factor identified for the critical item or construction material containing critical components listed at section 25.105, of the cost of any foreign construction material proposed for exception from the requirements of the Buy American statute based on the unreasonable cost of domestic construction materials. In the case of a tie, the contracting officer shall give preference to an offer that does not include foreign construction material excepted at the request of the offeror on the basis of unreasonable cost. See 25.105 for the list of critical components and critical items.
(ii) For construction material that is not a COTS item and does not consist wholly or predominantly of iron or steel or a combination of both, if the procedures in paragraph (b)(2)(i) of this section result in an unreasonable cost determination for the domestic construction material offer or there is no domestic construction material offer received, and the low offer is for foreign construction material that does not exceed 55 percent domestic content, the contracting officer shall—
(A) Treat the lowest offer of foreign construction material that is manufactured in the United States and exceeds 55 percent domestic content as a domestic offer; and
(B) Determine the reasonableness of the cost of this offer by applying the evaluation factors listed in this paragraph (b)(2) to the low offer.
(iii) The procedures in paragraph (b)(2)(ii) of this section will no longer apply as of January 1, 2030.
(c) Offerors also may submit alternate offers based on use of equivalent domestic construction material to avoid possible rejection of the entire offer if the Government determines that an exception permitting use of a particular foreign construction material does not apply.
(d) If the contracting officer awards a contract to an offeror that proposed foreign construction material not listed in the applicable clause in the solicitation (paragraph (b)(2) of 52.225-9, or paragraph (b)(3) of 52.225-11), the contracting officer must add the excepted materials to the list in the contract clause.