52.225-21 Required Use of American Iron, Steel, and Manufactured Goods-Buy American Statute-Construction Materials
Source: FAR 52.225-21 on acquisition.gov
Contractors on covered federal construction projects must use American-made iron, steel, and manufactured goods unless a specific exception is granted by the government.
Overview
FAR 52.225-21 requires contractors on certain federally funded construction projects to use only American-made iron, steel, and manufactured goods, unless specific exceptions apply. The clause implements Section 1605 of the American Recovery and Reinvestment Act (Recovery Act) and the Buy American statute, mandating a preference for domestic construction materials. Contractors must ensure that all construction materials incorporated into the project are domestic unless the government has listed exceptions or grants a waiver based on cost, availability, or public interest. The regulation defines key terms such as domestic construction material, foreign construction material, and the thresholds for what constitutes unreasonable cost. Contractors seeking to use foreign materials must submit detailed justification and cost comparison data for government evaluation. Failure to comply may result in noncompliance with federal law and contract modification requirements.
Key Rules
- Domestic Preference Requirement
- Contractors must use only domestic construction materials unless an exception is listed or approved by the Contracting Officer.
- Exceptions to Domestic Material Use
- Exceptions may be granted if domestic materials are unavailable, of unsatisfactory quality, or if their use is inconsistent with public interest, or if the cost differential exceeds 25% for manufactured or 20% for unmanufactured materials.
- Requesting Use of Foreign Materials
- Contractors must submit detailed requests with supporting data and justification for using foreign materials, including cost comparisons and supplier information.
- Contract Modification for Exceptions
- If an exception is granted post-award, the contract will be modified, and adequate consideration negotiated, except for cost-based exceptions where the minimum differential applies.
Responsibilities
- Contracting Officers: List any excepted materials, evaluate requests for exceptions, and modify contracts as needed.
- Contractors: Use only domestic materials unless approved otherwise, submit required documentation for exceptions, and maintain supporting data.
- Agencies: Ensure compliance with statutory requirements and oversee exception processes.
Practical Implications
- This clause ensures federal funds support American manufacturing and labor. Contractors must plan procurement carefully to avoid delays or noncompliance. Common pitfalls include inadequate documentation for exception requests and misunderstanding cost thresholds for waivers.
As prescribed in 25.1102(e), insert the following clause:
Required Use of American Iron, Steel, and Manufactured Goods-Buy American Statute-Construction Materials (Jan 2021)
(a) Definitions. As used in this clause-
Component means an article, material, or supply incorporated directly into a construction material.
Construction material means an article, material, or supply brought to the construction site by the Contractor or a subcontractor for incorporation into the building or work. The term also includes an item brought to the site preassembled from articles, materials, or supplies. However, emergency life safety systems, such as emergency lighting, fire alarm, and audio evacuation systems, that are discrete systems incorporated into a public building or work and that are produced as complete systems, are evaluated as a single and distinct construction material regardless of when or how the individual parts or components of those systems are delivered to the construction site.
Domestic construction material means the following-
(1) An unmanufactured construction material mined or produced in the United States. (The Buy American statute applies.)
(2) A manufactured construction material that is manufactured in the United States and, if the construction material consists wholly or predominantly of iron or steel, the iron or steel was produced in the United States. (Section 1605 of the Recovery Act applies.)
Foreign construction material means a construction material other than a domestic construction material.
Manufactured construction material means any construction material that is not unmanufactured construction material.
Steel means an alloy that includes at least 50 percent iron, between 0.02 and 2 percent carbon, and may include other elements.
United States means the 50 States, the District of Columbia, and outlying areas.
Unmanufactured construction material means raw material brought to the construction site for incorporation into the building or work that has not been-
(1) Processed into a specific form and shape; or
(2) Combined with other raw material to create a material that has different properties than the properties of the individual raw materials.
(b) Domestic preference.
