[Federal Register: March 31, 2009 (Volume 74, Number 60)]
[Rules and Regulations]
[Page 14623-14633]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr31mr09-18]
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DEPARTMENT OF DEFENSE
GENERAL SERVICES ADMINISTRATION
NATIONAL AERONAUTICS AND SPACE ADMINISTRATION
48 CFR Parts 1, 5, 25, and 52
[FAC 2005-32; FAR Case 2009-008; Item I; Docket 2009-0008, Sequence 1]
RIN 9000-AL22
Federal Acquisition Regulation; FAR Case 2009-008, American
Recovery and Reinvestment Act of 2009 (the Recovery Act)--Buy American
Requirements for Construction Material
AGENCY: Department of Defense (DoD), General Services Administration
(GSA), and National Aeronautics and Space Administration (NASA).
ACTION: Interim rule with request for comments.
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SUMMARY: The Civilian Agency Acquisition Council and the Defense
Acquisition Regulations Council (Councils) have agreed on an interim
rule amending the Federal Acquisition Regulation (FAR) to implement the
American Recovery and Reinvestment Act of 2009 (Pub. L. 111-5)
(Recovery Act) with respect to the Buy American provision, section 1605
in Division A. This rule does not cover procurements funded with
Federal financial assistance such as Federal grants. Additional
guidance will be provided by the Office of Management and Budget with
respect to the application of section 1605 to procurements funded with
Federal financial assistance.
DATES: Effective Date: March 31, 2009.
Applicability Date: The rule applies to solicitations issued and
contracts awarded on or after the effective date of this rule.
Contracting officers shall modify, on a bilateral basis, in accordance
with FAR 1.108(d)(3), existing contracts to include the FAR clauses for
future orders, if Recovery Act funds will be used. In the event that a
contractor refuses to accept such a modification, the contractor will
not be eligible for receipt of Recovery Act funds.
Comment Date: Interested parties should submit written comments to
the FAR Secretariat on or before June 1, 2009 to be considered in the
formulation of a final rule.
ADDRESSES: Submit comments identified by FAC 2005-32, FAR case 2009-
008, by any of the following methods:
[[Page 14624]]
Regulations.gov: http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://www.regulations.gov. Submit
comments via the Federal eRulemaking portal by inputting ``FAR Case
2009-008'' under the heading ``Comment or Submission''. Select the link
``Send a Comment or Submission'' that corresponds with FAR Case 2009-
008. Follow the instructions provided to complete the ``Public Comment
and Submission Form''. Please include your name, company name (if any),
and ``FAR Case 2009-008'' on your attached document.
Fax: 202-501-4067.
Mail: General Services Administration, FAR Secretariat
(VPR), 1800 F Street, NW., Room 4041, Attn: Hada Flowers, Washington,
DC 20405.
Instructions: Please submit comments only and cite FAC 2005-32, FAR
case 2009-008, in all correspondence related to this case. All comments
received will be posted without change to http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://www.regulations.gov,
including any personal and/or business confidential information
provided.
FOR FURTHER INFORMATION CONTACT: Ms. Meredith Murphy, Procurement
Analyst, at (202) 208-6925 for clarification of content. Please cite
FAC 2005-32, FAR case 2009-008. For information pertaining to status or
publication schedules, contact the FAR Secretariat at (202) 501-4755.
SUPPLEMENTARY INFORMATION:
A. Background
This interim rule implements the Recovery Act with respect to the
unique Buy American provision, section 1605 of the Recovery Act, by
adding a new Subpart 25.6, entitled ``American Recovery and
Reinvestment Act--Buy American Act--Construction Materials,'' and
adding new provisions and clauses at Part 52, with conforming changes
to Subparts 1.1, 5.2, 25.0, 25.2, and 25.11.
On February 17, 2009, the President signed Public Law 111-5, the
American Recovery and Reinvestment Act of 2009, which includes a number
of provisions to be implemented in Federal Government contracts. Among
these provisions is section 1605, entitled ``Buy American.'' It
prohibits the use of funds appropriated or otherwise made available by
the Act for any project for the construction, alteration, maintenance,
or repair of a public building or public work unless all of the iron,
steel, and manufactured goods used in the project are produced in the
United States. The law requires that this prohibition be applied in a
manner consistent with U.S. obligations under international agreements,
and it provides for waiver under three circumstances:
1. Iron, steel, or manufactured goods are not produced in the
United States in sufficient and reasonably available quantities and of
a satisfactory quality;
2. Inclusion of iron, steel, or manufactured goods produced in the
United States will increase the cost of the contract by more than 25
percent; or
3. Applying the domestic preference would be inconsistent with the
public interest.
The implementation of section 1605 is expected to stimulate the
economy by increasing and maintaining jobs in the United States in the
steel, iron, and manufactured construction materials industries and
providing new opportunities to construction firms to win contracts for
construction and public works projects.
B. Discussion
Because of the need to appropriately segregate the unique Buy-
American provisions of the Recovery Act from the requirements of the
Buy American Act and the Trade Agreements Act, the Councils have
decided to include them in a separate subpart of FAR Part 25. Subpart
25.6, currently reserved, will be entitled ``American Recovery and
Reinvestment Act--Buy American Act--Construction Materials.'' A
reference to Subpart 25.6 was added to the ``Scope'' section of Subpart
25.2, Buy American Act--Construction Materials.
Subpart 25.6 includes a policy statement at 25.602 that repeats the
prohibition against using funds appropriated by the Recovery Act for
U.S. construction projects to purchase iron, steel, or other
manufactured goods that were not produced in the U.S. It also notes
that unmanufactured construction materials remain covered by the
provisions of the Buy American Act. The exceptions to this policy (see
Background section above) are similar to those for the Buy American
Act, but the Recovery Act requires publication in the Federal Register
of the detailed written justification that the agency used to make an
exception to the statute. The Councils welcome comments on additional
steps that may enhance transparency consistent with the goals of the
Recovery Act.
In order to enable implementation of the policy, the interim rule
includes definitions of ``steel,'' ``manufactured construction
material,'' ``unmanufactured construction material,'' ``domestic
construction material,'' and ``foreign construction material.'' These
definitions are drawn from existing Federal domestic-sourcing laws and
the longstanding interpretations that have evolved from them. It also
includes a cross reference to the definition of ``public work'' at FAR
22.401, which defines ``public building or public work'' to mean
``uilding or work, the construction, prosecution, completion, or repair
of which * * * is carried on directly by authority of, or with funds
of, a Federal agency to serve the interest of the general public
regardless of whether title thereof is in a Federal agency.''
