[Federal Register Volume 62, Number 51 (Monday, March 17, 1997)]
[Rules and Regulations]
[Pages 12698-12702]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-6315]
[[Page 12698]]
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DEPARTMENT OF DEFENSE
GENERAL SERVICES ADMINISTRATION
NATIONAL AERONAUTICS AND SPACE ADMINISTRATION
48 CFR Parts 25 and 52
[FAC 90-46; FAR Case 91-119; Item VI]
RIN 9000-AG81
Federal Acquisition Regulation; Buy American Act--Construction
(Grimberg Decision)
AGENCIES: Department of Defense (DOD), General Services Administration
(GSA), and National Aeronautics and Space Administration (NASA).
ACTION: Final rule.
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SUMMARY: The Civilian Agency Acquisition Council and the Defense
Acquisition Regulations Council have agreed on a final rule amending
the Federal Acquisition Regulation (FAR) to add guidance on pre-award
and post-award exceptions to the Buy American Act for construction, and
also to provide guidance regarding instances of noncompliance with the
Buy American Act. This regulatory action was not subject to Office of
Management and Budget review under Executive Order 12866, dated
September 30, 1993. This is not a major rule under 5 U.S.C. 804.
DATES: Effective May 16, 1997.
FOR FURTHER INFORMATION CONTACT: Mr. Paul Linfield at (202) 501-1757 in
reference to this FAR case. For general information, contact the FAR
Secretariat, Room 4037, GS Building, Washington, DC 20405 (202) 501-
4755. Please cite FAC 90-46, FAR case 91-119.
SUPPLEMENTARY INFORMATION:
A. Background
A proposed rule was published in the Federal Register at 60 FR
67028, December 27, 1995. The revisions in the final rule are based on
the analysis of public comments and further clarification of the rule.
The final rule--
--Permits the contracting officer to specify in the solicitation if
there is insufficient time to consider requests for determinations
under the Buy American Act in advance of receipt of offers;
--Uses more precise terminology for determinations regarding the
inapplicability of the Buy American Act;
--Adds guidance regarding exceptions to the Buy American Act that are
based on the Trade Agreements Act and North American Free Trade
Agreement; and
--Clarifies when supporting information and price comparisons are
needed.
B. Regulatory Flexibility Act
The Department of Defense, the General Services Administration, and
the National Aeronautics and Space Administration certify that this
final rule will not 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., because the rule does not
change the impact of the Buy American Act or alter the exceptions to
the Act, but only clarifies the procedures for implementation of the
Act.
C. Paperwork Reduction Act
The Paperwork Reduction Act is deemed to apply because the clauses
at FAR 52.225-5 and 52.225-15 require offerors/contractors requesting a
determination regarding the inapplicability of the Buy American Act to
provide the Government with certain information relating to foreign
construction material the offeror/contractor proposes to use on the
contract. A request for clearance of the information collection
requirement previously was submitted to the Office of Management and
Budget (OMB) under 44 U.S.C. 3501, et seq., and approved through
February 28, 1999, under OMB Control Number 9000-0141.
List of Subjects in 48 CFR Parts 25 and 52
Government procurement.
Dated: March 7, 1997.
Edward C. Loeb,
Director, Federal Acquisition Policy Division.
Therefore, 48 CFR Parts 25 and 52 are amended as set forth below:
1. The authority citation for 48 CFR Parts 25 and 52 continues to
read as follows:
Authority: 40 U.S.C. 486(c); 10 U.S.C. chapter 137; and 42
U.S.C. 2473(c).
PART 25--FOREIGN ACQUISITION
25.108 [Amended]
2. Section 25.108 is amended in paragraph (b) by removing
``25.202(a)(3)'' and inserting ``25.202(a)(2)''.
25.201 [Amended]
3. Section 25.201 is amended in the definition of ``Domestic
construction material'' by removing ``25.202(a)(3)'' and inserting
``25.202(a)(2)''.
4. Subpart 25.2 is amended by revising sections 25.202 through
25.205 and adding sections 25.206 and 25.207 to read as follows:
25.202 Policy.
(a) The Buy American Act requires that only domestic construction
materials be used in construction in the United States, except when--
(1) The cost would be unreasonable, i.e., the cost of domestic
construction material exceeds the cost of foreign construction material
by more than 6 percent, unless the agency head determines a higher
percentage to be appropriate (see Executive Order 10582);
(2) The head of the contracting activity or designee determines the
construction material is not mined, produced, or manufactured in the
United States in sufficient and reasonably available commercial
quantities of a satisfactory quality (see 25.108);
(3) The agency head determines that application of the restrictions
of the Buy American Act to a particular construction material would be
impracticable; or
(4) The agency head determines that application of the restrictions
of the Buy American Act to a particular construction material would be
inconsistent with the public interest. Under this authority, agencies
may have agreements with foreign governments that provide blanket
exceptions to the Buy American Act (e.g., Trade Agreements Act and
North American Free Trade Agreement (NAFTA)).
