BUY AMERICAN ACT
52.225-1 Buy AmericanSupplies
As prescribed in 25.1101(a)(1), insert the following clause:
BUY AMERICANSUPPLIES (MAY 2014)
(a) Definitions. As used in this clause
Commercially available off-the-shelf (COTS) item
(1) Means any item of supply (including construction material) that is
(i) A commercial item (as defined in paragraph (1) of the definition at FAR 2.101);
(ii) Sold in substantial quantities in the commercial marketplace; and
(iii) Offered to the Government, under a contract or subcontract at any tier, without modification, in
the same form in which it is sold in the commercial marketplace; and
(2) Does not include bulk cargo, as defined in 46 U.S.C. 40102(4), such as agricultural products and
petroleum products.
Component means an article, material, or supply incorporated directly into an end product.
Cost of components means
(3) For components purchased by the Contractor, the acquisition cost, including transportation costs
to the place of incorporation into the end product (whether or not such costs are paid to a domestic firm),
and any applicable duty (whether or not a duty-free entry certificate is issued); or
(4) For components manufactured by the Contractor, all costs associated with the manufacture of
the component, including transportation costs as described in paragraph (1) of this definition, plus
allocable overhead costs, but excluding profit. Cost of components does not include any costs associated
with the manufacture of the end product.
Domestic end product means
(1) An unmanufactured end product mined or produced in the United States;
(2) An end product manufactured in the United States, if
(i) The cost of its components mined, produced, or manufactured in the United States exceeds 50
percent of the cost of all its components. Components of foreign origin of the same class or kind as those
that the agency determines are not mined, produced, or manufactured in sufficient and reasonably
available commercial quantities of a satisfactory quality are treated as domestic. Scrap generated,
collected, and prepared for processing in the United States is considered domestic; or
(ii) The end product is a COTS item.
End product means those articles, materials, and supplies to be acquired under the contract for public
use.
Foreign end product means an end product other than a domestic end product.
United States means the 50 States, the District of Columbia, and outlying areas.
(b) 41 U.S.C. chapter 83, Buy American, provides a preference for domestic end products for supplies
acquired for use in the United States. In accordance with 41 U.S.C. 1907, the component test of the Buy
American statute is waived for an end product that is a COTS item (See 12.505(a)(1)).
(c) Offerors may obtain from the Contracting Officer a list of foreign articles that the Contracting Officer
will treat as domestic for this contract.
(d) The Contractor shall deliver only domestic end products except to the extent that it specified
delivery of foreign end products in the provision of the solicitation entitled Buy American Certificate.
(End of clause)
52.225-2 Buy American Certificate.
As prescribed in 25.1101(a)(2), insert the following provision:
BUY AMERICAN CERTIFICATE (MAY 2014)
(a) The offeror certifies that each end product, except those listed in paragraph (b) of this provision, is a
domestic end product and that for other than COTS items, the offeror has considered components of
unknown origin to have been mined, produced, or manufactured outside the United States. The offeror
shall list as foreign end products those end products manufactured in the United States that do not qualify
as domestic end products, i.e., an end product that is not a COTS item and does not meet the component
test in paragraph (2) of the definition of domestic end product. The terms commercially available offthe-shelf (COTS) item, component, domestic end product, end product, foreign end product, and
United States are defined in the clause of this solicitation entitled Buy AmericanSupplies.
(b) Foreign End Products:
LINE ITEM NO.
______________
______________
______________
COUNTRY OF ORIGIN
_________________
_________________
_________________
[List as necessary]
(c) The Government will evaluate offers in accordance with the policies and procedures of Part 25 of
the Federal Acquisition Regulation.
(End of provision)
52.225-9 Buy AmericanConstruction Materials.
