52.225-22 Notice of Required Use of American Iron, Steel, and Manufactured Goods-Buy American Statute-Construction Materials
Source: FAR 52.225-22 on acquisition.gov
FAR 52.225-22 requires offerors on covered construction contracts to prioritize American-made materials and follow strict procedures for requesting exceptions, with significant evaluation penalties for foreign materials.
Overview
FAR 52.225-22 is a solicitation provision that notifies offerors of the requirement to use American iron, steel, and manufactured goods in construction projects funded by the American Recovery and Reinvestment Act (ARRA) or subject to the Buy American statute. It outlines procedures for requesting exceptions, how offers will be evaluated when foreign materials are proposed, and the process for submitting alternate offers using domestic materials. The provision ensures transparency and compliance with domestic sourcing laws, and it requires offerors to provide detailed supporting data if seeking exceptions to these requirements.
Key Rules
- Definitions Reference
- Key terms are defined in FAR 52.225-21 and must be understood as used in this provision.
- Requests for Determinations of Inapplicability
- Offerors seeking exceptions to the Buy American statute or ARRA must submit requests (with supporting data) to the Contracting Officer before offer submission, or include the data in their offer if no response is received.
- Evaluation of Offers
- Offers including foreign materials are evaluated with price penalties (25% for manufactured, 20% for unmanufactured) unless exceptions apply. Preference is given to offers using domestic materials if prices are equal.
- Alternate Offers
- Offerors may submit alternate offers using domestic materials, requiring separate forms and cost tables. If exceptions are denied, only domestic-material offers are considered.
Responsibilities
- Contracting Officers: Evaluate requests for exceptions, apply price penalties, and ensure compliance with domestic material requirements.
- Contractors/Offerors: Submit timely and complete exception requests, provide supporting data, and prepare alternate offers as needed.
- Agencies: Oversee compliance and ensure proper evaluation and documentation.
Practical Implications
- This provision enforces domestic sourcing for construction materials, impacting sourcing decisions and bid preparation. Offerors must carefully document and justify any requests for exceptions and be prepared to provide alternate offers. Failure to comply may result in rejection of offers or additional evaluation penalties.
As prescribed in 25.1102(e), insert the following provision:
Notice of Required Use of American Iron, Steel, and Manufactured Goods-Buy American Statute-Construction Materials (Jan 2021)
(a) Definitions. "Construction material," "domestic construction material," "foreign construction material," "manufacturedconstructionmaterial," "steel," and "unmanufactured construction material," as used in this provision, are defined in the clause of this solicitation entitled "Required Use of Iron, Steel, and Manufactured Goods-Buy American statute-Construction Materials" (Federal Acquisition Regulation (FAR) clause 52.225-21).
(b) Requests for determinations of inapplicability. An offeror requesting a determination regarding the inapplicability of section 1605 of the American Recovery and Reinvestment Act of 2009 (Pub. L. 111-5) (Recovery Act) or 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 52.225-21 in the request. If an offeror has not requested a determination regarding the inapplicability of section 1605 of the Recovery Act or 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) If the Government determines that an exception based on unreasonable cost of domestic construction material applies in accordance with FAR 25.604, the Government will evaluate an offer requesting exception to the requirements of section 1605 of the Recovery Act or the Buy American statute by adding to the offered price of the contract-
(i) 25 percent of the offered price of the contract, if foreign manufactured construction material is incorporated in the offer based on an exception for unreasonable cost of comparable manufactured domestic construction material; and
(ii) 20 percent of the cost of foreign unmanufactured construction material included in the offer based on an exception for the unreasonable cost of comparable domestic unmanufactured construction material.
(2) If the solicitation specifies award on the basis of factors in addition to cost or price, the Contracting Officer will apply the evaluation factors as specified in paragraph (c)(1) of this provision and use the evaluated price in determining the offer that represents the best value to the Government.
(3) Unless paragraph (c)(2) of this provision applies, if two or more offers are equal in price, the Contracting Officer will give preference to an offer that does not include foreign construction material excepted at the request of the Offeror on the basis of unreasonable cost of comparable domestic construction material.
(d) Alternate offers.
(1) When an offer includes foreign construction material not listed by the Government in this solicitation in paragraph (b)(3) of the clause at FAR 52.225-21, 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 Standard Form 1442 for the alternate offer and a separate cost comparison table prepared in accordance with paragraphs (c) and (d) of the clause at FAR 52.225-21 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 52.225-21 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 (e), 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 section 1605 of the American Recovery and Reinvestment Act of 2009 (Pub. L. 111-5) (Recovery Act) or 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 52.225-21.