U.S. Department of Homeland Security
Washington, DC 20528
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MEMORANDUM FOR: Heads of the Contracting Activities
FROM: Soraya Correa
Chief Procurement Officer
SUBJECT: Federal Acquisition Regulation Class Deviation (Number 20-07)
Implementation of the United States-Mexico-Canada-Agreement
Purpose: This class deviation is issued in accordance with Federal Acquisition Regulation
(FAR) 1.404 to implement the United States-Mexico-Canada Agreement (USMCA), as enacted
by Congress in the United States-Mexico-Canada Agreement Implementation Act (Pub. L.
116-113).
Effective Date: Immediately.
Background: CAAC Letter 2020-05, CAAC Consultation to Issue a Class Deviation for
Implementation of the United States-Mexico-Canada Agreement, was issued on June 29, 2020
(Attachment 1). The CAAC letter satisfies the FAR 1.404 requirement that agencies consult
with the CAAC chair before issuing a FAR class deviation.
The USMCA is effective July 1, 2020. It supersedes the North American Free Trade
Agreement (NAFTA), therefore references to NAFTA are replaced with USMCA. Although
Canada is still a designated country under the World Trade Organization (WTO) Government
Procurement Agreement, Canada is no longer a Free Trade Agreement country, because
chapter 13 of the USMCA (government procurement) applies only to the United States and
Mexico. Therefore, the various references to Canada as a Free Trade Agreement country are
deleted, including the $25,000 threshold. Mexico thresholds remain unchanged.
Requirement: There are several areas of the FAR that are amended by this class deviation
with the primary impact on FAR Part 25. Except for FAR clauses 52.212-3 and 52.212-5,
DHS contracting officers shall adhere to the deviated FAR text in Attachment A of the CAAC
letter (Attachment 2) and insert the full text of the deviated provisions and clauses. For
purposes of efficiency when maintaining clauses within the respective Component Contract
Writing Systems (CWS) in DHS, this class deviation does not include the commercial clauses
at FAR 52.212-3 and 52.212-5. Instead, when the clauses at FAR 52.212-3 and 52.212-5 are
used, contracting officers shall include the full text of applicable deviated provisions and
clauses in addition to the required commercial clauses.
SORAYA
CORREA
Digitally signed by
SORAYA CORREA
Date: 2020.08.03
11:55:04 -04'00'
click to sign
signature
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The provisions and clauses included in this class deviation are listed below:
52.204-8 Annual Representations and Certifications (DEVIATION 20-07);
52.222-19 Child Labor—Cooperation with Authorities and Remedies. (DEVIATION
20-07);
52.225-3 Buy AmericanFree Trade AgreementsIsraeli Trade Act (DEVIATION
20-07);
52.225-4 Buy AmericanFree Trade AgreementIsraeli Trade Act Certificate
(DEVIATION 20-07);
52.225-5 Trade Agreements (DEVIATION 20-07);
52.225-11 Buy AmericanConstruction Materials Under Trade Agreements
(DEVIATION 20-07); and
52.225-23 Required Use of American Iron, Steel, and Manufactured GoodsBuy
American Statute—Construction Materials Under Trade Agreements (DEVIATION
20-07).
Applicability: This class deviation is applicable to all solicitations and contracts, as defined
in FAR 2.101, awarded on or after the issuance date of this class deviation. Indefinite delivery
contracts awarded prior to the issuance date of this class deviation shall be modified to
include these revised clauses if new orders are placed against them.
Contracting officers may, at their discretion, include the FAR changes in solicitations issued
before the effective date, provided award of the resulting contract(s) occurs on or after the
effective date.
Expiration Date: This class deviation will remain in effect until it is incorporated into the
FAR or is otherwise rescinded.
Additional Information: In order to provide access to clauses in Component CWS,
Component Acquisition Policy Chiefs should coordinate with the appropriate Component
CWS personnel to determine if the addition of the deviated clauses to their CWS is possible.
The final full deviated text of clauses and provisions is provided in attachment 3 to assist with
updates to Component CWS.
Questions or comments about this class deviation may be directed to Binita Sharma (202) 702-
3794 or Binita.Sharma@hq.dhs.gov and Shaundra Ford (202) 447-0056 or
Shaundra.Ford@hq.dhs.gov
Attachments:
Attachment 1: CAAC Letter 2020-05- CAAC Consultation to Issue a Class Deviation for
Implementation of the United States-Mexico-Canada Agreement
Attachment 2: CAAC Letter Attachment A-FAR Deviated Text and Clauses
Attachment 3: Final Full Text of Provisions and Clauses
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Attachment 3
Final Full Text of Provisions and Clauses
52.204-8 Annual Representations and Certifications. (DEVIATION 20-07)
As prescribed in 4.1202(a), insert the following provision:
ANNUAL REPRESENTATIONS AND CERTIFICATIONS (JUL 2020) (DEVIATION 20-07)
(a)(1) The North American Industry Classification System (NAICS) code for this
acquisition is _______ [insert NAICS code].
(2) The small business size standard is _______ [insert size standard].
(3) The small business size standard for a concern which submits an offer in its own name,
other than on a construction or service contract, but which proposes to furnish a product which it
did not itself manufacture, is 500 employees.
(b)(1) If the provision at 52.204-7, System for Award Management, is included in this
solicitation, paragraph (d) of this provision applies.
