52.225-10 Notice of Buy American Requirement-Construction Materials
Source: FAR 52.225-10 on acquisition.gov
Contractors must carefully follow Buy American requirements for construction materials, submitting all required documentation and alternate offers to avoid disqualification.
Overview
FAR 52.225-10, "Notice of Buy American Requirement-Construction Materials," informs offerors of the Buy American statute's requirements for construction materials in federal contracts. It defines key terms by reference to FAR 52.225-9 and outlines procedures for requesting exceptions, evaluation of offers involving foreign materials, and submission of alternate offers. The provision ensures that offerors understand how to request determinations of inapplicability, how their offers will be evaluated if they propose foreign construction materials, and the documentation required for compliance. Alternate I modifies the timing for submitting exception requests, requiring submission with the offer.
Key Rules
- Definitions Reference
- Key terms are defined in FAR 52.225-9 and must be understood for compliance.
- Requests for Determinations of Inapplicability
- Offerors must submit requests for exceptions to the Buy American statute with supporting data, either before or with their offer, depending on the solicitation instructions.
- Evaluation of Offers
- Offers with foreign construction materials are evaluated with a price adjustment, and ties favor offers without exceptions.
- Alternate Offers
- Offerors may submit alternate offers using domestic materials, requiring separate forms and price tables.
- Nonresponsive Offers
- Offers based on foreign materials without a granted exception may be rejected or must be revised.
Responsibilities
- Contracting Officers: Evaluate exception requests, apply price adjustments, and determine responsiveness.
- Contractors: Submit required documentation and alternate offers as needed, and comply with Buy American requirements.
- Agencies: Ensure proper evaluation and enforcement of Buy American provisions.
Practical Implications
- Ensures domestic materials are prioritized in federal construction contracts.
- Requires careful documentation and timely submission of exception requests.
- Noncompliance can result in offer rejection or contract ineligibility.
As prescribed in 25.1102(b)(1), insert the following provision:
Notice of Buy American Requirement-Construction Materials (May 2014)
(a) Definitions. "Commercially available off-the-shelf (COTS) item," "construction material," "domestic construction material," and "foreign construction material," as used in this provision, are defined in the clause of this solicitation entitled "Buy American-Construction Materials" (Federal Acquisition Regulation (FAR) clause 52.225-9).
(b) Requests for determinations of inapplicability. An offeror requesting a determination regarding the inapplicability of the Buy American statute should submit the request to the Contracting Officer in time to allow a determination before submission of offers. The offeror shall include the information and applicable supporting data required by paragraphs (c) and (d) of the clause at FAR 52.225-9 in the request. If an offeror has not requested a determination regarding the inapplicability of the Buy American statute before submitting its offer, or has not received a response to a previous request, the offeror shall include the information and supporting data in the offer.
(c) Evaluation of offers.
(1) The Government will evaluate an offer requesting exception to the requirements of the Buy American statute, based on claimed unreasonable cost of domestic construction material, by adding to the offered price the appropriate percentage of the cost of such foreign construction material, as specified in paragraph (b)(3)(i) of the clause at FAR 52.225-9.
(2) If evaluation results in a tie between an offeror that requested the substitution of foreign construction material based on unreasonable cost and an offeror that did not request an exception, the Contracting Officer will award to the offeror that did not request an exception based on unreasonable cost.
(d) Alternate offers.
(1) When an offer includes foreign construction material not listed by the Government in this solicitation in paragraph (b)(2) of the clause at FAR 52.225-9, the offeror also may submit an alternate offer based on use of equivalent domestic construction material.
(2) If an alternate offer is submitted, the offeror shall submit a separate https://www.gsa.gov/forms-library/solicitation-offer-and-award-construction-alteration-or-repair" target="_blank">Standard Form 1442 for the alternate offer, and a separate price comparison table prepared in accordance with paragraphs (c) and (d) of the clause at FAR 52.225-9 for the offer that is based on the use of any foreign construction material for which the Government has not yet determined an exception applies.
(3) If the Government determines that a particular exception requested in accordance with paragraph (c) of the clause at FAR 52.225-9 does not apply, the Government will evaluate only those offers based on use of the equivalent domestic construction material, and the offeror shall be required to furnish such domestic construction material. An offer based on use of the foreign construction material for which an exception was requested-
(i) Will be rejected as nonresponsive if this acquisition is conducted by sealed bidding; or
(ii) May be accepted if revised during negotiations.
(End of Provision)
Alternate I (May 2014). As prescribed in 25.1102 (b)(2), substitute the following paragraph (b) for paragraph (b) of the basic provision:
(b) Requests for determinations of inapplicability. An offeror requesting a determination regarding the inapplicability of the Buy American statute shall submit the request with its offer, including the information and applicable supporting data required by paragraphs (c) and (d) of the clause at FAR 52.225-9.