FAR 52.225-9 Buy American-Construction Materials. Basic (May 2014) (Current)

As prescribed in 25.1102(a), insert the clause at 52.225-9, Buy American—Construction Materials, in solicitations and contracts for construction that is performed in the United States valued at less than $7,358,000. (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.

Buy American—Construction 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




Price (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 and any applicable duty (whether or not a duty-free entry certificate is issued).]

(End of Clause)


Prime’s Interest;
Services ✖ Outside U.S. ✖ Supplies ✖ Construction ✔ Architect-Eng ✖ (Applies to contracts for construction that is performed in the United States valued at less than $7,358,000.);

52.209-1 Qualification Requirements.

52.211-14 Notice of Priority Rating for National Defense, Emergency Preparedness, and Energy Program Use.

52.211-16 Variation in Quantity.

52.211-18 Variation in Estimated Quantity.

52.212-3 Offeror Representations and Certifications-Commercial Items.

52.212-5 Contract Terms and Conditions Required To Implement Statutes or Executive Orders-Commercial Items.

52.222-18 Certification Regarding Knowledge of Child Labor for Listed End Products.

52.225-1 Buy American-Supplies

52.225-11 Buy American-Construction Materials under Trade Agreements.

52.225-23 Required Use of American Iron, Steel, and Manufactured Goods-Buy American Statute-Construction Materials under Trade Agreements.

52.225-3 Buy American-Free Trade Agreements-Israeli Trade Act.

52.225-5 Trade Agreements.

52.225-7 Waiver of Buy American Statute for Civil Aircraft and Related Articles.

52.225-8 Duty-Free Entry.

52.227-19 Commercial Computer Software License.

52.227-20 Rights in Data-SBIR Program.

52.246-11 Higher-Level Contract Quality Requirement.

52.246-15 Certificate of Conformance.

52.247-36 F.a.s. Vessel, Port of Shipment.

52.247-37 F.o.b. Vessel, Port of Shipment.

52.247-38 F.o.b. Inland Carrier, Point of Exportation.

52.247-39 F.o.b. Inland Point, Country of Importation.

52.247-40 Ex Dock, Pier, or Warehouse, Port of Importation.

52.247-41 C.& f. Destination.

52.247-42 C.i.f. Destination.

52.247-43 F.o.b. Designated Air Carrier’s Terminal, Point of Exportation.

52.247-44 F.o.b. Designated Air Carrier’s Terminal, Point of Importation.

52.247-51 Evaluation of Export Offers.

52.204-24 Representation Regarding Certain Telecommunications and Video Surveillance Services or Equipment.

52.204-25 Prohibition on Contracting for Certain Telecommunications and Video Surveillance Services or Equipment

52.246-26 Reporting Nonconforming Items.

52.204-26 Covered Telecommunications Equipment or Services-Representation.

252.225-7052 Restriction on the Acquisition of Certain Magnets, Tantalum, and Tungsten.

252.225-7017 Photovoltaic Devices.

252.225-7021 Trade Agreements.

252.225-7036 Buy American-Free Trade Agreements--Balance of Payments

252.208-7000 Intent to Furnish Precious Metals as Government-Furnished Material.

252.211-7006 Passive Radio Frequency Identification.

252.213-7000 Notice to Prospective Suppliers on Use of Supplier Performance Risk System in Past Performance Evaluations.

252.217-7001 Surge Option.

252.217-7026 Identification of Sources of Supply.

252.225-7001 Buy American and Balance of Payments Program.

252.225-7013 Duty-Free Entry.

252.225-7018 Photovoltaic Devices-Certificate.

252.225-7038 Restriction on Acquisition of Air Circuit Breakers.

252.225-7044 Balance of Payments Program--Construction Material.

252.225-7045 Balance of Payments Program--Construction Material Under Trade Agreements.

252.229-7001 Tax Relief.

252.229-7002 Customs Exemptions (Germany).

252.235-7011 Final Scientific or Technical Report.

252.239-7017 Notice of Supply Chain Risk.

252.239-7018 Supply Chain Risk.

252.246-7007 Contractor Counterfeit Electronic Part Detection and Avoidance System.

