Overview
FAR 25.205 establishes the procedures and criteria for evaluating contractor requests to use foreign construction materials instead of domestic ones after a contract has already been awarded. It emphasizes that postaward exceptions to the Buy American statute are not guaranteed and require specific justifications and contractual adjustments.
Key Rules
- Justification of Timing: Contractors must explain why the request was not made prior to award or why the need for foreign material was not reasonably foreseeable; the Contracting Officer (CO) may deny any request that should have been submitted during the proposal stage.
- Information Requirements: CO evaluations must be based on the detailed information and data required by FAR clauses 52.225-9 or 52.225-11, or other available data.
- Mandatory Consideration: If a postaward exception is granted, the CO must negotiate "adequate consideration" (typically a price reduction) from the contractor and formally modify the contract.
- Minimum Credit for Unreasonable Price: When an exception is granted because domestic material is too expensive, the consideration provided to the government must be at least the evaluation differential specified in FAR 25.202(a).
Practical Implications
- Contractors face a high burden of proof for postaward requests, making it risky to wait until after award to address supply chain issues or price discrepancies regarding domestic materials.
- Even if an exception is granted, the contractor will likely lose the cost savings associated with the foreign material, as the government is required to claw back the price difference through a contract modification.