(2) If the provision at 52.204-7, System for Award Management, is not included in this
solicitation, and the Offeror has an active registration in the System for Award Management
(SAM), the Offeror may choose to use paragraph (d) of this provision instead of completing the
corresponding individual representations and certifications in the solicitation. The Offeror shall
indicate which option applies by checking one of the following boxes:
[ ] (i) Paragraph (d) applies.
[ ] (ii) Paragraph (d) does not apply and the offeror has completed the individual
representations and certifications in the solicitation.
(c)(1) The following representations or certifications in SAM are applicable to this
solicitation as indicated:
(i) 52.203-2, Certificate of Independent Price Determination. This provision applies to
solicitations when a firm-fixed-price contract or fixed-price contract with economic price
adjustment is contemplated, unless—
(A) The acquisition is to be made under the simplified acquisition procedures in Part 13;
(B) The solicitation is a request for technical proposals under two-step sealed bidding
procedures; or
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(C) The solicitation is for utility services for which rates are set by law or regulation.
(ii) 52.203-11, Certification and Disclosure Regarding Payments to Influence Certain
Federal Transactions. This provision applies to solicitations expected to exceed $150,000.
(iii) 52.203-18, Prohibition on Contracting with Entities that Require Certain Internal
Confidentiality Agreements or Statements—Representation. This provision applies to all
solicitations.
(iv) 52.204-3, Taxpayer Identification. This provision applies to solicitations that do not
include provision at 52.204-7, System for Award Management.
(v) 52.204-5, Women-Owned Business (Other Than Small Business). This provision applies
to solicitations that
(A) Are not set aside for small business concerns;
(B) Exceed the simplified acquisition threshold; and
(C) Are for contracts that will be performed in the United States or its outlying areas.
(vi) 52.204-26, Covered Telecommunications Equipment or Services—Representation. This
provision applies to all solicitations.
(vii) 52.209-2, Prohibition on Contracting with Inverted Domestic Corporations—
Representation.
(viii) 52.209-5, Certification Regarding Responsibility Matters. This provision applies to
solicitations where the contract value is expected to exceed the simplified acquisition threshold.
(ix) 52.209-11, Representation by Corporations Regarding Delinquent Tax Liability or a
Felony Conviction under any Federal Law. This provision applies to all solicitations.
(x) 52.214-14, Place of PerformanceSealed Bidding. This provision applies to invitations
for bids except those in which the place of performance is specified by the Government.
(xi) 52.215-6, Place of Performance. This provision applies to solicitations unless the place
of performance is specified by the Government.
(xii) 52.219-1, Small Business Program Representations (Basic, Alternates I, and II). This
provision applies to solicitations when the contract will be performed in the United States or its
outlying areas.
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(A) The basic provision applies when the solicitations are issued by other than DoD, NASA,
and the Coast Guard.
(B) The provision with its Alternate I applies to solicitations issued by DoD, NASA, or the
Coast Guard.
(C) The provision with its Alternate II applies to solicitations that will result in a multiple-
award contract with more than one NAICS code assigned.
(xiii) 52.219-2, Equal Low Bids. This provision applies to solicitations when contracting by
sealed bidding and the contract will be performed in the United States or its outlying areas.
(xiv) 52.222-22, Previous Contracts and Compliance Reports. This provision applies to
solicitations that include the clause at 52.222-26, Equal Opportunity.
(xv) 52.222-25, Affirmative Action Compliance. This provision applies to solicitations,
other than those for construction, when the solicitation includes the clause at 52.222-26, Equal
Opportunity.
(xvi) 52.222-38, Compliance with Veterans' Employment Reporting Requirements. This
provision applies to solicitations when it is anticipated the contract award will exceed the
simplified acquisition threshold and the contract is not for acquisition of commercial items.
(xvii) 52.223-1, Biobased Product Certification. This provision applies to solicitations that
require the delivery or specify the use of USDA-designated items; or include the clause at
52.223-2, Affirmative Procurement of Biobased Products Under Service and Construction
Contracts.
(xviii) 52.223-4, Recovered Material Certification. This provision applies to solicitations
that are for, or specify the use of, EPA-designated items.
(xix) 52.223-22, Public Disclosure of Greenhouse Gas Emissions and Reduction Goals—
Representation. This provision applies to solicitations that include the clause at 52.204-7.)
(xx) 52.225-2, Buy American Certificate. This provision applies to solicitations containing
the clause at 52.225-1.
(xxi) 52.225-4, Buy AmericanFree Trade AgreementsIsraeli Trade Act Certificate.
(Basic, Alternates II and III.) This provision applies to solicitations containing the clause at
52.225-3.
(A) If the acquisition value is less than $50,000, the basic provision applies.
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(B) If the acquisition value is $50,000 or more but is less than $83,099, the provision with
its Alternate II applies.
(C) If the acquisition value is $83,099 or more but is less than $100,000, the provision with
its Alternate III applies.
(xxii) 52.225-6, Trade Agreements Certificate. This provision applies to solicitations
containing the clause at 52.225-5.
(xxiii) 52.225-20, Prohibition on Conducting Restricted Business Operations in Sudan—
Certification. This provision applies to all solicitations.
(xxiv) 52.225-25, Prohibition on Contracting with Entities Engaging in Certain Activities or
Transactions Relating to Iran—Representation and Certifications. This provision applies to all
solicitations.
(xxv) 52.226-2, Historically Black College or University and Minority Institution
Representation. This provision applies to solicitations for research, studies, supplies, or services
of the type normally acquired from higher educational institutions.
(2) The following representations or certifications are applicable as indicated by the
Contracting Officer:
[Contracting Officer check as appropriate.]