Because section 1605 does not specify a requirement that
significantly all the components of construction material must also be
domestic, as does the Buy American Act, the definition of domestic
construction material under this interim rule does not include a
requirement relating to the origin of the components of domestic
manufactured construction material. Unmanufactured construction
material is not specifically addressed in section 1605 of the Recovery
Act. However, the Recovery Act's purpose of creating jobs and
stimulating domestic demand is well served by applying the Buy American
Act to unmanufactured construction material.
The rules for preaward determination of the inapplicability of
section 1605 and the Buy American Act are at FAR 25.604.
Section 25.605 addresses the evaluation of offers containing
foreign construction material based on an approved exception for
unreasonable cost. If the contracting officer determines that an
exception based on unreasonable cost of domestic construction material
applies, the contracting officer must evaluate the offer by adding to
the offered price--
(1) 25 percent of the offered price, if foreign iron, steel, or
other manufactured goods are used as construction material based on
unreasonable cost of comparable manufactured domestic construction
material; and
(2) 6 percent of the value of foreign unmanufactured construction
material included in the offer based on unreasonable cost of comparable
domestic unmanufactured construction material.
The text of Subpart 25.6 makes it clear that a determination to
waive the applicability of section 1605 should be made prior to award.
However, section 25.606 recognizes certain limited circumstances in
which a postaward waiver could be made, but only with adequate
consideration from the contractor. A contractor's noncompliance with
section 1605 is addressed at FAR 25.607.
Prescriptions for the use of all of the solicitation provisions and
contract clauses applicable to FAR Part 25 are
[[Page 14625]]
included in a single subpart, 25.11. The Councils have modified section
25.1102, entitled ``Acquisition of Construction,'' to add a new
paragraph that substitutes four new provisions and clauses (with
appropriate alternates), to be used when contracting with funds
appropriated by the Recovery Act, for the four clauses otherwise used
in construction contracts to implement the Buy American Act and U.S.
obligations under applicable trade agreements. Specifically, when using
Recovery Act appropriated funds, contracting officers will use--
52.225-21, Required Use of American Iron, Steel, and
Manufactured Goods--Buy American Act--Construction Materials, instead
of 52.225-9, Buy American Act--Construction Materials;
52.225-22, Notice of Required Use of American Iron, Steel,
and Other Manufactured Goods--Buy American Act--Construction Materials,
instead of 52.225-10, Notice of Buy American Act Requirement--
Construction Materials;
52.225-23, Required Use of American Iron, Steel, and Other
Manufactured Goods and Buy American Act--Construction Materials Under
Trade Agreements, instead of 52.225-11, Buy American Act--Construction
Materials under Trade Agreements; and
52.225-24, Notice of Required Use of American Iron, Steel,
and Other Manufactured Goods and Buy American Act--Construction
Materials under Trade Agreements, instead of 52.225-12, Notice of Buy
American Act Requirement--Construction Materials under Trade
Agreements.
The clauses are unique in that, for Recovery Act-funded
construction projects, the 25 percent price adjustment factor for non-
U.S. iron, steel, and other foreign manufactured construction material
excepted from the section 1605 requirement on the basis of unreasonable
cost is applied to the entire price of the project, not only to the
cost of the foreign materials. The 6 percent adjustment for the Buy
American Act is retained and applied to the cost of foreign
unmanufactured goods excepted from the requirements of the Buy American
Act on the basis of unreasonable cost. Given the applicability of the
Recovery Act to iron, steel, and manufactured goods, the definition of
``component'' is unnecessary in these clauses, because the definition
of domestic construction material no longer includes a requirement
relating to the origin of components.
However, if trade agreements apply to the acquisition, the use of
the provision and clause 52.225-23 and 52.225-24, respectively, ensures
that eligible construction material from designated countries is
treated in accordance with Subpart 25.4. No evaluation factor is
applied to offers on the basis of using eligible construction material.
This provision and clause retain the same basic processes that are used
in the standard construction clauses, except for the specific changes
that have been addressed relating to new requirements of section 1605
of the Recovery Act.
In the Recovery Act conference report, Congress expressed its
intent that least developed countries be excepted from section 1605 and
that they retain their status as designated countries. However, with
respect to Caribbean Basin countries, Congress did not express a
similar intent. Therefore, Caribbean Basin countries are not included
as designated countries with respect to the Recovery Act.
C. Applicability to Contracts at or Below the Simplified Acquisition
Threshold
Section 4101 of Public Law 103-355, the Federal Acquisition
Streamlining Act (FASA) (41 U.S.C. 429), governs the applicability of
laws to contracts or subcontracts in amounts not greater than the
simplified acquisition threshold. It is intended to limit the
applicability of laws to them. FASA provides that if a provision of law
contains criminal or civil penalties, or if the Federal Acquisition
Regulatory Council makes a written determination that it is not in the
best interest of the Federal Government to exempt contracts or
subcontracts at or below the simplified acquisition threshold, the law
will apply to them.
Therefore, given section 1605 of the Recovery Act, which
establishes Buy American requirements for projects funded by the
Recovery Act, the FAR Council has determined that this rule should
apply to contracts or subcontracts at or below the simplified
acquisition threshold, as defined at 2.101.
This is a significant regulatory action and, therefore, was subject
to Office of Management and Budget (OMB) review under Section 6 of
Executive Order 12866, Regulatory Planning and Review, dated September
30, 1993. This rule is not a major rule under 5 U.S.C. 804.
D. Regulatory Flexibility Act
The Councils do not expect this interim rule to have a significant
economic impact on a substantial number of small entities within the
meaning of the Regulatory Flexibility Act, 5 U.S.C. 601, et seq., for
the following reasons. This interim rule will only impact an offeror
that wants to use non-U.S. iron, steel, and other manufactured goods in
a construction project in the United States. The Councils believe that
there are adequate domestic sources for these materials, and the Office
of Management and Budget (OMB) guidance M-09-10 issued February 18,
2009, entitled ``Initial Implementing Guidance for the American
Recovery and Reinvestment Act of 2009,'' provides a strong preference
for using small businesses for Recovery Act projects wherever possible.