1852.225-8 Duty-Free Entry of Space Articles.

1852.235-73 Final Scientific and Technical Reports.

1852.242-73 NASA Contractor Financial Management Reporting.

1852.245-73 Financial reporting of NASA property in the custody of contractors.

1852.246-71 Government Contract Quality Assurance.

1852.247-73 Bills of Lading.








5252.204-9501 National Stock Numbers (NAVAIR) (Mar 2007)

5252.247-9507 Packaging and Marking of Reports (NAVAIR)

5252.247-9508 Prohibited Packing Materials (NAVAIR)

5252.247-9509 Preservation, Packaging, Packing, and Marking (NAVAIR) (Jul 1998)

5252.247-9510 Preservation, Packaging, Packing, and Marking for Foreign Military Sales (FMS) Requirements (NAVAIR) (Oct 2005)

5252.247-9514 Technical Data Packing Instructions (NAVAIR)

3052.217-98 Delays (USCG).

5352.217-9000 Long Lead Limitation of Government Liability

5152.225-5914 Commodity Shipping Instructions

5152.236-5900 Electrical and Structural Building Standards for Construction Projects

5152.247-5900 Inbound/Outbound Cargo and Contractor Equipment Census

552.211-10 Commencement, Prosecution, and Completion of Work.

552.236-11 Use and Possession Prior to Completion.

552.236-15 Schedules for Construction Contracts.

552.236-21 Specifications and Drawings for Construction.

552.238-86 Delivery Schedule.

552.238-87 Delivery Prices.

552.238-89 Deliveries to the U.S. Postal Service.

552.238-90 Characteristics of Electric Current.

552.238-91 Marking and Documentation Requirements for Shipping.

552.238-92 Vendor Managed Inventory (VMI) Program.

552.238-94 Accelerated Delivery Requirements.

552.238-95 Separate Charge for Performance Oriented Packaging (POP).

552.238-96 Separate Charge for Delivery within Consignee's Premises.

552.238-97 Parts and Service.

552.238-99 Delivery Prices Overseas.

552.238-100 Transshipments.

552.238-107 Export Traffic Release (Supplies).

552.238-108 Spare Parts Kit.

552.238-109 Authentication Supplies and Services.

552.238-110 Commercial Satellite Communication (COMSATCOM) Services.

552.238-111 Environmental Protection Agency Registration Requirement.

552.211-13 Time Extensions.

552.211-70 Substantial Completion.

552.211-73 Marking.

552.211-75 Preservation, Packaging and Packing.

552.211-76 Charges for Packaging, Packing, and Marking.

552.211-77 Packing List.

552.211-79 Acceptable Age of Supplies.

552.211-80 Age on Delivery.

552.211-81 Time of Shipment.

552.211-83 Availability for Inspection, Testing, and Shipment/Delivery.

552.211-85 Consistent Pack and Package Requirements.

552.211-86 Maximum Weight per Shipping Container.

552.211-87 Export Packing.

552.211-88 Vehicle Export Preparation.

552.211-89 Non-Manufactured Wood Packaging Material for Export.

552.211-90 Small Parts.

552.211-91 Vehicle Decals, Stickers, and Data Plates.

552.211-92 Radio Frequency Identification (RFID) Using Passive Tags.

552.211-94 Time of Delivery.

552.242-70 Status Report of Orders and Shipments.

552.246-70 Source Inspection by Quality Approved Manufacturer.

552.246-71 Source Inspection by Government.

552.246-72 Final Inspection and Tests.

552.246-77 Additional Contract Warranty Provisions for Supplies of a Noncomplex Nature.

552.246-78 Inspection at Destination.

652.247-70 Notice of Shipments.

652.247-71 Shipping Instructions

752.247-70 Preference for privately owned U.S.-flag commercial vessels.

952.211-70 Priorities and allocations for energy programs (solicitations).

952.211-71 Priorities and allocations for energy programs (contracts).

Working with a set of FAR clauses from an RFP or contract?

Try pasting them into our tool to instantly generate a risk profile, including the basic flow down recommendation.


Works best with Chrome and Edge browsers!