FaR Buy American Provisions in Government Construction

The Buy American provisions of FAR 25.200 implements 41 USC 83 and Executive Order 10582, December 17, 1954. The Buy America provisions also implement the component waiver test of the BuyBuy American Provisions - FAR 25.2 BAA Construction American Act for purchases of  commercially available off-the-shelf (COTS) items in accordance with 41 U.S.C 1907.

At Watson & Associates, LLC, our legal professional help across the United States to make sure that they are in compliance with relevant FAR provisions, stay on top of newly issued legislative changes, and to ultimate avoid exposure to fines and penalties.

The federal government applies the requirements for American-made products for Government contracts for the construction, alteration, or repair of any public building or public work within the U.S. The goal is to only use construction materials from domestic sources. We help clients apply the relevant FAR provisions

Buy America Legal and Consulting Services

At Watson & Associates, LLC, our government contract lawyers and consultants help clients to navigate through the complex requirements of FAR 25.1 and 25.2 and provide guidance on how to proceed with BAA construction provisions. We provide help with:

To speak with a legal professional, call us at 1-866-601-5518 for a Free Initial Consultation.

FAR Buy American Provision Important Questions for BAA Construction

Buy American ComplianceQ: Do the Buy American provisions apply to every good and services that I offer?

A: No. US Buy American statutory clause only apply to steel, iron and manufactured goods used on construction site that is incorporated into a public construction building or public work. If your produced does not meet the legal definition of “manufactured goods” then they are not covered by the Buy American provisions. It is also highly advisable to also hire domestic services providers. However, there is no statutory mandate to do so.

Q: What are “manufactured goods?”

A:  When reviewing Buy American regulations from OMB in 2 CFR 176, manufactured goods are those purchased for use on a public construction site and incorporated into the building or construction work. This includes work that is processed into a specific form or shape. The Buy American provisions also focus on goods that are combined with other raw materials. The key is that the manufactured goods should be manufactured in the United States.

Waivers and Exceptions to Buy American Provisions

The Buy America Statute allows for certain exceptions. The contracting office can divert from the tradition rules in various situations including if:

  • Enforcing the Buy American Statute is impracticable or inconsistent with public interest.
  • American made products are not available
  • The cost of domestic made products is unreasonable and more.
  • Government procurements acquired under trade agreements.

Although the Buy American Statute requires construction goods and services focus on American made goods etc., there are some exceptions to the BAA construction requirements.

Your project may qualify for a statutory exception or waiver if one of the following apply.

  • Nonavailability: manufactured goods, steel, or iron are not produced in the United States in sufficient quantities and not reasonably available and of satisfactory quality;
  • Unreasonable Cost: Inclusion of iron, steel, or manufactured goods produced in the United States could increase the overall project cost by more than 25%;
  • Public Interest: Applying the Buy American provision is inconsistent with the public interest.

See How Does the President’s View on Buy American Act and Buy America Impact Government Contractors?

FAR 25.202  Buy American Exceptions.

(a) When one of the following exceptions applies, the contracting officer may allow the contractor to acquire foreign construction materials without regard to the restrictions of the Buy American statute:

(1) Impracticable or inconsistent with public interest. The head of the agency may determine that application of the restrictions of the Buy American statute to a particular construction material would be impracticable or would be inconsistent with the public interest. The public interest exception applies when an agency has an agreement with a foreign government that provides a blanket exception to the Buy American statute.

(2) 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.

(3) Unreasonable cost. The contracting officer concludes that the cost of domestic construction material is unreasonable in accordance with 25.204.

(4) Information technology that is a commercial item. The restriction on purchasing foreign construction material does not apply to the acquisition of information technology that is a commercial item, when using Fiscal Year 2004 or subsequent fiscal year funds (Section 535(a) of Division F, Title V, Consolidated Appropriations Act, 2004, and similar sections in subsequent appropriations acts).

(b) Determination and findings. When a determination is made for any of the reasons stated in this section that certain foreign construction materials may be used, the contracting officer must list the excepted materials in the contract. The agency must make the findings justifying the exception available for public inspection.

(c) Acquisitions under trade agreements. For construction contracts with an estimated acquisition value of $7,358,000 or more, see subpart 25.4.

Non-Compliance  With Buy American Provisions

When the government evaluates bid proposals, there may be a bid protest alleging violations of the Buy American provisions. Under FAR 25.206, the contracting officer must investigate all allegations. If there is evidence of fraud, the government may take serious actions against the contractor including termination for default. In other situations, criminal liability may be present.

Buy America Help for Government Contractors Nationwide

government contract BAA lawyersPracticing Federal Procurement Law allows our attorneys and  Buy America consultants to help government contractors in virtually all states. Whether there is a bid protest our allegations of violating the Buy American Act provisions, Watson & Associates can help.

When clients require assistance with Free Trade Agreements Act and International Trade regulations, our  TAA lawyers can help.

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For immediate help with BAA construction disputes, call our Buy American lawyers at 1-866-601-5518. FREE INITIAL CONSULTATION.