Therefore, an Initial Regulatory Flexibility Analysis has not been
performed. The Councils will consider comments from small entities
concerning the affected FAR Parts 1, 5, 25, and 52 in accordance with 5
U.S.C. 610. Interested parties must submit such comments separately and
should cite 5 U.S.C. 601, et seq. (FAC 2005-32, FAR case 2009-008), in
all correspondence.
E. Paperwork Reduction Act
The Paperwork Reduction Act does apply; however, these changes to
the FAR do not impose additional information collection requirements to
the paperwork burden previously approved under OMB Control Number 9000-
0141. However, the information collection requirements imposed by the
provisions 52.225-22 and 52.225-24 are currently covered by the
approved information collection requirements for provisions 52.225-9
and 52.225-11 (OMB Control number 9000-0141, entitled Buy American
Act--Construction--FAR Sections Affected: Subpart 25.2; 52.225-9; and
52.225-11). While the Councils believe no changes will be needed to the
collection due to the interim regulation, comments are welcome during
the 60 day comment period with regard to the data elements, the burden,
or any other part of the collection.
F. Determination To Issue an Interim Rule
A determination has been made under the authority of the Secretary
of Defense (DoD), the Administrator of General Services (GSA), and the
Administrator of the National Aeronautics and Space Administration
(NASA) that urgent and compelling reasons exist to promulgate this
interim rule without prior opportunity for public comment. This action
is necessary because the American Recovery and Reinvestment Act of 2009
became effective upon enactment, and contracts using funds appropriated
by the Recovery Act will soon be ready to award. However, pursuant to
Public Law 98-577 and FAR 1.501, the Councils will consider public
comments received in response to this
[[Page 14626]]
interim rule in the formation of the final rule.
List of Subjects in 48 CFR Parts 1, 5, 25, and 52
Government procurement.
Dated: March 25, 2009.
Al Matera,
Director, Office of Acquisition Policy.
0
Therefore, DoD, GSA, and NASA amend 48 CFR parts 1, 5, 25, and 52 as
set forth below:
0
1. The authority citation for 48 CFR parts 1, 5, 25, and 52 continues
to read as follows:
Authority: 40 U.S.C. 121(c); 10 U.S.C. chapter 137; and 42
U.S.C. 2473(c).
PART 1--FEDERAL ACQUISITION REGULATIONS SYSTEM
1.106 [Amended]
0
2. Amend section 1.106, in the table following the introductory
paragraph, by adding, in numerical sequence, FAR segments 52.225-21 and
52.225-23, and their corresponding OMB Control Number 9000-0141.
PART 5--PUBLICIZING CONTRACT ACTIONS
0
3. Amend section 5.207 by revising paragraph (c)(13)(iii) to read as
follows:
5.207 Preparation and transmittal of synopses.
* * * * *
(c) * * *
(13) * * *
(iii) If the solicitation will include the FAR clause at 52.225-11,
Buy American Act--Construction Materials under Trade Agreements,
52.225-23, Required Use of American Iron, Steel, and Other Manufactured
Goods--Buy American Act--Construction Materials under Trade Agreements,
or an equivalent agency clause, insert the following notice in the
synopsis: ``One or more of the items under this acquisition is subject
to the World Trade Organization Government Procurement Agreement and
Free Trade Agreements.''
* * * * *
PART 25--FOREIGN ACQUISITION
0
4. Amend section 25.001 by revising paragraph (c)(1) and adding a new
paragraph (c)(4) to read as follows:
25.001 General.
* * * * *
(c) * * *
(1) The Buy American Act uses a two-part test to define a
``domestic end product'' or ``domestic construction material''
(manufactured in the United States and a formula based on cost of
domestic components). The component test has been waived for
acquisition of commercially available off-the-shelf items.
* * * * *
(4) When using funds appropriated under the American Recovery and
Reinvestment Act of 2009 (Pub. L. 111-5), the definition of ``domestic
manufactured construction material'' requires manufacture in the United
States but does not include a requirement with regard to the origin of
the components.
25.002 [Amended]
0
5. Amend the table in section 25.002, by removing from the sixth row
``[Reserved]'' and adding ``American Recovery and Reinvestment Act--Buy
American Act--Construction Materials'' in its place, and in the fifth
column adding ``X''.
0
6. Add Subpart 25.6 to read as follows:
Subpart 25.6--American Recovery and Reinvestment Act--Buy American
Act--Construction Materials
Sec.
25.600 Scope of subpart.
25.601 Definitions.
25.602 Policy.
25.603 Exceptions.
25.604 Preaward determination concerning the inapplicability of
section 1605 of the Recovery Act or the Buy American Act.
25.605 Evaluating offers of foreign construction material.
25.606 Postaward determinations.
25.607 Noncompliance.
Subpart 25.6--American Recovery and Reinvestment Act--Buy American
Act--Construction Materials
25.600 Scope of subpart.
This subpart implements section 1605 in Division A of the American
Recovery and Reinvestment Act of 2009 (Pub. L. 111-5) (Recovery Act)
and the Buy American Act. It applies to construction projects that use
funds appropriated or otherwise provided by the Recovery Act.
25.601 Definitions.
As used in this subpart--
Domestic construction material means--
(1) An unmanufactured construction material mined or produced in
the United States; or
(2) A construction material manufactured in the United States.
Foreign construction material means a construction material other
than a domestic construction material.
Manufactured construction material means any construction material
that is not unmanufactured construction material.
Recovery Act designated country means a World Trade Organization
Government Procurement Agreement country, a Free Trade Agreement
country, or a least developed country.
Steel means an alloy that includes at least 50 percent iron,
between .02 and 2 percent carbon, and may include other elements.
Unmanufactured construction material means raw material brought to
the construction site for incorporation into the building or work that
has not been--
(1) Processed into a specific form and shape; or
(2) Combined with other raw material to create a material that has
different properties than the properties of the individual raw
materials.
25.602 Policy.
Except as provided in 25.603--
(a) None of the funds appropriated or otherwise made available by
the Recovery Act may be used for a project for the construction,
alteration, maintenance, or repair of a public building or public work
(as defined at 22.401) unless--
(1) The public building or public work is located in the United
States; and
(2) All of the iron, steel, and other manufactured goods used as
construction material in the project are produced or manufactured in
the United States.
(i) Production in the United States of the iron or steel used as
construction material requires that all manufacturing processes must
take place in the United States, except metallurgical processes
involving refinement of steel additives. These requirements do not
apply to steel or iron used as components or subcomponents of other
manufactured construction material.