(b) Unless the contracting officer determines that insufficient
time is available, offerors should request determinations regarding the
inapplicability of the Buy American Act in time to allow determination
before submission of offers.
(c) When it is determined for any of the reasons stated in this
section that certain foreign construction materials may be used, the
excepted materials shall be listed in the contract. Findings justifying
the exception shall be available for public inspection.
(d) For construction contracts with an acquisition value of
$6,500,000 or more, but less than $7,311,000, see 25.402(a)(3). If the
acquisition value is $7,311,000 or more, see 25.402(a)(1).
25.203 Determinations requested before submission of offers.
(a) Any request for a determination regarding the inapplicability
of the Buy American Act made before receipt of offers shall be
evaluated based on the information requested in the applicable clause
at 52.225-5, Buy American Act--Construction Materials, paragraphs (c)
and (d), or 52.225-15, Buy American Act--Construction Materials under
Trade Agreements Act and North
[[Page 12699]]
American Free Trade Agreement, paragraphs (c) and (d), and may be
supplemented by other information readily available to the contracting
officer.
(b) If the Government determines before receipt of offers that an
exception to the Buy American Act applies (other than a general
exception based on the Trade Agreements Act or NAFTA), the excepted
material shall be identified by the Government in the clause at 52.225-
5(b)(2) or 52.225-15(b)(3).
25.204 Evaluating offers of foreign construction material.
(a) Offerors proposing to use foreign construction material other
than that listed by the Government in the applicable clause at 52.225-
5(b)(2) or 52.225-15(b)(3) or excepted under the Trade Agreements Act
or NAFTA (52.225-15(b)(2)) must provide the information required by
paragraphs (c) and (d) of the respective clauses.
(b) Unless agency regulations specify a higher percentage, the
Government will add to the offered price 6 percent of the cost of any
foreign construction material proposed for exception from the
requirements of the Buy American Act based on the unreasonable cost of
domestic construction materials. If the evaluation of offers results in
a tie between an offer including foreign construction material excepted
on the basis of unreasonable cost, as evaluated, and an offer including
solely domestic construction material or other foreign construction
material that is excepted by the Government in the solicitation under
the clause at 52.225-5(b) (2) or 52.225-15(b)(2) or (3) or subsequently
excepted on a basis other than unreasonable cost, award shall be made
to the offeror that submitted the latter offer.
(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, upon evaluation of an offer, the Government determines that
an exception to the Buy American Act applies, and the Government
accepts that offer, the excepted material shall be listed in the
contract at 52.225-5(b)(2) or 52.225-15(b)(3).
25.205 Postaward determinations.
(a) If a contractor requests a determination regarding the
inapplicability of the Buy American Act after contract award, the
contractor shall explain why the determination could not have been
requested before contract award or why the need for such determination
otherwise was not reasonably foreseeable. If the contractor does not
submit a satisfactory explanation, the Government need not make a
determination regarding the inapplicability of the Buy American Act.
(b) Evaluation of any request for a determination regarding the
inapplicability of the Buy American Act made after contract award shall
be based on information similar to that required before award by the
applicable clause at 52.225-5 (c) and (d) or 52.225-15 (c) and (d) and/
or other information readily available to the contracting officer.
(c) If a determination is made after contract award that an
exception to the Buy American Act applies, the contract shall be
modified to allow use of foreign construction material, and adequate
consideration shall be negotiated. However, when the basis for the
exception is the unreasonable price of a domestic construction
material, adequate consideration shall not be less than the
differential established in 25.202(a)(1) or agency procedures.
25.206 Noncompliance.
(a) The contracting officer is responsible for conducting Buy
American Act investigations when available information indicates such
action is warranted.
(b) Unless fraud is suspected, the contracting officer shall notify
the contractor of the apparent unauthorized use of foreign construction
material and request a reply, to include proposed corrective action.
(c) If an investigation reveals that a contractor or subcontractor
has used foreign construction material without authorization, the
contracting officer shall take appropriate action, including one or
more of the following:
(1) Process a determination with regard to inapplicability of the
Buy American Act in accordance with 25.205.