As prescribed in 25.1102(a), insert the following clause:
BUY AMERICANCONSTRUCTION MATERIALS (MAY 2014)
(a) Definitions. As used in this clause
Commercially available off-the-shelf (COTS) item
(1) Means any item of supply (including construction material) that is
(i) A commercial item (as defined in paragraph (1) of the definition at FAR 2.101);
(ii) Sold in substantial quantities in the commercial marketplace; and
(iii) Offered to the Government, under a contract or subcontract at any tier, without modification, in
the same form in which it is sold in the commercial marketplace; and
(2) Does not include bulk cargo, as defined in 46 U.S.C. 40102(4), such as agricultural products and
petroleum products.
Component means an article, material, or supply incorporated directly into a construction material.
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.
Cost of components means
(3) For components purchased by the Contractor, the acquisition cost, including transportation costs
to the place of incorporation into the construction material (whether or not such costs are paid to a
domestic firm), and any applicable duty (whether or not a duty-free entry certificate is issued); or
(4) For components manufactured by the Contractor, all costs associated with the manufacture of
the component, including transportation costs as described in paragraph (1) of this definition, plus
allocable overhead costs, but excluding profit. Cost of components does not include any costs associated
with the manufacture of the construction material.
Domestic construction material means
(1) An unmanufactured construction material mined or produced in the United States;
(2) A construction material manufactured in the United States, if
(i) The cost of its components mined, produced, or manufactured in the United States exceeds 50
percent of the cost of all its components. Components of foreign origin of the same class or kind for which
nonavailability determinations have been made are treated as domestic; or
(ii) The construction material is a COTS item.
Foreign construction material means a construction material other than a domestic construction
material.
United States means the 50 States, the District of Columbia, and outlying areas.
(b) Domestic preference.
(1) This clause implements 41 U.S.C. chapter 83, Buy American, by providing a preference for
domestic construction material. In accordance with 41 U.S.C. 1907, the component test of the Buy
American statute is waived for construction material that is a COTS item. (See FAR 12.505(a)(2)). The
Contractor shall use only domestic construction material in performing this contract, except as provided in
paragraphs (b)(2) and (b)(3) of this clause.
(2) This requirement does not apply to information technology that is a commercial item or to the
construction materials or components listed by the Government as follows:
________________________________________________
[Contracting Officer to list applicable excepted materials or indicate none]
(3) The Contracting Officer may add other foreign construction material to the list in paragraph (b)(2)
of this clause if the Government determines that
(i) The cost of domestic construction material would be unreasonable. The cost of a particular
domestic construction material subject to the requirements of the Buy American statute is unreasonable
when the cost of such material exceeds the cost of foreign material by more than 6 percent;
(ii) The application of the restriction of the Buy American statute 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.
(c) Request for determination of inapplicability of the Buy American statute.
(1)(i) Any Contractor request to use foreign construction material in accordance with paragraph (b)
(3) 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) Price;
(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)(3) of this clause.
(ii) A request 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.
(iii) 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).
(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 the Buy American statute
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 price of a domestic construction material, adequate consideration is
not less than the differential established in paragraph (b)(3)(i) of this clause.
(3) Unless the Government determines that an exception to the Buy American statute applies, use of
foreign construction material is noncompliant with the Buy American statute.
(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 PRICE COMPARISON
Construction Material Description
Unit of Measure
Quantity
Price (Dollars)*
Foreign construction material
_______
_______
_______
Domestic construction material
_______
_______
_______
Item 2:
_______
_______
_______
Foreign construction material
_______
_______
_______
Item 1:
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 and any applicable duty (whether or not a duty-free entry certificate is issued).]
52.225-21 Required Use of American Iron, Steel, and Manufactured GoodsBuy American Statute
Construction Materials.
As prescribed in 25.1102(e), insert the following clause:
REQUIRED USE OF AMERICAN IRON, STEEL, AND MANUFACTURED GOODSBUY AMERICAN STATUTECONSTRUCTION MATERIALS (MAY
2014)
(a) Definitions. As used in this clause
Component means an article, material, or supply incorporated directly into a construction material.
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.
Domestic construction material means the following
(1) An unmanufactured construction material mined or produced in the United States. (The Buy
American statute applies.)
