FAR 52.225-9 - Buy American - Construction Materials
Prescribed in 25.1102(a) | ||
| Effective Date: | 1 May 2014 | |
| Clause or Provision: | Clause | |
| Provision or Clause Number: | 52.225-9 - Buy American - Construction Materials | |
| Principle Type And/Or Purpose of Contract: | ||
| Required: | ||
| Applicable: | Cost Reimbursement, Construction; Fixed Price, Construction | |
| Optional: | Utility Services; Simplified Acquisition Procedures (Excludes Micro-Purchase); Facilities; Indefinite Delivery; Dismantling, Demolition or Removal of Improvements; Leasing of Motor Vehicles; Time & Material/Labor Hour; Fixed Price, Service; Cost Reimbursement, Supply; Cost Reimbursement, Service | |
| Subject: | Buy American | |
| ProcurementType: | ||
| Contract Threshold: | ||
| Prescription Overview: |
Prescription(a) Insert the clause at 52.225-9, Buy American—Construction Materials, in solicitations and contracts for construction that is performed in the United States valued at less than $7,864,000. (1) List in paragraph (b)(2) of the clause all foreign construction material excepted from the requirements of the Buy American statute. (2) If the head of the agency determines that a higher percentage is appropriate, substitute the higher evaluation percentage in paragraph (b)(3)(i) of the clause. | |
| Clause Overview: |
Clause(a) Definitions. As used in this clause—“Commercially available off-the-shelf (COTS) item”— (1) Means any item of supply (including construction material) that is—
(2) Does not include bulk cargo, as defined in 46 U.S.C. 40102(4), such as agricultural products and petroleum products. “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. Materials purchased directly by the Government are supplies, not construction material. “Cost of components” means— (3) For components purchased by the Contractor, the acquisition cost, including transportation costs to the place of incorporation into the construction material (whether or not such costs are paid to a domestic firm), and any applicable duty (whether or not a duty-free entry certificate is issued); or (4) For components manufactured by the Contractor, all costs associated with the manufacture of the component, including transportation costs as described in paragraph (1) of this definition, plus allocable overhead costs, but excluding profit. Cost of components does not include any costs associated with the manufacture of the construction material. “Domestic construction material” means— (1) An unmanufactured construction material mined or produced in the United States; (2) A construction material manufactured in the United States, if—
“Foreign construction material” means a construction material other than a domestic construction material. “United States” means the 50 States, the District of Columbia, and outlying areas.
(b) Domestic preference(1) This clause implements 41 U.S.C. chapter 83, Buy American, by providing a preference for domestic construction material. In accordance with 41 U.S.C. 1907, the component test of the Buy American statute is waived for construction material that is a COTS item. (See FAR 12.505(a)(2)). The Contractor shall use only domestic construction material in performing this contract, except as provided in paragraphs (b)(2) and (b)(3) of this clause. (2) This requirement does not apply to information technology that is a commercial item or to the construction materials or components listed by the Government as follows: ________________________________________________ [Contracting Officer to list applicable excepted materials or indicate “none”] (3) The Contracting Officer may add other foreign construction material to the list in paragraph (b)(2) of this clause if the Government determines that—
Determination of Inapplicability(c) Request for determination of inapplicability of the Buy American statute. (1)
(2) If the Government determines after contract award that an exception to 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 price of a domestic construction material, adequate consideration is not less than the differential established in paragraph (b)(3)(i) of this clause. (3) Unless the Government determines that an exception to the Buy American statute applies, use of foreign construction material is noncompliant with the Buy American statute.
(d) DataTo 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:
Construction Mat. Description Unit of Measure Quantity Price 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 and any applicable duty (whether or not a duty-free entry certificate is issued).] | |
| Important Notes/Requirements: |
Only applies to Construction Contracts. | |
| Subcontract Threshold: | ||
| Incorporated by Reference: | No | |
| Uniform Contract Format: | ||
| Editor: | Marshall | |
Personal notes.