__ (i) 52.204-17, Ownership or Control of Offeror.
__ (ii) 52.204-20, Predecessor of Offeror.
__ (iii) 52.222-18, Certification Regarding Knowledge of Child Labor for Listed End
Products.
__ (iv) 52.222-48, Exemption from Application of the Service Contract Labor Standards to
Contracts for Maintenance, Calibration, or Repair of Certain Equipment—Certification.
__ (v) 52.222-52, Exemption from Application of the Service Contract Labor Standards to
Contracts for Certain ServicesCertification.
__ (vi) 52.223-9, with its Alternate I, Estimate of Percentage of Recovered Material Content
for EPA-Designated Products (Alternate I only).
__ (vii) 52.227-6, Royalty Information.
__ (A) Basic.
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__ (B) Alternate I.
__ (viii) 52.227-15, Representation of Limited Rights Data and Restricted Computer
Software.
(d) The Offeror has completed the annual representations and certifications electronically in
SAM accessed through https://www.sam.gov. After reviewing the SAM information, the Offeror
verifies by submission of the offer that the representations and certifications currently posted
electronically that apply to this solicitation as indicated in paragraph (c) of this provision have
been entered or updated within the last 12 months, are current, accurate, complete, and
applicable to this solicitation (including the business size standard applicable to the NAICS code
referenced for this solicitation), as of the date of this offer and are incorporated in this offer by
reference (see FAR 4.1201); except for the changes identified below [offeror to insert changes,
identifying change by clause number, title, date]. These amended representation(s) and/or
certification(s) are also incorporated in this offer and are current, accurate, and complete as of
the date of this offer.
(End of provision)
52.222-19 Child LaborCooperation with Authorities and Remedies. (DEVIATION 20-
07)
As prescribed in 22.1505(b), insert the following clause:
CHILD LABOR—COOPERATION WITH AUTHORITIES AND REMEDIES (JUL 2020) (DEVIATION 20-
07)
(a) Applicability. This clause does not apply to the extent that the Contractor is supplying
end products mined, produced, or manufactured in—
(1) Israel, and the anticipated value of the acquisition is $50,000 or more;
(2) Mexico, and the anticipated value of the acquisition is $83,099 or more; or
(3) Armenia, Aruba, Australia, Austria, Belgium, Bulgaria, Canada, Croatia, Cyprus, Czech
Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hong Kong, Hungary, Iceland,
Ireland, Italy, Japan, Korea, Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, Moldova,
Montenegro, Netherlands, New Zealand, Norway, Poland, Portugal, Romania, Singapore, Slovak
Republic, Slovenia, Spain, Sweden, Switzerland, Taiwan, Ukraine, or the United Kingdom and
the anticipated value of the acquisition is $182,000 or more.
(b) Cooperation with Authorities. To enforce the laws prohibiting the manufacture or
importation of products mined, produced, or manufactured by forced or indentured child labor,
authorized officials may need to conduct investigations to determine whether forced or
indentured child labor was used to mine, produce, or manufacture any product furnished under
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this contract. If the solicitation includes the provision 52.222-18, Certification Regarding
Knowledge of Child Labor for Listed End Products, or the equivalent at 52.212-3(i), the
Contractor agrees to cooperate fully with authorized officials of the contracting agency, the
Department of the Treasury, or the Department of Justice by providing reasonable access to
records, documents, persons, or premises upon reasonable request by the authorized officials.
(c) Violations. The Government may impose remedies set forth in paragraph (d) for the
following violations:
(1) The Contractor has submitted a false certification regarding knowledge of the use of
forced or indentured child labor for listed end products.
(2) The Contractor has failed to cooperate, if required, in accordance with paragraph (b) of
this clause, with an investigation of the use of forced or indentured child labor by an Inspector
General, Attorney General, or the Secretary of the Treasury.
(3) The Contractor uses forced or indentured child labor in its mining, production, or
manufacturing processes.
(4) The Contractor has furnished under the contract end products or components that have
been mined, produced, or manufactured wholly or in part by forced or indentured child labor.
(The Government will not pursue remedies at paragraph (d)(2) or paragraph (d)(3) of this clause
unless sufficient evidence indicates that the Contractor knew of the violation.)
(d) Remedies. (1) The Contracting Officer may terminate the contract.
(2) The suspending official may suspend the Contractor in accordance with procedures in
FAR Subpart 9.4.
(3) The debarring official may debar the Contractor for a period not to exceed 3 years in
accordance with the procedures in FAR Subpart 9.4.
(End of clause)
52.225-3 Buy AmericanFree Trade AgreementsIsraeli Trade Act. (DEVIATION 20-
07)
As prescribed in 25.1101(b)(1)(i), insert the following clause:
BUY AMERICAN—FREE TRADE AGREEMENTS—ISRAELI TRADE ACT (JUL 2020) (DEVIATION 20-
07)
(a) Definitions. As used in this clause—
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Bahrainian, Moroccan, Omani, Panamanian, or Peruvian end product means an article
that
(1) Is wholly the growth, product, or manufacture of Bahrain, Morocco, Oman, Panama, or
Peru; or
(2) In the case of an article that consists in whole or in part of materials from another
country, has been substantially transformed in Bahrain, Morocco, Oman, Panama, or Peru into a
new and different article of commerce with a name, character, or use distinct from that of the
article or articles from which it was transformed. The term refers to a product offered for
purchase under a supply contract, but for purposes of calculating the value of the end product
includes services (except transportation services) incidental to the article, provided that the value
of those incidental services does not exceed that of the article itself.
