Overview
This section outlines the procedures and criteria for a contractor to request a determination that the Buy American statute or the Recovery Act (Section 1605) does not apply to specific construction materials after a contract has already been awarded.
Key Rules
- Justification for Delay: Contractors must prove why the request was not made before award or explain why the need for the exception was not reasonably foreseeable.
- Contracting Officer Discretion: The Contracting Officer (CO) has the authority to deny a request if they determine the contractor should have identified the need for an exception during the solicitation phase.
- Evaluation Criteria: Determinations are based on specific information required by FAR clauses 52.225-21 or 52.225-23, along with any other readily available data.
- Mandatory Consideration: If a post-award exception is granted, the CO must modify the contract and negotiate "adequate consideration" from the contractor.
- Cost Differential Minimums: If the exception is granted based on the "unreasonable cost" of domestic material, the consideration provided to the government must be at least the price differential established in FAR 25.605(a).
Practical Implications
- Contractors face a high burden of proof for post-award requests; failure to conduct due diligence during the bidding process can lead to the denial of an exception and potential performance issues.
- Even if an exception is granted post-award, the contractor will likely face a contract price reduction or other financial penalties to compensate the government for the deviation from domestic preference requirements.