(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. Such a
determination to retain foreign construction material does not
constitute a determination that an exception to the Buy American Act
applies, and this should be so stated in the determination. Further,
such a determination to retain foreign construction material does not
affect the Government's right to suspend and/or debar a contractor,
subcontractor, or supplier for violation of 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
for suspension and/or debarment, including findings and supporting
evidence in accordance with subpart 9.4, Debarment, Suspension, and
Ineligibility. If the noncompliance appears to be fraudulent, consider
referring the matter to other appropriate agency officials, such as the
officer responsible for criminal investigation and prosecution.
25.207 Solicitation provisions and contract clauses.
(a) The contracting officer shall insert the clause at 52.225-5,
Buy American Act--Construction Materials, in solicitations and
contracts for construction inside the United States, except when the
clause at 52.225-15, Buy American Act--Construction Materials under
Trade Agreements Act and North American Free Trade Agreement, is
prescribed.
(b)(1) The contracting officer shall insert the provision at
52.225-12, Notice of Buy American Act Requirement--Construction
Materials, in solicitations for construction that contain the clause at
52.225-5, Buy American Act--Construction Materials.
(2) If the contracting officer determines that insufficient time is
available to process a determination regarding the inapplicability of
the Buy American Act prior to receipt of offers, the contracting
officer shall use the provision with its Alternate I.
(c)(1) The contracting officer shall insert the provision at
52.225-13, Notice of Buy American Act Requirement--Construction
Materials under Trade Agreements Act and North American Free Trade
Agreement, in solicitations for construction that contain the clause at
52.225-15, Buy American Act--Construction Materials under Trade
Agreements Act and North American Free Trade Agreement.
(2) If the contracting officer determines that insufficient time is
available to process a determination regarding the inapplicability of
the Buy American Act prior to receipt of offers,
[[Page 12700]]
the contracting officer shall use the provision with its Alternate I.
(d)(1) The contracting officer shall insert the clause at 52.225-
15, Buy American Act--Construction Materials under Trade Agreements Act
and North American Free Trade Agreement, in solicitations and contracts
for construction inside the United States with an estimated acquisition
value of $7,311,000 or more.
(2) For solicitations and contracts for construction inside the
United States with an estimated acquisition value of $6,500,000 or
more, but less than $7,311,000, the contracting officer shall use the
clause with its Alternate I.
PART 52--SOLICITATION PROVISIONS AND CONTRACT CLAUSES
5. Section 52.225-5 is amended by revising the introductory
paragraph; revising the clause date; revising paragraph (a)
introductory text; by removing the phrase ``as used in this clause''
from the definitions of ``Components'', ''Construction material'' and
``Domestic construction material''; by removing from the definition of
Domestic construction material'' ``25.202(a)(3)'' and inserting
``25.202(a)(2)''; by revising paragraph (b) (the undesignated paragraph
following paragraph (b) is removed); and adding paragraphs (c) and (d)
to read as follows:
52.225-5 Buy American Act--Construction Materials.
As prescribed in 25.207(a), insert the following clause:
Buy American Act--Construction Materials (May 1997)
(a) Definitions. As used in this clause--
* * * * *
(b)(1) The Buy American Act (41 U.S.C. 10a-10d) requires that
only domestic construction material be used in performing this
contract, except as provided in paragraphs (b)(2) and (b)(3) of this
clause.
(2) This requirement does not apply to the excepted construction
material or components listed by the Government as follows:
----------------------------------------------------------------------
(List applicable accepted materials or indicate ``none'')
(3) Other foreign construction material may be added to the list
in paragraph (b)(2) of this clause if the Government determines
that--
(i) The cost would be unreasonable (the cost of a particular
domestic construction material shall be determined to be
unreasonable when the cost of such material exceeds the cost of
foreign material by more than 6 percent, unless the agency head
determines a higher percentage to be appropriate);
(ii) The application of the restriction of the Buy American Act
to a particular construction material would be impracticable or
inconsistent with the public interest; or
(iii) The construction material is not mined, produced, or
manufactured in the United States in sufficient and reasonably
available commercial quantities of a satisfactory quality.
(4) The Contractor agrees that only domestic construction
material will be used by the Contractor, subcontractors, material
men, and suppliers in the performance of this contract, except for
foreign construction materials, if any, listed in paragraph (b)(2)
of this clause.