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
(1) 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
(2) 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;
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(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.
“Free Trade Agreement country” means Australia, Bahrain, Chile, Colombia, Costa Rica,
Dominican Republic, El Salvador, Guatemala, Honduras, Korea (Republic of), Mexico,
Morocco, Nicaragua, Oman, Panama, Peru, or Singapore.
Free Trade Agreement country end product means an article that
(1) Is wholly the growth, product, or manufacture of a Free Trade Agreement country; or
(2) In the case of an article that consists in whole or in part of materials from another
country, has been substantially transformed in a Free Trade Agreement country into a new and
different article of commerce with a name, character, or use distinct from that of the article or
articles from which it was transformed. The term refers to a product offered for purchase under a
supply contract, but for purposes of calculating the value of the end product includes services
(except transportation services) incidental to the article, provided that the value of those
incidental services does not exceed that of the article itself.
Israeli end product means an article that
(1) Is wholly the growth, product, or manufacture of Israel; or
(2) In the case of an article that consists in whole or in part of materials from another
country, has been substantially transformed in Israel into a new and different article of commerce
with a name, character, or use distinct from that of the article or articles from which it was
transformed.
United States means the 50 States, the District of Columbia, and outlying areas.
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(b) Components of foreign origin. Offerors may obtain from the Contracting Officer a list of
foreign articles that the Contracting Officer will treat as domestic for this contract.
(c) Delivery of end products. 41 U.S.C. chapter 83, Buy American statute, 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)). In addition, the Contracting Officer has
determined that FTAs (except the Bahrain, Morocco, Oman, Panama, and Peru FTAs) and the
Israeli Trade Act apply to this acquisition. Unless otherwise specified, these trade agreements
apply to all items in the Schedule. The Contractor shall deliver under this contract only domestic
end products except to the extent that, in its offer, it specified delivery of foreign end products in
the provision entitled “Buy AmericanFree Trade AgreementsIsraeli Trade Act Certificate.”
If the Contractor specified in its offer that the Contractor would supply a Free Trade Agreement
country end product (other than a Bahrainian, Moroccan, Omani, Panamanian, or Peruvian end
product) or an Israeli end product, then the Contractor shall supply a Free Trade Agreement
country end product (other than a Bahrainian, Moroccan, Omani, Panamanian, or Peruvian end
product), an Israeli end product or, at the Contractor's option, a domestic end product
Alternate I [Reserved] (DEVIATION 20-07).
Alternate II (JUL 2020) (DEVIATION 20-07). As prescribed in 25.1101(b)(1)(ii), insert the
following clause:
(BUY AMERICANFREE TRADE AGREEMENTSISRAELI TRADE ACT (JUL 2020) (DEVIATION
20-07)
(a) Definitions. As used in this clause—
Bahrainian, Moroccan, Omani, Panamanian, or Peruvian end product means an article
that
(1) Is wholly the growth, product, or manufacture of Bahrain, Morocco, Oman, Panama, or
Peru; or
(2) In the case of an article that consists in whole or in part of materials from another
country, has been substantially transformed in Bahrain, Morocco, Oman, Panama, or Peru into a
new and different article of commerce with a name, character, or use distinct from that of the
article or articles from which it was transformed. The term refers to a product offered for
purchase under a supply contract, but for purposes of calculating the value of the end product
includes services (except transportation services) incidental to the article, provided that the value
of those incidental services does not exceed that of the article itself.
Commercially available off-the-shelf (COTS) item—(1) Means any item of supply
(including construction material) that is
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(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
(1) 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
(2) 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.
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“Free Trade Agreement country” means Australia, Bahrain, Chile, Colombia, Costa Rica,
Dominican Republic, El Salvador, Guatemala, Honduras, Korea (Republic of), Mexico,
Morocco, Nicaragua, Oman, Panama, Peru, or Singapore.
Free Trade Agreement country end product means an article that
(1) Is wholly the growth, product, or manufacture of a Free Trade Agreement country; or
(2) In the case of an article that consists in whole or in part of materials from another
country, has been substantially transformed in a Free Trade Agreement country into a new and
different article of commerce with a name, character, or use distinct from that of the article or
articles from which it was transformed. The term refers to a product offered for purchase under a
supply contract, but for purposes of calculating the value of the end product includes services
(except transportation services) incidental to the article, provided that the value of those
incidental services does not exceed that of the article itself.
Israeli end product means an article that
(1) Is wholly the growth, product, or manufacture of Israel; or
(2) In the case of an article that consists in whole or in part of materials from another
country, has been substantially transformed in Israel into a new and different article of commerce
with a name, character, or use distinct from that of the article or articles from which it was
transformed.
United States means the 50 States, the District of Columbia, and outlying areas.
(b) Components of foreign origin. Offerors may obtain from the Contracting Officer a list of
foreign articles that the Contracting Officer will treat as domestic for this contract.
(c) Delivery of end products. 41 U.S.C. chapter 83 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)). In addition, the Contracting Officer has determined that the Israeli Trade Act
applies to this acquisition. Unless otherwise specified, this trade agreement applies to all items in
the Schedule. The Contractor shall deliver under this contract only domestic end products except
to the extent that, in its offer, it specified delivery of foreign end products in the provision entitled
“Buy AmericanFree Trade AgreementsIsraeli Trade Act.” If the Contractor specified in its
offer that the Contractor would supply an Israeli end product, then the Contractor shall supply an
Israeli end product or, at the Contractor's option, a domestic end product.
