Overview
This section prescribes the specific circumstances and administrative procedures under which a contracting officer may waive the restrictions of the Buy American statute and the American Recovery and Reinvestment Act of 2009 for foreign construction materials. It establishes the criteria for exceptions based on availability, cost, public interest, and international trade obligations.
Key Rules
- Authorized Exceptions: Foreign construction materials may be used if the domestic equivalent is:
- Unavailable: Not mined, produced, or manufactured in the U.S. in sufficient and reasonably available commercial quantities of satisfactory quality.
- Unreasonable in Cost: The cost of domestic material exceeds the benchmarks established in FAR 25.605.
- Inconsistent with Public Interest: A determination made by the head of the agency.
- Impracticable: A specific exception available for unmanufactured construction material at the discretion of the agency head.
- Documentation and Listing: All foreign construction materials allowed under an exception must be specifically listed in the resulting contract.
- Transparency Requirements: For Recovery Act projects, any exception granted (unless the material is already on the nonavailability list at 25.104) requires a notice to be published in the Federal Register within three business days, including a detailed justification.
- Trade Agreements: For construction contracts valued at $6,708,000 or more, materials from "designated countries" receive equal consideration to domestic materials. However, Caribbean Basin Countries are specifically excluded from "designated country" status regarding Recovery Act manufactured materials.
Practical Implications
- Contractors seeking to use foreign materials must provide detailed cost and sourcing data early, as the "unreasonable cost" determination is subject to a specific mathematical evaluation by the contracting officer.
- The three-day Federal Register notice requirement for Recovery Act exceptions creates a high level of public and regulatory scrutiny for agencies choosing to bypass domestic sourcing requirements.