(2) A manufactured construction material that is manufactured in the United States and, if the
construction material consists wholly or predominantly of iron or steel, the iron or steel was produced in
the United States. (Section 1605 of the Recovery Act applies.)
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 manufactured construction material in the project
is manufactured in the United States and, if the construction material consists wholly or predominantly of
iron or steel, the iron or steel was produced in the United States (produced in the United States means
that all manufacturing processes of the iron or steel must take place in the United States, except
metallurgical processes involving refinement of steel additives); and
(ii) 41 U.S.C chapter 83, Buy American, by providing a preference for unmanufactured
construction material mined or produced in the United States over unmanufactured construction material
mined or produced in a foreign country.
(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:
__________________________________________
[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 manufactured construction material, when compared to the cost of
comparable foreign manufactured 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 domestic unmanufactured construction material is unreasonable when the cost
of such material exceeds the cost of comparable foreign unmanufactured construction 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;
(iii) The application of the restriction of section 1605 of the Recovery Act to a particular
manufactured construction material would be inconsistent with the public interest or the application of the
Buy American statute to a particular unmanufactured construction material would be impracticable or
inconsistent with the public interest.
(c) Request for determination of inapplicability of Section 1605 of the Recovery Act or the Buy
American statute.
(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 statute 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 statute applies, use of foreign construction material is noncompliant with section 1605 of
the American Recovery and Reinvestment Act or the Buy American statute.
(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)
25.1101 Acquisition of supplies.
The following provisions and clauses apply to the acquisition of supplies and the acquisition of services
involving the furnishing of supplies.
(a)(1) Insert the clause at 52.225-1, Buy AmericanSupplies, in solicitations and contracts with a value
exceeding the micro-purchase threshold but not exceeding $25,000; and in solicitations and contracts
with a value exceeding $25,000, if none of the clauses prescribed in paragraphs (b) and (c) of this section
apply, except if
(i) The solicitation is restricted to domestic end products in accordance with subpart 6.3;
(ii) The acquisition is for supplies for use within the United States and an exception to the Buy
American statute applies (e.g., nonavailability, public interest, or information technology that is a
commercial item); or
(iii) The acquisition is for supplies for use outside the United States.
(2) Insert the provision at 52.225-2, Buy American Certificate, in solicitations containing the clause at
52.225-1.
(b)
(1)
(i) Insert the clause at 52.225-3, Buy AmericanFree Trade AgreementsIsraeli Trade Act, in
solicitations and contracts if
(A) The acquisition is for supplies, or for services involving the furnishing of supplies, for use
within the United States, and the acquisition value is $25,000 or more, but is less than $204,000;
(B) The acquisition is not for information technology that is a commercial item, using fiscal year
2004 or subsequent fiscal year funds; and
(C) No exception in 25.401 applies. For acquisitions of agencies not subject to the Israeli Trade
Act (see 25.406), see agency regulations.
(ii) If the acquisition value is $25,000 or more but is less than $50,000, use the clause with its
Alternate I.
(iii) If the acquisition value is $50,000 or more but is less than $79,507, use the clause with its
Alternate II.
(iv) If the acquisition value is $79,507 or more but is less than $100,000, use the clause with its
Alternate III.
(2)(i) Insert the provision at 52.225-4, Buy AmericanFree Trade AgreementsIsraeli Trade Act
Certificate, in solicitations containing the clause at 52.225-3.
(ii) If the acquisition value is $25,000 or more but is less than $50,000, use the provision with its
Alternate I.
(iii) If the acquisition value is $50,000 or more but is less than $79,507, use the provision with its
Alternate II.
(iv) If the acquisition value is $79,507 or more, but is less than $100,000, use the provision with
its Alternate III.
(c)(1) Insert the clause at 52.225-5, Trade Agreements, in solicitations and contracts valued at
$204,000 or more, if the acquisition is covered by the WTO GPA (see subpart 25.4) and the agency has
determined that the restrictions of the Buy American statute are not applicable to U.S.-made end
products. If the agency has not made such a determination, the contracting officer must follow agency
procedures.