Alternate III (JUL 2020) (DEVIATION 20-07). As prescribed in 25.1101(b)(1)(iii), insert the
following clause:
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BUY AMERICAN—FREE TRADE AGREEMENTS—ISRAELI TRADE ACT (JUL 2020) (DEVIATION
20-07)
(a) Definitions. As used in this clause—
Bahrainian, Korean, Moroccan, Omani, Panamanian, or Peruvian end product means an
article that
(1) Is wholly the growth, product, or manufacture of Bahrain, Korea (Republic of),
Morocco, Oman, Panama, or Peru; or
(2) In the case of an article that consists in whole or in part of materials from another
country, has been substantially transformed in Bahrain, Korea (Republic of), Morocco, Oman,
Panama, or Peru into a new and different article of commerce with a name, character, or use
distinct from that of the article or articles from which it was transformed. The term refers to a
product offered for purchase under a supply contract, but for purposes of calculating the value of
the end product includes services (except transportation services) incidental to the article,
provided that the value of those incidental services does not exceed that of the article itself.
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
(1) 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
(2) For components manufactured by the Contractor, all costs associated with the
manufacture of the component, including transportation costs as described in paragraph (1) of
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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.
“Free Trade Agreement country” means Australia, Bahrain, Chile, Colombia, Costa Rica,
Dominican Republic, El Salvador, Guatemala, Honduras, Korea (Republic of), Mexico,
Morocco, Nicaragua, Oman, Panama, Peru, or Singapore.
Free Trade Agreement country end product means an article that
(1) Is wholly the growth, product, or manufacture of a Free Trade Agreement country; or
(2) In the case of an article that consists in whole or in part of materials from another
country, has been substantially transformed in a Free Trade Agreement country into a new and
different article of commerce with a name, character, or use distinct from that of the article or
articles from which it was transformed. The term refers to a product offered for purchase under a
supply contract, but for purposes of calculating the value of the end product includes services
(except transportation services) incidental to the article, provided that the value of those
incidental services does not exceed that of the article itself.
Israeli end product means an article that
(1) Is wholly the growth, product, or manufacture of Israel; or
Page 16 of 39
(2) In the case of an article that consists in whole or in part of materials from another
country, has been substantially transformed in Israel into a new and different article of commerce
with a name, character, or use distinct from that of the article or articles from which it was
transformed.
United States means the 50 States, the District of Columbia, and outlying areas.
(b) Components of foreign origin. Offerors may obtain from the Contracting Officer a list of
foreign articles that the Contracting Officer will treat as domestic for this contract.
(c) Delivery of end products. 41 U.S.C. chapter 83 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)). In addition, the Contracting Officer has determined that FTAs (except the
Bahrain, Korea (Republic of), Morocco, Oman, Panama, and Peru FTAs) and the Israeli Trade
Act apply to this acquisition. Unless otherwise specified, these trade agreements apply to all items
in the Schedule. The Contractor shall deliver under this contract only domestic end products
except to the extent that, in its offer, it specified delivery of foreign end products in the provision
entitled “Buy AmericanFree Trade AgreementsIsraeli Trade Act Certificate.” If the
Contractor specified in its offer that the Contractor would supply a Free Trade Agreement country
end product (other than a Bahrainian, Korean, Moroccan, Omani, Panamanian, or Peruvian end
product) or an Israeli end product, then the Contractor shall supply a Free Trade Agreement
country end product (other than a Bahrainian, Korean, Moroccan, Omani, Panamanian, or
Peruvian end product), an Israeli end product or, at the Contractor's option, a domestic end
product.
52.225-4 Buy AmericanFree Trade AgreementIsraeli Trade Act Certificate.
(DEVIATION 20-07)
As prescribed in 25.1101(b)(2)(i), insert the following provision:
BUY AMERICAN—FREE TRADE AGREEMENTS—ISRAELI TRADE ACT CERTIFICATE (JUL 2020)
(DEVIATION 20-07)
(a) The offeror certifies that each end product, except those listed in paragraph (b) or (c) 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 terms “Bahrainian, Moroccan, Omani, Panamanian, or Peruvian
end product,” “commercially available off-the-shelf (COTS) item,” “component,” “domestic end
product,” “end product,” “foreign end product,” “Free Trade Agreement country,” “Free Trade
Agreement country end product,” “Israeli end product,” and “United States” are defined in the
clause of this solicitation entitled “Buy AmericanFree Trade AgreementsIsraeli Trade Act.”
(b) The offeror certifies that the following supplies are Free Trade Agreement country end
products (other than Bahrainian, Moroccan, Omani, Panamanian, or Peruvian end products) or
Page 17 of 39
Israeli end products as defined in the clause of this solicitation entitled “Buy AmericanFree
Trade AgreementsIsraeli Trade Act”:
FREE TRADE AGREEMENT COUNTRY END PRODUCTS (OTHER THAN BAHRAINIAN,
MOROCCAN, OMANI, PANAMANIAN, OR PERUVIAN END PRODUCTS) OR ISRAELI END
PRODUCTS:
Line Item No.
Country of Origin
(c) The offeror shall list those supplies that are foreign end products (other than those listed
in paragraph (b) of this provision) as defined in the clause of this solicitation entitled “Buy
AmericanFree Trade AgreementsIsraeli Trade Act.” The offeror shall list as other 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.”
Other Foreign End Products:
Line Item No.