(ii) There is no requirement with regard to the origin of
components or subcomponents in other manufactured construction
material, as long as the manufacture of the construction material
occurs in the United States.
(b) Use only domestic unmanufactured construction material, as
required by the Buy American Act.
25.603 Exceptions.
(a) When one of the following exceptions applies, the contracting
officer may allow the contractor to incorporate foreign construction
materials without regard to the restrictions of section 1605 of the
Recovery Act or the Buy American Act:
[[Page 14627]]
(1) Nonavailability. The head of the contracting activity may
determine that a particular construction material is not mined,
produced, or manufactured in the United States in sufficient and
reasonably available commercial quantities of a satisfactory quality.
The determinations of nonavailability of the articles listed at
25.104(a) and the procedures at 25.103(b)(1) also apply if any of those
articles are acquired as construction materials.
(2) Unreasonable cost. The contracting officer concludes that the
cost of domestic construction material is unreasonable in accordance
with 25.605.
(3) Inconsistent with public interest. The head of the agency may
determine that application of the restrictions of section 1605 of the
Recovery Act or the Buy American Act to a particular construction
material would be inconsistent with the public interest.
(b) Determinations. When a determination is made, for any of the
reasons stated in this section, that certain foreign construction
materials may be used--
(1) The contracting officer shall list the excepted materials in
the contract; and
(2) The head of the agency shall publish a notice in the Federal
Register within two weeks after the determination is made, unless the
construction material has already been determined in the FAR to be
domestically nonavailable (see list at 25.104). The notice shall
include--
(i) The title ``Buy American Exception under the American Recovery
and Reinvestment Act of 2009'';
(ii) The dollar value and brief description of the project; and
(iii) A detailed justification as to why the restriction is being
waived.
(c) Acquisitions under trade agreements. (1) For construction
contracts with an estimated acquisition value of $7,443,000 or more,
also see Subpart 25.4. Offers of products determined to be eligible
products per Subpart 25.4 shall receive equal consideration with
domestic offers per Subpart 25.4.
(2) For purposes of the Recovery Act, designated countries do not
include the Caribbean Basin Countries.
25.604 Preaward determination concerning the inapplicability of
section 1605 of the Recovery Act or the Buy American Act.
(a) For any acquisition, an offeror may request from the
contracting officer a determination concerning the inapplicability of
section 1605 of the Recovery Act or the Buy American Act for
specifically identified construction materials. The time for submitting
the request is specified in the solicitation in paragraph (b) of either
52.225-22 or 52.225-24, whichever applies. The information and
supporting data that must be included in the request are also specified
in the solicitation in paragraphs (c) and (d) of either 52.225-21 or
52.225-23, whichever applies.
(b) Before award, the contracting officer must evaluate all
requests based on the information provided and may supplement this
information with other readily available information.
(c) Determination based on unreasonable cost of domestic
construction material.
(1) Iron, steel, and other manufactured construction material. The
contracting officer must compare the offered price of the contract
using foreign manufactured construction material to the estimated price
if all domestic manufactured construction material were used. If use of
domestic manufactured construction material would increase the overall
offered price of the contract by more than 25 percent, then the
contracting officer shall determine that the cost of the domestic
manufactured construction material is unreasonable.
(2) Unmanufactured construction material. The contracting officer
must compare the cost of each foreign unmanufactured construction
material to the cost of domestic unmanufactured construction material.
If the cost of the domestic unmanufactured construction material
exceeds the cost of the foreign unmanufactured construction material by
more than 6 percent, then the contracting officer shall determine that
the cost of the unmanufactured construction material is unreasonable.
25.605 Evaluating offers of foreign construction material.
(a) If the contracting officer has determined that an exception
applies because the cost of certain domestic construction material is
unreasonable, in accordance with section 25.604, then the contracting
officer shall apply evaluation factors to the offer incorporating the
use of such foreign construction material as follows:
(1) Use an evaluation factor of 25 percent, applied to the total
offered price of the contract, if foreign iron, steel, or other
manufactured goods are incorporated in the offer as construction
material based on an exception for unreasonable cost requested by the
offeror.
(2) In addition, use an evaluation factor of 6 percent applied to
the cost of foreign unmanufactured construction material incorporated
in the offer based on an exception for unreasonable cost requested by
the offeror.
(3) Total evaluated price = offered price + (.25 x offered price,
if (a)(1) applies) + (.06 x cost of foreign unmanufactured construction
material, if (a)(2) applies).
(b) If two or more offers are equal in price, the contracting
officer must give preference to an offer that does not include foreign
construction material excepted at the request of the offeror on the
basis of unreasonable cost.
(c) Offerors also may submit alternate offers based on use of
equivalent domestic construction material to avoid possible rejection
of the entire offer if the Government determines that an exception
permitting use of a particular foreign construction material does not
apply.
(d) If the contracting officer awards a contract to an offeror that
proposed foreign construction material not listed in the applicable
clause in the solicitation (paragraph (b)(3) of 52.225-21, or paragraph
(b)(3) of 52.225-23), the contracting officer must add the excepted
materials to the list in the contract clause.
25.606 Postaward determinations.
(a) If a contractor requests a determination regarding the
inapplicability of section 1605 of the Recovery Act or the Buy American
Act after contract award, the contractor must explain why it could not
request the determination before contract award or why the need for
such determination otherwise was not reasonably foreseeable. If the
contracting officer concludes that the contractor should have made the
request before contract award, the contracting officer may deny the
request.
(b) The contracting officer must base evaluation of any request for
a determination regarding the inapplicability of section 1605 of the
Recovery Act or the Buy American Act made after contract award on
information required by paragraphs (c) and (d) of the applicable clause
at 52.225-21 or 52.225-23 and/or other readily available information.
(c) If a determination, under 25.603(a), is made after contract
award that an exception to section 1605 of the Recovery Act or to the
Buy American Act applies, the contracting officer must negotiate
adequate consideration and modify the contract to allow use of the
foreign construction material. When the basis for the exception is the
unreasonable cost of a domestic construction material, adequate
[[Page 14628]]
consideration is at least the differential established in 25.605(a).
25.607 Noncompliance.
The contracting officer must--
(a) Review allegations of violations of section 1605 of the
Recovery Act or Buy American Act;
(b) Unless fraud is suspected, notify the contractor of the
apparent unauthorized use of foreign construction material and request
a reply, to include proposed corrective action; and
(c) If the review reveals that a contractor or subcontractor has
used foreign construction material without authorization, take
appropriate action, including one or more of the following:
(1) Process a determination concerning the inapplicability of
section 1605 of the Recovery Act or the Buy American Act in accordance
with 25.606.