(2) Insert the provision at 52.225-6, Trade Agreements Certificate, in solicitations containing the
clause at 52.225-5.
(d) Insert the provision at 52.225-7, Waiver of Buy American statute for Civil Aircraft and Related
Articles, in solicitations for civil aircraft and related articles (see 25.407), if the acquisition value is less
than $204,000.
(e) Insert the clause at 52.225-8, Duty-Free Entry, in solicitations and contracts for supplies that may
be imported into the United States and for which duty-free entry may be obtained in accordance with
25.903(a), if the value of the acquisition
(1) Exceeds the simplified acquisition threshold; or
(2) Does not exceed the simplified acquisition threshold, but the savings from waiving the duty is
anticipated to be more than the administrative cost of waiving the duty. When used for acquisitions that do
not exceed the simplified acquisition threshold, the contracting officer may modify paragraphs (c)(1) and
(j)(2) of the clause to reduce the dollar figure.
(f) Insert the provision at 52.225-18, Place of Manufacture, in solicitations that are predominantly for
the acquisition of manufactured end products, as defined in the provision at 52.225-18 (i.e., the estimated
value of the manufactured end products exceeds the estimated value of other items to be acquired as a
result of the solicitation).
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).
(a) Insert the clause at 52.225-9, Buy AmericanConstruction Materials, in solicitations and contracts
for construction that is performed in the United States valued at less than $7,864,000.
(1) List in paragraph (b)(2) of the clause all foreign construction material excepted from the
requirements of the Buy American statute.
(2) If the head of the agency determines that a higher percentage is appropriate, substitute the
higher evaluation percentage in paragraph (b)(3)(i) of the clause.
(b)(1) Insert the provision at 52.225-10, Notice of Buy American RequirementConstruction Materials,
in solicitations containing the clause at 52.225-9.
(2) If insufficient time is available to process a determination regarding the inapplicability of the Buy
American statute before receipt of offers, use the provision with its Alternate I.
(c) Insert the clause at 52.225-11, Buy AmericanConstruction Materials under Trade Agreements, in
solicitations and contracts for construction that is performed in the United States valued at $7,864,000 or
more.
(1) List in paragraph (b)(3) of the clause all foreign construction material excepted from the
requirements of the Buy American statute, other than designated country construction material.
(2) If the head of the agency determines that a higher percentage is appropriate, substitute the
higher evaluation percentage in paragraph (b)(4)(i) of the clause.
(3) For acquisitions valued at $7,864,000 or more, but less than $10,335,931, use the clause with its
Alternate I. List in paragraph (b)(3) of the clause all foreign construction material excepted from the
requirements of theBuy American statute, unless the excepted foreign construction material is from a
designated country other than Bahrain, Mexico, and Oman.
(d)(1) Insert the provision at 52.225-12, Notice of Buy American RequirementConstruction Materials
under Trade Agreements, in solicitations containing the clause at 52.225-11.
(2) If insufficient time is available to process a determination regarding the inapplicability of the Buy
American statute before receipt of offers, use the provision with its Alternate I.
(3) For acquisitions valued at $7,864,000 or more, but less than $10,335,931, use the clause with its
Alternate II.
(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) If these Recovery Act provisions and clauses are only applicable to a project consisting of certain
line items in the contract, identify in the schedule the line items to which the provisions and clauses apply.
(3) 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 materials excepted from the Buy American statute or
section 1605 of the Recovery Act, other than manufactured construction material from a Recovery Act
designated country or unmanufactured construction material from a designated country.
(ii) Alternate I. List in paragraph (b)(3) of the clause all foreign construction material excepted
from the Buy American statute or section 1605 of the Recovery Act, other than
(A) Manufactured construction material from a Recovery Act designated country other than
Bahrain, Mexico, or Oman; or
(B) Unmanufactured construction material from a designated country other than Bahrain,
Mexico, or Oman.