Country of Origin
(d) The Government will evaluate offers in accordance with the policies and procedures of
Part 25 of the Federal Acquisition Regulation.
(End of provision)
Alternate I [Reserved] (DEVIATION 20-07)
Alternate II (JUL 2020) (DEVIATION 20-07), As prescribed in 25.1101(b)(2)(ii), insert the
following provision:
Page 18 of 39
(a) The offeror certifies that each end product, except those listed in paragraph (b) or (c) 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 terms “Bahrainian, Moroccan, Omani, Panamanian, or Peruvian
end product,” “commercially available off-the-shelf (COTS) item,” “component,” “domestic end
product,” “end product,” “foreign end product,” “Free Trade Agreement country,” “Free Trade
Agreement country end product,” “Israeli end product,” and “United States” are defined in the
clause of this solicitation entitled “Buy AmericanFree Trade AgreementsIsraeli Trade Act.
(b) The offeror certifies that the following supplies are Israeli end products as defined in
the clause of this solicitation entitled “Buy AmericanFree Trade AgreementsIsraeli Trade
ActBalance of Payments Program”:
Israeli End Products
Line Item No.
Country of Origin
(c) The offeror shall list those supplies that are foreign end products (other than those listed
in paragraph (b) of this provision) as defined in the clause of this solicitation entitled “Buy
AmericanFree Trade AgreementsIsraeli Trade Act.” The offeror shall list as other 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.”
Other Foreign End Products:
Line Item No.
Country of Origin
(d) The Government will evaluate offers in accordance with the policies and procedures of
Part 25 of the Federal Acquisition Regulation.
Page 19 of 39
Alternate III (JUL 2020) (DEVIATION 20-07). As prescribed in 25.1101(b)(2)(iii), insert
the following provision:
(a) The offeror certifies that each end product, except those listed in paragraph (b) or (c) 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 terms “Bahrainian, Moroccan, Omani, Panamanian, or Peruvian
end product,” “commercially available off-the-shelf (COTS) item,” “component,” “domestic end
product,” “end product,” “foreign end product,” “Free Trade Agreement country,” “Free Trade
Agreement country end product,” “Israeli end product,” and “United States” are defined in the
clause of this solicitation entitled “Buy AmericanFree Trade AgreementsIsraeli Trade Act.
(b) The offeror certifies that the following supplies are Free Trade Agreement country end
products (other than Bahrainian, Korean, Moroccan, Omani, Panamanian, or Peruvian end
products) or Israeli end products as defined in the clause of this solicitation entitled “Buy
AmericanFree Trade Agreements—Israeli Trade Act”:
Free Trade Agreement Country End Products (Other than Bahrainian, Korean, Moroccan,
Omani, Panamanian, or Peruvian End Products) or Israeli End Products:
Line Item No.
Country of Origin
(c) The offeror shall list those supplies that are foreign end products (other than those listed
in paragraph (b) of this provision) as defined in the clause of this solicitation entitled “Buy
AmericanFree Trade AgreementsIsraeli Trade Act.” The offeror shall list as other 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.”
Other Foreign End Products:
Line Item No.
Country of Origin
Page 20 of 39
(d) The Government will evaluate offers in accordance with the policies and procedures of
Part 25 of the Federal Acquisition Regulation.
52.225-5 Trade Agreements. (DEVIATION 20-07)
As prescribed in 25.1101(c)(1), insert the following clause:
TRADE AGREEMENTS (JUL 2020) (DEVIATION 20-07)
(a) Definitions. As used in this clause.
Caribbean Basin country end product
(1) Means an article that
(i)(A) Is wholly the growth, product, or manufacture of a Caribbean Basin country; or
(B) In the case of an article that consists in whole or in part of materials from another
country, has been substantially transformed in a Caribbean Basin country into a new and
different article of commerce with a name, character, or use distinct from that of the article or
articles from which it was transformed; and
(ii) Is not excluded from duty-free treatment for Caribbean countries under 19 U.S.C.
2703(b).
(A) For this reason, the following articles are not Caribbean Basin country end products:
(1) Tuna, prepared or preserved in any manner in airtight containers;
(2) Petroleum, or any product derived from petroleum;
(3) Watches and watch parts (including cases, bracelets, and straps) of whatever type
including, but not limited to, mechanical, quartz digital, or quartz analog, if such watches or
watch parts contain any material that is the product of any country to which the Harmonized
Tariff Schedule of the United States (HTSUS) column 2 rates of duty apply (i.e., Afghanistan,
Cuba, Laos, North Korea, and Vietnam); and
(4) Certain of the following: textiles and apparel articles; footwear, handbags, luggage, flat
goods, work gloves, and leather wearing apparel; or handloomed, handmade, and folklore
articles;
Page 21 of 39
(B) Access to the HTSUS to determine duty-free status of articles of these types is available
at https://usitc.gov/tata/hts/index.htm. In particular, see the following:
(1) General Note 3(c), Products Eligible for Special Tariff treatment.
(2) General Note 17, Products of Countries Designated as Beneficiary Countries under the
United States-Caribbean Basin Trade Partnership Act of 2000.
(3) Section XXII, Chapter 98, Subchapter II, Articles Exported and Returned, Advanced or
Improved Abroad, U.S. Note 7(b).
(4) Section XXII, Chapter 98, Subchapter XX, Goods Eligible for Special Tariff Benefits
under the United States-Caribbean Basin Trade Partnership Act; and
(2) Refers to a product offered for purchase under a supply contract, but for purposes of
calculating the value of the acquisition, includes services (except transportation services)
incidental to the article, provided that the value of those incidental services does not exceed that
of the article itself.