(2) Consider requiring the removal and replacement of the
unauthorized foreign construction material.
(3) If removal and replacement of foreign construction material
incorporated in a building or work would be impracticable, cause undue
delay, or otherwise be detrimental to the interests of the Government,
the contracting officer may determine in writing that the foreign
construction material need not be removed and replaced. A determination
to retain foreign construction material does not constitute a
determination that an exception to section 1605 of the Recovery Act or
the Buy American Act applies, and this should be stated in the
determination. Further, a determination to retain foreign construction
material does not affect the Government's right to suspend or debar a
contractor, subcontractor, or supplier for violation of section 1605 of
the Recovery Act or the Buy American Act, or to exercise other
contractual rights and remedies, such as reducing the contract price or
terminating the contract for default.
(4) If the noncompliance is sufficiently serious, consider
exercising appropriate contractual remedies, such as terminating the
contract for default. Also consider preparing and forwarding a report
to the agency suspension or debarment official in accordance with
Subpart 9.4. If the noncompliance appears to be fraudulent, refer the
matter to other appropriate agency officials, such as the officer
responsible for criminal investigation.
0
7. Amend section 25.1102 by adding an introductory paragraph; revising
paragraph (c)(1); and adding paragraph (e) to read as follows:
25.1102 Acquisition of construction.
When using funds other than those appropriated under the American
Recovery and Reinvestment Act of 2009 (Pub. L. 111-5) (Recovery Act),
follow the prescriptions in paragraphs (a) through (d) of this section.
Otherwise, follow the prescription in paragraph (e).
* * * * *
(c) * * *
(1) List in paragraph (b)(3) of the clause all foreign construction
material excepted from the requirements of the Buy American Act, other
than designated country construction material.
* * * * *
(e)(1) When using funds appropriated under the Recovery Act for
construction, use provisions and clauses 52.225-21, 52.225-22, 52.225-
23, or 52.225-24 (with appropriate Alternates) in lieu of the
provisions and clauses 52.225-9, 52.225-10, 52.225-11, or 52.225-12
(with appropriate Alternates), respectively, that would be applicable
as prescribed in paragraphs (a) through (d) of this section if Recovery
Act funds were not used.
(2) When using clause 52.225-23, list foreign construction material
in paragraph (b)(3) of the clause as follows:
(i) Basic clause. List all foreign construction material excepted
from the requirements of the Buy American Act, other than Recovery Act
designated country construction material.
(ii) Alternate I--List in paragraph (b)(3) of the clause all
foreign construction material excepted from the requirements of the Buy
American Act, unless the excepted foreign construction material is from
a Recovery Act designated country other than Bahrain, Mexico, or Oman.
PART 52--SOLICITATION PROVISIONS AND CONTRACT CLAUSES
0
8. Add section 52.225-21 through 52.225-24 to read as follows:
52.225-21 Required Use of American Iron, Steel, and Other
Manufactured Goods--Buy American Act--Construction Materials.
As prescribed in 25.1102(e), insert the following clause:
Required Use of American Iron, Steel, and Manufactured Goods-Buy
American Act--Construction Materials MAR 2009)
(a) Definitions. As used in this clause--
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.
Domestic construction material means--
(1) An unmanufactured construction material mined or produced in
the United States; or
(2) A construction material manufactured in the United States.
Foreign construction material means a construction material other
than a domestic construction material.
Manufactured construction material means any construction material
that is not unmanufactured construction material.
Steel means an alloy that includes at least 50 percent iron,
between .02 and 2 percent carbon, and may include other elements.
United States means the 50 States, the District of Columbia, and
outlying areas.
Unmanufactured construction material means raw material brought to
the construction site for incorporation into the building or work that
has not been--
(1) Processed into a specific form and shape; or
(2) Combined with other raw material to create a material that has
different properties than the properties of the individual raw
materials.
(b) Domestic preference. (1) This clause implements--
(i) Section 1605 of the American Recovery and Reinvestment Act of
2009 (Recovery Act) (Pub. L. 111-5), by requiring, unless an exception
applies, that all iron, steel, and other manufactured goods used as
construction material in the project are produced in the United States;
and
(ii) The Buy American Act (41 U.S.C. 10a-10d) by providing a
preference for unmanufactured domestic construction material.
(2) The Contractor shall use only domestic construction material in
performing this contract, except as provided in paragraph (b)(3) and
(b)(4) of this clause.
(3) This requirement does not apply to the construction material or
components listed by the Government as follows:
[[Page 14629]]
-----------------------------------------------------------------------
[Contracting Officer to list applicable excepted materials or indicate
``none'']
(4) The Contracting Officer may add other foreign construction
material to the list in paragraph (b)(3) of this clause if the
Government determines that--
(i) The cost of domestic construction material would be
unreasonable.
(A) The cost of domestic iron, steel, or other manufactured goods
used as construction material is unreasonable when the cumulative cost
of such material will increase the cost of the contract by more than 25
percent;
(B) The cost of unmanufactured construction material is
unreasonable when the cost of such material exceeds the cost of foreign
material by more than 6 percent;
(ii) The construction material is not mined, produced, or
manufactured in the United States in sufficient and reasonably
available quantities and of a satisfactory quality; or
(iii) The application of the restriction of section 1605 of the
Recovery Act or the Buy American Act to a particular construction
material would be inconsistent with the public interest.
(c) Request for determination of inapplicability of Section 1605 of
the Recovery Act or the Buy American Act. (1)(i) Any Contractor request
to use foreign construction material in accordance with paragraph
(b)(4) of this clause shall include adequate information for Government
evaluation of the request, including--
(A) A description of the foreign and domestic construction
materials;
(B) Unit of measure;
(C) Quantity;
(D) Cost;
(E) Time of delivery or availability;
(F) Location of the construction project;
(G) Name and address of the proposed supplier; and
(H) A detailed justification of the reason for use of foreign
construction materials cited in accordance with paragraph (b)(4) of
this clause.
(ii) A request based on unreasonable cost shall include a
reasonable survey of the market and a completed cost comparison table
in the format in paragraph (d) of this clause.
(iii) The cost of construction material shall include all delivery
costs to the construction site and any applicable duty.