(1) This clause implements-
(i) Section 1605 of the American Recovery and Reinvestment Act of 2009 (Recovery Act) (Pub. L. 111-5), by requiring, unless an exception applies, that all manufactured construction material in the project is manufactured in the United States and, if the construction material consists wholly or predominantly of iron or steel, the iron or steel was produced in the United States (produced in the United States means that all manufacturing processes of the iron or steel must take place in the United States, except metallurgical processes involving refinement of steel additives); and
(ii) 41 U.S.C chapter 83, Buy American, by providing a preference for unmanufactured construction material mined or produced in the United States over unmanufactured construction material mined or produced in a foreign country.
(2) The Contractor shall use only domestic construction material in performing this contract, except as provided in paragraph (b)(3) and (b)(4) of this clause.
(3) This requirement does not apply to the construction material or components listed by the Government as follows:
____________________________________________________________________________[Contracting Officer to list applicable excepted materials or indicate "none"]
(4) The Contracting Officer may add other foreign construction material to the list in paragraph (b)(3) of this clause if the Government determines that-
(i) The cost of domestic construction material would be unreasonable;
(A) The cost of domestic manufactured construction material, when compared to the cost of comparable foreign manufactured construction material, is unreasonable when the cumulative cost of such material will increase the cost of the contract by more than 25 percent;
(B) The cost of domestic unmanufactured construction material is unreasonable when the cost of such material exceeds the cost of comparable foreign unmanufactured construction material by more than 20 percent;
(ii) The construction material is not mined, produced, or manufactured in the United States in sufficient and reasonably available quantities and of a satisfactory quality;
(iii) The application of the restriction of section 1605 of the Recovery Act to a particular manufactured construction material would be inconsistent with the public interest or the application of the Buy American statute to a particular unmanufactured construction material would be impracticable or inconsistent with the public interest.
(c) Request for determination of inapplicability of section 1605 of the Recovery Act or the Buy American statute.
(1)
(i) Any Contractor request to use foreign construction material in accordance with paragraph (b)(4) of this clause shall include adequate information for Government evaluation of the request, including-
(A) A description of the foreign and domestic construction materials;
(B) Unit of measure;
(C) Quantity;
(D) Cost;
(E) Time of delivery or availability;
(F) Location of the construction project;
(G) Name and address of the proposed supplier; and
(H) A detailed justification of the reason for use of foreign construction materials cited in accordance with paragraph (b)(4) of this clause.
(ii) A request based on unreasonable cost shall include a reasonable survey of the market and a completed cost comparison table in the format in paragraph (d) of this clause.
(iii) The cost of construction material shall include all delivery costs to the construction site and any applicable duty.
(iv) Any Contractor request for a determination submitted after contract award shall explain why the Contractor could not reasonably foresee the need for such determination and could not have requested the determination before contract award. If the Contractor does not submit a satisfactory explanation, the Contracting Officer need not make a determination.
(2) If the Government determines after contract award that an exception to section 1605 of the Recovery Act or the Buy American statute applies and the Contracting Officer and the Contractor negotiate adequate consideration, the Contracting Officer will modify the contract to allow use of the foreign construction material. However, when the basis for the exception is the unreasonable cost of a domestic construction material, adequate consideration is not less than the differential established in paragraph (b)(4)(i) of this clause.
(3) Unless the Government determines that an exception to section 1605 of the Recovery Act or the Buy American statute applies, use of foreign construction material is noncompliant with section 1605 of the American Recovery and Reinvestment Act or the Buy American statute.
(d) Data. To permit evaluation of requests under paragraph (c) of this clause based on unreasonable cost, the Contractor shall include the following information and any applicable supporting data based on the survey of suppliers:
| Foreign and Domestic Construction Materials Cost Comparison | |||
|---|---|---|---|
| Construction Material Description | Unit of Measure | Quantity | Cost (Dollars)* |
|
Item 1: |
|||
|
Foreign construction material |
________ |
________ |
________ |
|
Domestic construction material |
________ |
________ |
________ |
|
Item 2: |
|||
|
Foreign construction material |
________ |
________ |
________ |
|
Domestic construction material |
________ |
________ |
________ |
|
[List name, address, telephone number, and contact for suppliers surveyed. Attach copy of response; if oral, attach summary.] [Include other applicable supporting information.] [* Include all delivery costs to the construction site.] |
|||
(End of clause)