25.603 Exceptions
Source: FAR 25.603 on acquisition.gov
Foreign construction materials may be used only when a documented FAR 25.603 exception applies, the proper official approves it, and the contract and any required public notice fully reflect that waiver.
Overview
- FAR 25.603 identifies the limited circumstances in which foreign construction materials may be used despite the Buy American restrictions that normally apply to construction under Subpart 25.6.
- It covers exceptions for both manufactured construction materials under section 1605 of the Recovery Act and unmanufactured construction materials under the Buy American statute.
Key Rules
- Permitted Exceptions
- Foreign materials may be allowed when the material is nonavailable domestically, when domestic material is at an unreasonable cost under FAR 25.605, or when applying the restriction would be inconsistent with the public interest. For unmanufactured construction material, the agency head may also find application of the Buy American statute impracticable.
- Required Determinations and Contract Documentation
- The appropriate official must make the required determination: the head of the contracting activity for nonavailability, the contracting officer for unreasonable cost, and the head of the agency for public interest or impracticability. Once approved, the contracting officer must list the excepted materials in the contract.
- Federal Register Notice for Recovery Act Waivers
- If a determination makes section 1605 of the Recovery Act inapplicable, and the item is not already listed at FAR 25.104 as domestically nonavailable, the agency head must publish a Federal Register notice within 3 business days and send copies to OFPP and the Recovery Accountability and Transparency Board.
- Trade Agreements Threshold
- For construction contracts valued at $6,683,000 or more, Subpart 25.4 also applies. Offers using construction material from a designated country must receive equal consideration with offers using domestic material, except that Caribbean Basin Countries are not designated countries for Recovery Act section 1605 evaluation.
Responsibilities
- Contracting Officers: assess unreasonable cost under FAR 25.605, ensure proper exception determinations are obtained, and list approved foreign materials in the contract.
- Contractors: support exception requests with sufficient facts on nonavailability, cost, or other waiver grounds and ensure proposed foreign materials match approved contract exceptions.
- Agencies: make required higher-level determinations and issue timely Federal Register notices for applicable Recovery Act waivers.
Practical Implications
- This section exists to provide controlled flexibility when domestic sourcing rules cannot reasonably be met.
- It affects proposal strategy, sourcing decisions, and contract administration, especially for construction projects involving scarce materials or high domestic price differentials.
- Common pitfalls include using foreign materials before obtaining the proper determination, failing to list excepted items in the contract, and missing the 3-business-day Federal Register notice requirement.
(a)
(1) When one of the following exceptions applies, the contracting officer may allow the contractor to incorporate foreign manufactured construction materials without regard to the restrictions of section 1605 of the Recovery Act or foreign unmanufactured construction material without regard to the restrictions of the Buy American statute:
(i) 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.
(ii) Unreasonable cost. The contracting officer concludes that the cost of domestic construction material is unreasonable in accordance with 25.605.
(iii) Inconsistent with public interest. The head of the agency may determine that application of the restrictions of section 1605 of the Recovery Act to a particular manufactured construction material, or the restrictions of the Buy American statute to a particular unmanufactured construction material would be inconsistent with the public interest.
(2) In addition, the head of the agency may determine that application of the Buy American statute to a particular unmanufactured construction material would be impracticable.
(b) Determinations. When a determination is made, for any of the reasons stated in this section, that certain foreign construction materials may be used-
(1) The contracting officer shall list the excepted materials in the contract; and
(2) For determinations with regard to the inapplicability of section 1605 of the Recovery Act, unless the construction material has already been determined to be domestically nonavailable (see list at 25.104), the head of the agency shall provide a notice to the Federal Register within three business days after the determination is made, with a copy to the Administrator for Federal Procurement Policy and to the Recovery Accountability and Transparency Board. The notice shall include-
(i) The title "Buy American Exception under the American Recovery and Reinvestment Act of 2009";
(ii) The dollar value and brief description of the project; and
(iii) A detailed justification as to why the restriction is being waived.
(c) Acquisitions under trade agreements.
(1) For construction contracts with an estimated acquisition value of $6,683,000 or more, also see subpart 25.4. Offers proposing the use of construction material from a designated country shall receive equal consideration with offers proposing the use of domestic construction material.
(2) For purposes of applying section 1605 of the Recovery Act to evaluation of manufactured construction material, designated countries do not include the Caribbean Basin Countries.