(c) Request for determination. (1) Contractors requesting to use
foreign construction material under paragraph (b)(3) of this clause
shall provide adequate information for Government evaluation of the
request for a determination regarding the inapplicability of the Buy
American Act. Each submission shall include a description of the
foreign and domestic construction materials, including unit of
measure, quantity, price, time of delivery or availability, location
of the construction project, name and address of the proposed
contractor, and a detailed justification of the reason for use of
foreign materials cited in accordance with paragraph (b)(3) of this
clause. A submission based on unreasonable cost shall include a
reasonable survey of the market and a completed price comparison
table in the format in paragraph (d) of this clause. The price of
construction material shall include all delivery costs to the
construction site and any applicable duty (whether or not a duty-
free certificate may be issued).
(2) If the Government determines after contract award that an
exception to the Buy American Act applies, the contract shall be
modified to allow use of the foreign construction material, and
adequate consideration shall be negotiated. However, when the basis
for the exception is the unreasonable price of a domestic
construction material, adequate consideration shall not be less than
the differential established in paragraph (b)(3)(i) of this clause.
(3) If the Government does not determine that an exception to
the Buy American Act applies, the use of that particular foreign
construction material will be a failure to comply with the Act.
(d) For evaluation of requests under paragraph (c) of this
clause based on unreasonable cost, the following information and any
applicable supporting data based on the survey of suppliers shall be
included in the request:
Foreign and Domestic Construction Materials Price Comparison
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Unit of Price
Construction material description measure Quantity (dollars) \1\
----------------------------------------------------------------------------------------------------------------
Item 1:
Foreign construction material............................... .............. .............. ..............
Domestic construction material.............................. .............. .............. ..............
Item 2:
Foreign construction material............................... .............. .............. ..............
Domestic constructionmaterial............................... .............. .............. ..............
List name, address, telephone number, and contact for suppliers surveyed. Attach copy of response; if oral,
attach summary.
Include other applicable supporting information.
----------------------------------------------------------------------------------------------------------------
\1\ Include all delivery costs to the construction site and any applicable duty (whether or not a duty-free
entry certificate is issued).
(End of clause)
6. Sections 52.225-12 and 52.225-13 are added to read as follows:
52.225-12 Notice of Buy American Act Requirement-Construction
Materials.
As prescribed in 25.207(b), insert the following provision:
Notice of Buy American Act Requirement-Construction Materials (May
1997)
(a) Offerors are required to comply with the requirements of
Federal Acquisition Regulation (FAR) clause 52.225-5, Buy American
Act Construction Materials, of this solicitation. The terms
``construction material'' and ``domestic construction material,'' as
used in this provision, have the meanings set forth in FAR clause
52.225-5.
(b) Offerors should request a determination regarding the
inapplicability of the Buy American Act in time to allow
determination before submission of offers. For evaluation of a
request for a determination regarding the inapplicability of the
requirements of the Buy American Act prior to the time set for
receipt of offers, the information and applicable supporting data
required by paragraphs (c) and (d) of FAR clause 52.225-5 shall be
included in the request. If an offeror has not requested a
detemination regarding the inapplicability of the Buy American Act
prior to submission of its offer, or has not received
[[Page 12701]]
a response to a request made prior to submission of its offer, the
information and supporting data shall be included in the offer.
(c) Evaluation of offers. (1) For evaluation of offers, (unless
agency regulations specify a higher percentage) the Government will
add to the offered price 6 percent of the cost of any foreign
construction material proposed for exception from the requirements
of the Buy American Act based on claimed unreasonable cost of
domestic construction materials in accordance with paragraph
(b)(3)(i) of FAR clause 52.225-5.
(2) If the evaluation of offers results in a tie between an
offer including such foreign construction material excepted on the
basis of unreasonable cost, as evaluated, and an offer including
solely domestic construction material or other foreign construction
material listed in the solicitation at paragraph (b)(2) of FAR
clause 52.225-5, or subsequently excepted in accordance with
paragraphs (b)(3) (ii) or (iii) of FAR clause 52.225-5, award shall
be made to the offeror that submitted the latter offer.
(d) Alternate offers. (1) When an offer includes foreign
construction material not listed by the Government in the
solicitation at paragraph (b)(2) of FAR clause 52.225-5, offerors
also may submit alternate offers based on use of equivalent domestic
construction material.
(2) If alternate offers are submitted, a separate Standard Form
1442 shall be submitted for each alternate offer, and a separate
price comparison table, prepared in accordance with paragraphs (c)
and (d) of FAR clause 52.225-5, shall be submitted for each offer
that is based on the use of any foreign construction material for
which the Government has not yet determined an exception to apply.