(iv) Any Contractor request for a determination submitted after
contract award shall explain why the Contractor could not reasonably
foresee the need for such determination and could not have requested
the determination before contract award. If the Contractor does not
submit a satisfactory explanation, the Contracting Officer need not
make a determination.
(2) If the Government determines after contract award that an
exception to section 1605 of the Recovery Act or the Buy American Act
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 cost of a domestic
construction material, adequate consideration is not less than the
differential established in paragraph (b)(4)(i) of this clause.
(3) Unless the Government determines that an exception to section
1605 of the Recovery Act or the Buy American Act applies, use of
foreign construction material is noncompliant with section 1605 of the
American Recovery and Reinvestment Act or the Buy American Act.
(d) Data. To 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:
Foreign and Domestic Construction Materials Cost Comparison
----------------------------------------------------------------------------------------------------------------
Cost (dollars)
Construction material description Unit of measure Quantity *
----------------------------------------------------------------------------------------------------------------
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 reponse; if oral,
attach summary.] [Include other applicable supportinginformation.]
*Include all delivery costs to the construction site.]
(End of clause)
52.225-22 Notice of Required Use of American Iron, Steel, and Other
Manufactured Goods--Buy American Act--Construction Materials.
As prescribed in 25.1102(e), insert the following provision:
NOTICE OF REQUIRED USE OF AMERICAN IRON, STEEL, AND OTHER MANUFACTURED
GOODS--BUY AMERICAN ACT--CONSTRUCTION MATERIALS (MAR 2009)
(a) Definitions. ``Construction material,'' ``domestic construction
material,'' ``foreign construction material,'' ``manufactured
construction material,'' ``steel,'' and ``unmanufactured construction
material,'' as used in this provision, are defined in the clause of
this solicitation entitled ``Required Use of Iron, Steel, and Other
Manufactured Goods--Buy American Act--Construction Materials'' (Federal
Acquisition Regulation (FAR) clause 52.225-21).
(b) Requests for determinations of inapplicability. An offeror
requesting a determination regarding the inapplicability of section
1605 of the American Recovery and Reinvestment Act of 2009 (Pub. L.
111-5) (Recovery Act) or the Buy American Act should submit the request
to the Contracting Officer in time to allow a determination before
submission of offers. The offeror shall include the information and
applicable supporting data required by paragraphs (c) and (d) of the
clause at FAR 52.225-21 in the request. If an offeror has not requested
a determination regarding the inapplicability of 1605 of the Recovery
Act or the Buy American Act before submitting its offer, or has not
received a response to a previous request, the offeror shall include
the information and supporting data in the offer.
(c) Evaluation of offers. (1) If the Government determines that an
exception based on unreasonable cost of domestic construction material
applies, the Government will evaluate an offer
[[Page 14630]]
requesting exception to the requirements of section 1605 of the
Recovery Act or the Buy American Act by adding to the offered price of
the contract--
(i) 25 percent of the offered price of the contract, if foreign
iron, steel, or other manufactured goods are used as construction
material based on unreasonable cost of comparable manufactured domestic
construction material; and
(ii) 6 percent of the cost of foreign unmanufactured construction
material included in the offer based on unreasonable cost of comparable
domestic unmanufactured construction material.
(2) If two or more offers are equal in price, the Contracting
Officer will give preference to an offer that does not include foreign
construction material excepted at the request of the offeror on the
basis of unreasonable cost.
(d) Alternate offers. (1) When an offer includes foreign
construction material not listed by the Government in this solicitation
in paragraph (b)(2) of the clause at FAR 52.225-21, the offeror also
may submit an alternate offer based on use of equivalent domestic
construction material.
(2) If an alternate offer is submitted, the offeror shall submit a
separate Standard Form 1442 for the alternate offer and a separate cost
comparison table prepared in accordance with paragraphs (c) and (d) of
the clause at FAR 52.225-21 for the offer that is based on the use of
any foreign construction material for which the Government has not yet
determined an exception applies.
(3) If the Government determines that a particular exception
requested in accordance with paragraph (c) of the clause at FAR 52.225-
21 does not apply, the Government will evaluate only those offers based
on use of the equivalent domestic construction material, and the
offeror shall be required to furnish such domestic construction
material. An offer based on use of the foreign construction material
for which an exception was requested--
(i) Will be rejected as nonresponsive if this acquisition is
conducted by sealed bidding; or
(ii) May be accepted if revised during negotiations.
(End of provision)
Alternate I (MAR 2009]). As prescribed in 25.1102(e), substitute
the following paragraph (b) for paragraph (b) of the basic provision:
(b) Requests for determinations of inapplicability. An offeror
requesting a determination regarding the inapplicability of section
1605 of the American Recovery and Reinvestment Act of 2009 (Pub. L.
111-5) (Recovery Act) or the Buy American Act shall submit the request
with its offer, including the information and applicable supporting
data required by paragraphs (c) and (d) of the clause at FAR 52.225-21.
52.225-23 Required Use of American Iron, Steel, and Other
Manufactured Goods--Buy American Act--Construction Materials under
Trade Agreements.
As prescribed in 25.1102(e), insert the following clause:
Required Use of American Iron, Steel, and Other Manufactured Goods--Buy
American Act--Construction Materials Under Trade Agreements MAR 2009)
(a) Definitions. As used in this clause--
Construction material means an article, material, or supply brought
to the construction site by the Contractor or 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.
Domestic construction material means-- (1) An unmanufactured
construction material mined or produced in the United States; or
(2) A construction material manufactured in the United States.
Foreign construction material means a construction material other
than a domestic construction material.
Free trade agreement (FTA) country construction material means a
construction material that--
(1) Is wholly the growth, product, or manufacture of an FTA
country; or
(2) In the case of a construction material that consists in whole
or in part of materials from another country, has been substantially
transformed in an FTA country into a new and different construction
material distinct from the materials from which it was transformed.
Least developed country construction material means a construction
material that--
(1) Is wholly the growth, product, or manufacture of a least
developed country; or
(2) In the case of a construction material that consists in whole
or in part of materials from another country, has been substantially
transformed in a least developed country into a new and different
construction material distinct from the materials from which it was
transformed.
Manufactured construction material means any construction material
that is not unmanufactured construction material.