Designated country means any of the following countries:
(1) A World Trade Organization Government Procurement Agreement (WTO GPA)
country (Armenia, Aruba, Australia, Austria, Belgium, Bulgaria, Canada, Croatia, Cyprus, Czech
Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hong Kong, Hungary, Iceland,
Ireland, Israel, Italy, Japan, Korea (Republic of), Latvia, Liechtenstein, Lithuania, Luxembourg,
Malta, Moldova, Montenegro, Netherlands, New Zealand, Norway, Poland, Portugal, Romania,
Singapore, Slovak Republic, Slovenia, Spain, Sweden, Switzerland, Taiwan (known in the
World Trade Organization as “the Separate Customs Territory of Taiwan, Penghu, Kinmen and
Matsu (Chinese Taipei)”), Ukraine, or United Kingdom);
(2) A Free Trade Agreement (FTA) country (Australia, Bahrain, Chile, Colombia, Costa
Rica, Dominican Republic, El Salvador, Guatemala, Honduras, Korea (Republic of), Mexico,
Morocco, Nicaragua, Oman, Panama, Peru, or Singapore);
(3) A least developed country (Afghanistan, Angola, Bangladesh, Benin, Bhutan, Burkina
Faso, Burundi, Cambodia, Central African Republic, Chad, Comoros, Democratic Republic of
Congo, Djibouti, Equatorial Guinea, Eritrea, Ethiopia, Gambia, Guinea, Guinea-Bissau, Haiti,
Kiribati, Laos, Lesotho, Liberia, Madagascar, Malawi, Mali, Mauritania, Mozambique, Nepal,
Niger, Rwanda, Samoa, Sao Tome and Principe, Senegal, Sierra Leone, Solomon Islands,
Somalia, South Sudan, Tanzania, Timor-Leste, Togo, Tuvalu, Uganda, Vanuatu, Yemen, or
Zambia); or
(4) A Caribbean Basin country (Antigua and Barbuda, Aruba, Bahamas, Barbados, Belize,
Bonaire, British Virgin Islands, Curacao, Dominica, Grenada, Guyana, Haiti, Jamaica,
Page 22 of 39
Montserrat, Saba, St. Kitts and Nevis, St. Lucia, St. Vincent and the Grenadines, Sint Eustatius,
Sint Maarten, or Trinidad and Tobago).
Designated country end product means a WTO GPA country end product, an FTA country
end product, a least developed country end product, or a Caribbean Basin country end product.
End product means those articles, materials, and supplies to be acquired under the contract
for public use.
Free Trade Agreement country end product means an article that
(1) Is wholly the growth, product, or manufacture of a Free Trade Agreement (FTA)
country; or
(2) In the case of an article that consists in whole or in part of materials from another
country, has been substantially transformed in an FTA country into a new and different article of
commerce with a name, character, or use distinct from that of the article or articles from which it
was transformed. The term refers to a product offered for purchase under a supply contract, but
for purposes of calculating the value of the end product includes services (except transportation
services) incidental to the article, provided that the value of those incidental services does not
exceed that of the article itself.
Least developed country end product means an article that
(1) Is wholly the growth, product, or manufacture of a least developed country; or
(2) In the case of an article that consists in whole or in part of materials from another
country, has been substantially transformed in a least developed country into a new and different
article of commerce with a name, character, or use distinct from that of the article or articles
from which it was transformed. The term refers to a product offered for purchase under a supply
contract, but for purposes of calculating the value of the end product, includes services (except
transportation services) incidental to the article, provided that the value of those incidental
services does not exceed that of the article itself.
United States means the 50 States, the District of Columbia, and outlying areas.
U.S.-made end product means an article that is mined, produced, or manufactured in the
United States or that is substantially transformed in the United States into a new and different
article of commerce with a name, character, or use distinct from that of the article or articles
from which it was transformed.,
WTO GPA country end product means an article that
(1) Is wholly the growth, product, or manufacture of a WTO GPA country; or
Page 23 of 39
(2) In the case of an article that consists in whole or in part of materials from another
country, has been substantially transformed in a WTO GPA country into a new and different
article of commerce with a name, character, or use distinct from that of the article or articles
from which it was transformed. The term refers to a product offered for purchase under a supply
contract, but for purposes of calculating the value of the end product includes services, (except
transportation services) incidental to the article, provided that the value of those incidental
services does not exceed that of the article itself.
(b) Delivery of end products. The Contracting Officer has determined that the WTO GPA
and FTAs apply to this acquisition. Unless otherwise specified, these trade agreements apply to
all items in the Schedule. The Contractor shall deliver under this contract only U.S.-made or
designated country end products except to the extent that, in its offer, it specified delivery of
other end products in the provision entitled “Trade Agreements Certificate.”
52.225-11 Buy AmericanConstruction Materials Under Trade Agreements.
(DEVIATION 20-07)
As prescribed in 25.1102(c), insert the following clause:
BUY AMERICAN—CONSTRUCTION MATERIALS UNDER TRADE AGREEMENTS (JUL 2020)
(DEVIATION 20-07)
(a) Definitions. As used in this clause—
Caribbean Basin country construction material means a construction material that
(1) Is wholly the growth, product, or manufacture of a Caribbean Basin country; or
(2) In the case of a construction material that consists in whole or in part of materials from
another country, has been substantially transformed in a Caribbean Basin country into a new and
different construction material distinct from the materials from which it was transformed.