(3) If the Government determines that a particular exception
requested under paragraph (c) of FAR clause 52.225-5 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.
(i) In sealed bid procurements, any offer based on use of that
particular foreign construction material shall be rejected as
nonresponsive.
(ii) In negotiated procurements, any offer based on use of that
particular foreign construction material may not be accepted unless
revised during negotiations.
(End of provision)
Alternate I. (MAY 1997) As prescribed in 25.207(b)(2),
substitute the following paragraph (b) for paragraph (b) of the
basic provision:
(b) An offeror requesting a determination regarding the
inapplicability of the Buy American Act shall submit such request
with its offer, including the information and applicable supporting
data required by paragraphs (c) and (d) of FAR clause 52.225-5.
52.225-13 Notice of Buy American Act Requirement--Construction
Materials under Trade Agreements Act and North American Free Trade
Agreement.
As prescribed in 25.207(c)(1), insert the following provision:
Notice of Buy American Act Requirement--Construction Materials under
Trade Agreements Act and North American Free Trade Agreement (May 1997)
(a) Offerors are required to comply with the requirements of
Federal Acquisition Regulation (FAR) clause 52.225-15, Buy American
Act--Construction Materials Under Trade Agreements Act and North
American Free Trade Agreement, of this solicitation. The terms
defined in FAR clause 52.225-15 have the same meaning in this
provision.
(b) Offerors should request a determination regarding the
inapplicability of the Buy American Act in time to allow
determination before submission of offers. For evaluation of a
request for a determination regarding the inapplicability of the
requirements of the Buy American Act prior to the time set for
receipt of offers, the information and applicable supporting data
required by paragraphs (c) and (d) of FAR clause 52.225-15 shall be
included in the request. If an offeror has not requested a
determination regarding the inapplicability of the Buy American Act
prior to submission of its offer, or has not received a response to
a request made prior to submission of its offer, the information and
supporting data shall be included in the offer.
(c) Evaluation of offers. (1) For evaluation of offers, (unless
agency regulations specify a higher percentage) the Government will
add to the offered price 6 percent of the cost of any foreign
construction material proposed for exception from the requirements
of the Buy American Act based on claimed unreasonable cost of
domestic construction materials in accordance with paragraph
(b)(4)(i) of FAR clause 52.225-15.
(2) If the evaluation of offers results in a tie between an
offer including such foreign construction material excepted on the
basis of unreasonable cost, as evaluated, and an offer including
solely domestic construction material or other foreign construction
material, listed in the solicitation at paragraph (b)(3) of FAR
clause 52.225-15, or subsequently excepted in accordance with
paragraphs (b)(4)(ii) or (iii) of FAR clause 52.225-15, award shall
be made to the offeror that submitted the latter offer.
(d) Alternate offers. (1) When an offer includes foreign
construction material not listed by the Government in the
solicitation at paragraph (b)(3) of FAR clause 52.225-15, offerors
also may submit alternate offers based on use of equivalent domestic
construction material.
(2) If alternate offers are submitted, a separate Standard Form
1442 shall be submitted for each alternate offer, and a separate
price comparison table, prepared in accordance with paragraphs (c)
and (d) of FAR clause 52.225-15, shall be submitted for each offer
that is based on the use of any foreign construction material for
which the Government has not yet determined an exception to apply.
(3) If the Government determines that a particular exception
requested under paragraph (c) of FAR clause 52.225-15 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.
(i) In sealed bid procurements, any offer based on use of that
particular foreign construction material shall be rejected as
nonresponsive.
(ii) in negotiated procurements, any offer based on use of that
particular foreign construction material may not be accepted unless
revised during negotiations.
(End of provision)
Alternate I (MAY 1997). As prescribed in 25.207(c)(2),
substitute the following paragraph (b) for paragraph (b) of the
basic provision:
(b) An offeror requesting a determination regarding the
inapplicability of the Buy American Act shall submit such request
with its offer, including the information and applicable supporting
data required by paragraphs (c) and (d) of FAR clause 52.225-15.
7. Section 52.225-15 is amended by revising the introductory
paragraph, and the clause date; in the definition of ``Domestic
construction material'' by removing ``25.202(a)(3)'' and inserting
``25.202(a)(2)''; by revising paragraphs (b) and (c); and by adding
paragraph (d) to read as follows:
52.225-15 Buy American Act--Construction Materials under Trade
Agreements Act and North American Free Trade Agreement.