Recovery Act designated country means any of the following
countries:
(1) A World Trade Organization Government Procurement Agreement
(WTO GPA) country (Aruba, Austria, Belgium, Bulgaria, Canada, Cyprus,
Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece,
Hong Kong, Hungary, Iceland, Ireland, Israel, Italy, Japan, Korea
(Republic of), Latvia, Liechtenstein, Lithuania, Luxembourg, Malta,
Netherlands, Norway, Poland, Portugal, Romania, Singapore, Slovak
Republic, Slovenia, Spain, Sweden, Switzerland, or United Kingdom);
(2) A Free Trade Agreement country (FTA)(Australia, Bahrain,
Canada, Chile, Costa Rica, Dominican Republic, El Salvador, Guatemala,
Honduras, Israel, Mexico, Morocco, Nicaragua, Oman, Peru, or
Singapore); or
(3) A least developed country (Afghanistan, Angola, Bangladesh,
Benin, Bhutan, Burkina Faso, Burundi, Cambodia, Central African
Republic, Chad, Comoros, Democratic Republic of Congo, Djibouti, East
Timor, Equatorial Guinea, Eritrea, Ethiopia, Gambia, Guinea, Guinea-
Bissau, Haiti, Kiribati, Laos, Lesotho, Liberia, Madagascar, Malawi,
Maldives, Mali, Mauritania, Mozambique, Nepal, Niger, Rwanda, Samoa,
Sao Tome and Principe, Senegal, Sierra Leone, Solomon Islands, Somalia,
Tanzania, Togo, Tuvalu, Uganda, Vanuatu, Yemen, or Zambia).
Recovery Act designated country construction material means a
construction material that is a WTO GPA country construction material,
an FTA country construction material, or a least developed country
construction material.
Steel means an alloy that includes at least 50 percent iron,
between .02 and 2 percent carbon, and may include other elements.
United States means the 50 States, the District of Columbia, and
outlying areas.
Unmanufactured construction material means raw material brought to
the construction site for incorporation into the building or work that
has not been--
[[Page 14631]]
(1) Processed into a specific form and shape; or
(2) Combined with other raw material to create a material that has
different properties than the properties of the individual raw
materials.
WTO GPA country construction material means a construction material
that--
(1) Is wholly the growth, product, or manufacture of a WTO GPA
country; or
(2) In the case of a construction material that consists in whole
or in part of materials from another country, has been substantially
transformed in a WTO GPA country into a new and different construction
material distinct from the materials from which it was transformed.
(b) Construction materials. (1) The restrictions of section 1605 of
the American Recovery and Reinvestment Act of 2009 (Pub. L. 111-5)
(Recovery Act) and the Buy American Act (41 U.S.C. 10a-10d) do not
apply to Recovery Act designated country construction material.
Consistent with U.S. obligations under international agreements, this
clause implements--
(i) Section 1605 of the Recovery Act by requiring, unless an
exception applies, that all iron, steel, and other manufactured goods
used as construction material in the project are produced in the United
States; and
(ii) The Buy American Act by providing a preference for
unmanufactured domestic construction material.
(2) The Contractor shall use only domestic or Recovery Act
designated country construction material in performing this contract,
except as provided in paragraphs (b)(3) and (b)(4) of this clause.
(3) The requirement in paragraph (b)(2) of this clause does not
apply to the construction materials or components listed by the
Government as follows:
-----------------------------------------------------------------------
[Contracting Officer to list applicable excepted materials or indicate
``none''.]
(4) The Contracting Officer may add other construction material to
the list in paragraph (b)(3) of this clause if the Government
determines that--
(i) The cost of domestic construction material would be
unreasonable.
(A) The cost of domestic iron, steel, or other manufactured goods
used as construction material is unreasonable when the cumulative cost
of such material will increase the overall cost of the contract by more
than 25 percent;
(B) The cost of unmanufactured construction material is
unreasonable when the cost of such material exceeds the cost of foreign
material by more than 6 percent;
(ii) The construction material is not mined, produced, or
manufactured in the United States in sufficient and reasonably
available commercial quantities of a satisfactory quality; or
(iii) The application of the restriction of section 1605 of the
Recovery Act or the Buy American Act to a particular construction
material would be inconsistent with the public interest.
(c) Request for determination of inapplicability of section 1605 of
the Recovery Act or the Buy American Act.
(1)(i) Any Contractor request to use foreign construction material
in accordance with paragraph (b)(4) of this clause shall include
adequate information for Government evaluation of the request,
including--
(A) A description of the foreign and domestic construction
materials;
(B) Unit of measure;
(C) Quantity;
(D) Cost;
(E) Time of delivery or availability;
(F) Location of the construction project;
(G) Name and address of the proposed supplier; and
(H) A detailed justification of the reason for use of foreign
construction materials cited in accordance with paragraph (b)(4) of
this clause.
(ii) A request based on unreasonable cost shall include a
reasonable survey of the market and a completed cost comparison table
in the format in paragraph (d) of this clause.
(iii) The cost of construction material shall include all delivery
costs to the construction site and any applicable duty.
(iv) Any Contractor request for a determination submitted after
contract award shall explain why the Contractor could not reasonably
foresee the need for such determination and could not have requested
the determination before contract award. If the Contractor does not
submit a satisfactory explanation, the Contracting Officer need not
make a determination.
(2) If the Government determines after contract award that an
exception to section 1605 of the Recovery Act or the Buy American Act
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 cost of a domestic
construction material, adequate consideration is not less than the
differential established in paragraph (b)(4)(i) of this clause.
(3) Unless the Government determines that an exception to the
section 1605 of the Recovery Act or the Buy American Act applies, use
of foreign construction material other than that covered by trade
agreements is noncompliant with the applicable Act.
(d) Data. To 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:
Foreign and Domestic Construction Materials Cost Comparison
----------------------------------------------------------------------------------------------------------------
Construction material description Unit of measure Quantity Cost (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.]
(End of clause)
Alternate I (MAR 2009). As prescribed in 25.1102(e), add the
following definition of ``Bahrainian, Mexican, or Omani construction
material'' to
[[Page 14632]]
paragraph (a) of the basic clause, and substitute the following
paragraphs (b)(1) and (b)(2) for paragraphs (b)(1) and (b)(2) of the
basic clause:
Bahrainian, Mexican, or Omani construction material'' means a
construction material that--
(1) Is wholly the growth, product, or manufacture of Bahrain,
Mexico, or Oman; or
(2) In the case of a construction material that consists in whole
or in part of materials from another country, has been substantially
transformed in Bahrain, Mexico, or Oman into a new and different
construction material distinct from the materials from which it was
transformed.
