Overview
FAR 25.202 outlines the specific circumstances and administrative procedures under which a contracting officer may waive Buy American statute restrictions to allow the use of foreign construction materials in federal projects.
Key Rules
- Authorized Exceptions: Foreign construction materials may be used if the domestic version is:
- Impracticable or inconsistent with the public interest: Determined by the agency head (includes blanket exceptions from foreign agreements).
- Nonavailable: Determined by the Head of the Contracting Activity (HCA) based on a lack of domestic items in sufficient quantity or quality.
- Unreasonably priced: Determined by the Contracting Officer based on price evaluation formulas in FAR 25.204.
- Commercial Information Technology: Restrictions do not apply to IT that is a commercial product using post-FY2004 funds.
- Domestic Content Nuance: Until January 1, 2030, a formal nonavailability determination is not required if an offer for foreign material exceeds 55% domestic content (per specific evaluation subparts).
- Documentation Requirements: If an exception is granted, the specific foreign materials must be listed in the contract, and the justification findings must be made available for public inspection.
- Trade Agreement Threshold: Construction contracts valued at $6,708,000 or more are subject to Trade Agreements (Subpart 25.4) rather than these specific Buy American exceptions.
Practical Implications
- High-Level Approval Required: Most exceptions (Public Interest and Nonavailability) cannot be granted by the Contracting Officer alone and require high-level authorization from the Agency Head or HCA, necessitating robust supporting documentation from the contractor.
- Transparency and Compliance: Because justifications must be made public, agencies are generally cautious in granting these exceptions, and contractors must ensure their cost or availability data is defensible and aligns with the specific regulatory thresholds.