As prescribed in 25.207(d), insert the following clause:
Buy American Act--Construction Materials Under Trade Agreements Act and
North American Free Trade Agreement (May 1997)
* * * * *
(b)(1) The Buy American Act (41 U.S.C. 10a--10d) requires that
only domestic construction material be used in performing this
contract, except as provided in paragraphs (b)(2), (b)(3), and
(b)(4) of this clause.
(2) The Trade Agreements Act and the North American Free Trade
Agreement (NAFTA) provide that designated country and NAFTA country
construction materials are exempted from application of the Buy
American Act.
(3) The requirement in paragraph (b)(1) of this clause does not
apply to the excepted construction material or components listed by
the Government as follows:
----------------------------------------------------------------------
(List applicable accepted materials or indicate ``none'')
(4) Other foreign construction material may be added to the list
in paragraph (b)(3) of this clause if the Government determines
that--
(i) The cost would be unreasonable (the cost of a particular
domestic construction material shall be determined to be
unreasonable when the cost of such material
[[Page 12702]]
exceeds the cost of foreign material by more than 6 percent, unless
the agency head determines a higher percentage to be appropriate);
(ii) The application of the restriction of the Buy American Act
to a particular construction material would be impracticable or
inconsistent with the public interest; or (iii) The construction
material is not mined, produced, or manufactured in the United
States in sufficient and reasonably available commercial quantities
of a satisfactory quality.
(5) The Contractor agrees that only domestic construction
materials, NAFTA country construction materials, or designated
country construction materials will be used by the Contractor,
subcontractors, material men, and suppliers in the performance of
this contract, except for foreign construction materials, if any,
listed in paragraph (b)(3) of this clause.
(c) Request for determination. (1) Contractors requesting to use
foreign construction material under paragraph (b)(4) of this clause
shall provide adequate information for Government evaluation of the
request for a determination regarding the inapplicability of the Buy
American Act. Each submission shall include a description of the
foreign and domestic construction materials, including unit of
measure, quantity, price, time of delivery or availability, location
of the construction project, name and address of the proposed
contractor, and a detailed justification of the reason for use of
foreign materials cited in accordance with paragraph (b)(4) of this
clause. A submission based on unreasonable cost shall include a
reasonable survey of the market and a completed price comparison
table in the format in paragraph (d) of this clause. The price of
construction material shall include all delivery costs to the
construction site and any applicable duty (whether or not a duty-
free certificate may be issued).
(2) If the Government determines after contract award that an
exception to the Buy American Act applies, the contract shall be
modified to allow use of the foreign construction material, and
adequate consideration shall be negotiated. However, when the basis
for the exception is the unreasonable price of a domestic
construction material, adequate consideration shall not be less than
the differential established in paragraph (b)(4)(i) of this clause.
(3) If the Government does not determine that an exception to
the Buy American Act applies, the use of that particular foreign
construction material will be a failure to comply with the Act.
(d) For evaluation of requests under paragraph (c) of this
clause based on unreasonable cost, the following information and any
applicable supporting data based on the survey of suppliers shall be
included in the request:
Foreign and Domestic Construction Materials Price Comparison
----------------------------------------------------------------------------------------------------------------
Unit of Price
Construction material description measure Quantity (dollars) \1\
----------------------------------------------------------------------------------------------------------------
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.
----------------------------------------------------------------------------------------------------------------
\1\ Include all delivery costs to the construction site and any applicable duty (whether or not a duty-free
entry certificate is issued).
(End of clause)
Alternate I (MAY 1997). As prescribed in 25.207(d)(2),
substitute the following paragraphs (b)(2) and (b)(5) for paragraphs
(b)(2) and (b)(5) of the basic clause:
(b)(2) The North American Free Trade Agreement (NAFTA) provides
that NAFTA construction materials are exempted from application of
the Buy American Act.
(b)(5) The Contractor agrees that only domestic construction
materials or NAFTA country construction materials will be used by
the Contractor, subcontractors, material men, and suppliers in the
performance of this contract, except for other foreign construction
materials, if any, listed in paragraph (b)(3) of this clause.
52.225-22 [Amended]
8. Section 52.225-22 is amended by revising the clause date to read
``(MAY 1997)''; and in the definition of ``Domestic construction
material'' by removing ``25.202(a)(3)'' and inserting ``25.202(a)(2)''.
[FR Doc. 97-6315 Filed 3-14-97; 8:45 am]
BILLING CODE 6820-EP-P
