TITLE 48 - FEDERAL ACQUISITION REGULATIONS SYSTEM

CHAPTER 1 - FEDERAL ACQUISITION REGULATION

SUBCHAPTER H - CLAUSES AND FORMS

PART 52 - SOLICITATION PROVISIONS AND CONTRACT CLAUSES

52.225 - 12 - Notice of Buy American Act RequirementConstruction Materials Under Trade Agreements.

As prescribed in 25.1102(d)(1), insert the following provision: Notice of Buy American Act RequirementConstruction Materials Under Trade Agreements (JAN 2005) (a) Definitions. Construction material, designated country construction material, domestic construction material, and foreign construction material, as used in this provision, are defined in the clause of this solicitation entitled Buy American ActConstruction Materials Under Trade Agreements (Federal Acquisition Regulation (FAR) clause 52.22511).

  (b) Requests for determination of inapplicability. An offeror requesting a determination regarding the inapplicability of 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 52.22511 in the request. If an offeror has not requested a determination regarding the inapplicability of 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) The Government will evaluate an offer requesting exception to the requirements of the Buy American Act, based on claimed unreasonable cost of domestic construction materials, by adding to the offered price the appropriate percentage of the cost of such foreign construction material, as specified in paragraph (b)(4)(i) of FAR clause 52.22511.

  (2) If evaluation results in a tie between an offeror that requested the substitution of foreign construction material based on unreasonable cost and an offeror that did not request an exception, the Contracting Officer will award to the offeror that did not request an exception based on unreasonable cost.

  (d) Alternate offers. (1) When an offer includes foreign construction material, other than designated country construction material, that is not listed by the Government in this solicitation in paragraph (b)(3) of FAR clause 52.22511, the offeror also may submit an alternate offer based on use of equivalent domestic or 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 price comparison table prepared in accordance with paragraphs (c) and (d) of FAR clause 52.22511 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 52.22511 does not apply, the Government will evaluate only those offers based on use of the equivalent domestic or designated country construction material, and the offeror shall be required to furnish such domestic or 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 (MAY 2002). As prescribed in 25.1102(d)(2), 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 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 52.22511.

Alternate II (JAN 2006). As prescribed in 25.1102(d)(3), substitute the following paragraphs (a) and (d) for paragraphs (a) and (d) of the basic provision: (a) Definitions. Australian or Chilean construction material, Caribbean Basin country construction material, construction material, domestic construction material, foreign construction material, least developed country construction material, and WTO GPA country construction material, as used in this provision, are defined in the clause of this solicitation entitled Buy American ActConstruction Materials Under Trade Agreements (Federal Acquisition Regulation (FAR) clause 52.22511).

  (d)(1) When an offer includes foreign construction material, other than WTO GPA country, Australian or Chilean, least developed country, or Caribbean Basin country construction material, that is not listed by the Government in this solicitation in paragraph (b)(3) of FAR clause 52.22511, the offeror also may submit an alternate offer based on use of equivalent domestic, WTO GPA country, Australian or Chilean, least developed country, or Caribbean Basin 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 price comparison table prepared in accordance with paragraphs (c) and (d) of FAR clause 52.22511 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 52.22511 does not apply, the Government will evaluate only those offers based on use of the equivalent domestic, WTO GPA country, Australian or Chilean, least developed country, or Caribbean Basin country construction material, and the offeror shall be required to furnish such domestic, WTO GPA country, Australian or Chilean, least developed country, or Caribbean Basin 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.

[64 FR 72440, Dec. 27, 1999, as amended at 65 FR 36027, June 6, 2000; 67 FR 21537, Apr. 30, 2002; 69 FR 1057, Jan. 7, 2004; 69 FR 77878, Dec. 28, 2004; 71 FR 220, Jan. 3, 2006]