25.205
Postaward determinations
Postaward exceptions to the Buy American statute require strong justification, thorough documentation, and contract modification with negotiated consideration.
Overview
FAR 25.205 addresses the procedures and requirements for postaward determinations regarding the inapplicability of the Buy American statute in construction contracts. This section outlines what contractors must do if they seek an exception to the Buy American requirements after contract award, the evaluation process contracting officers must follow, and the steps for modifying contracts when exceptions are granted.
Key Rules
- Contractor Requests After Award
- Contractors must provide a valid explanation for why a Buy American exception request was not made before award or why the need was unforeseeable. Contracting officers can deny requests if they believe the contractor should have acted earlier.
- Evaluation of Requests
- Contracting officers must evaluate postaward requests using information specified in FAR clauses 52.225-9 or 52.225-11, as well as other available information.
- Contract Modification and Consideration
- If an exception is granted postaward, the contracting officer must negotiate adequate consideration and formally modify the contract. If the exception is due to unreasonable domestic material prices, the consideration must meet or exceed the price differential outlined in FAR 25.202(a) or agency procedures.
Responsibilities
- Contracting Officers: Evaluate postaward requests, ensure adequate documentation, negotiate consideration, and modify contracts as needed.
- Contractors: Provide thorough justification for postaward requests and supply required information per FAR clauses.
- Agencies: Ensure compliance with Buy American requirements and proper contract modifications.
Practical Implications
- This section ensures that exceptions to Buy American requirements are not granted lightly after contract award, protecting government interests and ensuring fair competition. Contractors must be diligent in identifying potential exceptions early, and both parties must follow strict procedures if postaward exceptions are necessary. Failure to comply can result in denied requests or contract disputes.