25.205 Postaward determinations
Source: FAR 25.205 on acquisition.gov
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.
(a) If a contractor requests a determination regarding the inapplicability of the Buy American statute after contract award, the contractor must explain why it could not request the determination before contract award or why the need for such determination otherwise was not reasonably foreseeable. If the contracting officer concludes that the contractor should have made the request before contract award, the contracting officer may deny the request.
(b) The contracting officer must base evaluation of any request for a determination regarding the inapplicability of the Buy American statute made after contract award on information required by paragraphs (c) and (d) of the applicable clause at 52.225-9 or 52.225-11 and/or other readily available information.
(c) If a determination, under 25.202(a), is made after contract award that an exception to the Buy American statute applies, the contracting officer must negotiate adequate consideration and modify the contract to allow use of the foreign construction material. When the basis for the exception is the unreasonable price of a domestic construction material, adequate consideration is at least the differential established in 25.202(a) or in accordance with agency procedures.