(b) Construction materials. (1) The restrictions of section 1605 of
the American Recovery and Reinvestment Act of 2009 (Pub. L. 111-5)
(Recovery Act) and the Buy American Act do not apply to Recovery Act
designated country construction material. Consistent with U.S.
obligations under international agreements, this clause implements--
(i) Section 1605 of the Recovery Act, by requiring, unless an
exception applies, that all iron, steel, and other manufactured goods
used as construction material in the project are produced in the United
States; and
(ii) The Buy American Act providing a preference for unmanufactured
domestic construction material.
(2) The Contractor shall use only domestic or Recovery Act
designated country construction material other than Bahrainian,
Mexican, or Omani construction material in performing this contract,
except as provided in paragraphs (b)(3) and (b)(4) of this clause.
52.225-24 Notice of Required Use of American Iron, Steel, and Other
Manufactured Goods--Buy American Act--Construction Materials under
Trade Agreements.
As prescribed in 25.1102(e), insert the following provision:
Notice of Required Use Of American Iron, Steel, and Other Manufactured
Goods--Buy American Act--Construction Materials Under Trade Agreements
(MAR 2009)
(a) Definitions. ``Construction material,'' ``domestic construction
material,'' ``foreign construction material,'' ``manufactured
construction material,'' ``Recovery Act designated country construction
material,'' ``steel,'' and ``unmanufactured construction material,'' as
used in this provision, are defined in the clause of this solicitation
entitled ``Required Use of Iron, Steel, and Other Manufactured Goods--
Buy American Act--Construction Materials Under Trade Agreements''
(Federal Acquisition Regulation (FAR) clause 52.225-23).
(b) Requests for determination of inapplicability. An offeror
requesting a determination regarding the inapplicability of section
1605 of the American Recovery and Reinvestment Act of 2009 (Pub. L.
111-5) (Recovery Act) or the Buy American Act should submit the request
to the Contracting Officer in time to allow a determination before
submission of offers. The offeror shall include the information and
applicable supporting data required by paragraphs (c) and (d) of FAR
clause 52.225-23 in the request. If an offeror has not requested a
determination regarding the inapplicability of section 1605 of the
Recovery Act or the Buy American Act before submitting its offer, or
has not received a response to a previous request, the offeror shall
include the information and supporting data in the offer.
(c) Evaluation of offers. (1) If the Government determines that an
exception based on unreasonable cost of domestic construction material
applies, the Government will evaluate an offer requesting exception to
the requirements of section 1605 of the Recovery Act or the Buy
American Act by adding to the offered price of the contract--
(i) 25 percent of the offered price of the contract, if foreign
iron, steel, or other manufactured goods are used as construction
material based on unreasonable cost of comparable manufactured domestic
construction material; and
(ii) 6 percent of the cost of foreign unmanufactured construction
material included in the offer based on unreasonable cost of comparable
domestic unmanufactured construction material.
(2) If two or more offers are equal in price, the Contracting
Officer will give preference to an offer that does not include foreign
construction material excepted at the request of the offeror on the
basis of unreasonable cost.
(d) Alternate offers. (1) When an offer includes foreign
construction material, other than Recovery Act designated country
construction material, that is not listed by the Government in this
solicitation in paragraph (b)(3) of FAR clause 52.225-23, the offeror
also may submit an alternate offer based on use of equivalent domestic
or Recovery Act designated country construction material.
(2) If an alternate offer is submitted, the offeror shall submit a
separate Standard Form 1442 for the alternate offer and a separate cost
comparison table prepared in accordance with paragraphs (c) and (d) of
FAR clause 52.225-23 for the offer that is based on the use of any
foreign construction material for which the Government has not yet
determined an exception applies.
(3) If the Government determines that a particular exception
requested in accordance with paragraph (c) of FAR clause 52.225-23 does
not apply, the Government will evaluate only those offers based on use
of the equivalent domestic or Recovery Act designated country
construction material, and the offeror shall be required to furnish
such domestic or Recovery Act designated country construction material.
An offer based on use of the foreign construction material for which an
exception was requested--
(i) Will be rejected as nonresponsive if this acquisition is
conducted by sealed bidding; or
(ii) May be accepted if revised during negotiations.
(End of provision)
Alternate I (MAR 2009). As prescribed in 25.1102(e), substitute the
following paragraph (b) for paragraph (b) of the basic provision:
(b) Requests for determination of inapplicability. An offeror
requesting a determination regarding the inapplicability of section
1605 of the American Recovery and Reinvestment Act of 2009 (Pub. L.
111-5) (Recovery Act) or the Buy American Act shall submit the request
with its offer, including the information and applicable supporting
data required by paragraphs (c) and (d) of FAR clause 52.225-23.
Alternate II (MAR 2009). As prescribed in 25.1102(e), add the
definition of ``Bahrainian, Mexican, or Omani construction material''
to paragraph (a) and substitute the following paragraph (d) for
paragraph (d) of the basic provision:
(d) Alternate offers. (1) When an offer includes foreign
construction material, except foreign construction material from a
Recovery Act designated country other than Bahrain, Mexico, or Oman
that is not listed by the Government in this solicitation in paragraph
(b)(3) of FAR clause 52.225-23, the offeror also may submit an
alternate offer based on use of equivalent domestic or Recovery Act
designated country construction material other than Bahrainian,
Mexican, or Omani construction material.
(2) If an alternate offer is submitted, the offeror shall submit a
separate Standard Form 1442 for the alternate
[[Page 14633]]
offer and a separate cost comparison table prepared in accordance with
paragraphs (c) and (d) of FAR clause 52.225-23 for the offer that is
based on the use of any foreign construction material for which the
Government has not yet determined an exception applies.
(3) If the Government determines that a particular exception
requested in accordance with paragraph (c) of FAR clause 52.225-23 does
not apply, the Government will evaluate only those offers based on use
of the equivalent domestic or Recovery Act designated country
construction material other than Bahrainian, Mexican, or Omani
construction material. An offer based on use of the foreign
construction material for which an exception was requested--
(i) Will be rejected as nonresponsive if this acquisition is
conducted by sealed bidding; or
(ii) May be accepted if revised during negotiations.
[FR Doc. E9-7031 Filed 3-30-09; 8:45 am]
BILLING CODE 6820-EP-P