25.606 Postaward determinations
Source: FAR 25.606 on acquisition.gov
Contractors must provide strong justification and required documentation for postaward exceptions to Buy American requirements, and contracting officers must ensure fair compensation and proper contract modification if exceptions are granted.
Overview
FAR 25.606 addresses the procedures and requirements for contractors seeking a postaward determination regarding the inapplicability of section 1605 of the Recovery Act or the Buy American statute for construction materials. Contractors must justify why the request could not have been made before award, and contracting officers have discretion to deny requests if they believe the issue should have been raised earlier. The evaluation of such requests relies on specific information outlined in contract clauses 52.225-21 or 52.225-23, as well as other available data. If an exception is granted postaward, the contracting officer must negotiate adequate consideration (compensation) and formally modify the contract, especially when the exception is based on the unreasonable cost of domestic materials, referencing the cost differential in 25.605(a). This process ensures that exceptions to domestic material requirements are carefully controlled and fairly compensated after contract award.
Key Rules
- Justification for Postaward Requests
- Contractors must explain why a determination request was not made preaward or why it was unforeseeable.
- Evaluation of Requests
- Contracting officers must use information from specific contract clauses and other sources to evaluate postaward requests.
- Negotiation and Modification
- If an exception is granted, the contract must be modified and adequate consideration negotiated, especially for cost-based exceptions.
Responsibilities
- Contracting Officers: Evaluate postaward requests, determine if justification is sufficient, use required information, negotiate consideration, and modify contracts as needed.
- Contractors: Provide detailed justification for postaward requests and supply required supporting information.
- Agencies: Ensure compliance with statutory requirements and proper documentation of exceptions.
Practical Implications
- This section exists to prevent abuse of postaward exception requests and ensure transparency and fairness in the use of foreign construction materials. Contractors must be proactive and thorough in their requests, and contracting officers must document and justify any exceptions granted after award. Common pitfalls include insufficient justification or failure to provide required information, leading to denial of requests.
(a) If a contractor requests a determination regarding the inapplicability of section 1605 of the Recovery Act or 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 section 1605 of the Recovery Act or the Buy American statute made after contract award on information required by paragraphs (c) and (d) of the applicable clause at 52.225-21 or 52.225-23 and/or other readily available information.
(c) If a determination, under 25.603(a), is made after contract award that an exception to section 1605 of the Recovery Act or 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 cost of a domestic construction material, adequate consideration is at least the differential established in 25.605(a).