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.
Page 24 of 39
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 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
(1) 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
(2) 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.
Designated country means any of the following countries:
(1) A World Trade Organization Government Procurement Agreement (WTO GPA)
country (Armenia, Aruba, Australia, Austria, Belgium, Bulgaria, Canada, Croatia, Cyprus, Czech
Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hong Kong, Hungary, Iceland,
Ireland, Israel, Italy, Japan, Korea (Republic of), Latvia, Liechtenstein, Lithuania, Luxembourg,
Malta, Moldova, Montenegro, Netherlands, New Zealand, Norway, Poland, Portugal, Romania,
Singapore, Slovak Republic, Slovenia, Spain, Sweden, Switzerland, Taiwan, Ukraine, or United
Kingdom);
(2) A Free Trade Agreement (FTA) country (Australia, Bahrain, Chile, Colombia, Costa
Rica, Dominican Republic, El Salvador, Guatemala, Honduras, Korea (Republic of), Mexico,
Morocco, Nicaragua, Oman, Panama, Peru, or Singapore);
(3) A least developed country (Afghanistan, Angola, Bangladesh, Benin, Bhutan, Burkina
Faso, Burundi, Cambodia, Central African Republic, Chad, Comoros, Democratic Republic of
Congo, Djibouti, Equatorial Guinea, Eritrea, Ethiopia, Gambia, Guinea, Guinea-Bissau, Haiti,
Kiribati, Laos, Lesotho, Liberia, Madagascar, Malawi, Mali, Mauritania, Mozambique, Nepal,
Niger, Rwanda, Samoa, Sao Tome and Principe, Senegal, Sierra Leone, Solomon Islands,
Page 25 of 39
Somalia, South Sudan, Tanzania, Timor-Leste, Togo, Tuvalu, Uganda, Vanuatu, Yemen, or
Zambia); or
(4) A Caribbean Basin country ((Antigua and Barbuda, Aruba, Bahamas, Barbados, Belize,
Bonaire, British Virgin Islands, Curacao, Dominica, Grenada, Guyana, Haiti, Jamaica,
Montserrat, Saba, St. Kitts and Nevis, St. Lucia, St. Vincent and the Grenadines, Sint Eustatius,
Sint Maarten, or Trinidad and Tobago).
Designated country construction material means a construction material that is a WTO
GPA country construction material, an FTA country construction material, a least developed
country construction material, or a Caribbean Basin country 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.
Free Trade Agreement country construction material means a construction material that
(1) Is wholly the growth, product, or manufacture of a Free Trade Agreement (FTA)
country; or
(2) In the case of a construction material that consists in whole or in part of materials from
another country, has been substantially transformed in a FTA country into a new and different
construction material distinct from the materials from which it was transformed.
Least developed country construction material means a construction material that
(1) Is wholly the growth, product, or manufacture of a least developed country; or
(2) In the case of a construction material that consists in whole or in part of materials from
another country, has been substantially transformed in a least developed country into a new and
different construction material distinct from the materials from which it was transformed.
Page 26 of 39
United States means the 50 States, the District of Columbia, and outlying areas.
WTO GPA country construction material means a construction material that
(1) Is wholly the growth, product, or manufacture of a WTO GPA country; or
(2) In the case of a construction material that consists in whole or in part of materials from
another country, has been substantially transformed in a WTO GPA country into a new and
different construction material distinct from the materials from which it was transformed.
(b) Construction materials. (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)). In addition, the Contracting Officer has
determined that the WTO GPA and Free Trade Agreements (FTAs) apply to this acquisition.
Therefore, the Buy American restrictions are waived for designated country construction
materials.
(2) The Contractor shall use only domestic or designated country construction material in
performing this contract, except as provided in paragraphs (b)(3) and (b)(4) of this clause.
(3) The requirement in paragraph (b)(2) of this clause 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 is 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. The cost of a
particular domestic construction material subject to the restrictions 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)(4) of
this clause shall include adequate information for Government evaluation of the request,
including—
Page 27 of 39
(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)(4)(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
Page 28 of 39
Construction material description
Unit of measure
Quantity
Price (dollars)
1
Item 1:
Foreign construction material
Domestic construction material
Item 2:
Foreign construction material
Domestic construction material
1
Include all delivery costs to the construction site and any applicable duty (whether or not a
duty-free entry certificate is issued).
List name, address, telephone number, and contact for suppliers surveyed. Attach copy of
response; if oral, attach summary.
Include other applicable supporting information.
(End of clause)
Alternate I (JUL 2020) (DEVIATION 20-07) As prescribed in 25.1102(c)(3), insert the following
clause:
BUY AMERICAN—CONSTRUCTION MATERIALS UNDER TRADE AGREEMENTS (JUL 2020)
(DEVIATION)
(a) Definitions. As used in this clause—
Bahrainian, Mexican, or Omani construction material means a construction material that
(1) Is wholly the growth, product, or manufacture of Bahrain, Mexico, or Oman; or
(2) In the case of a construction material that consists in whole or in part of materials
from another country, has been substantially transformed in Bahrain, Mexico, or Oman
into a new and different construction material distinct from the materials from which it
was transformed.
Caribbean Basin country construction material means a construction material that
(1) Is wholly the growth, product, or manufacture of a Caribbean Basin country; or
Page 29 of 39
(2) In the case of a construction material that consists in whole or in part of materials from
another country, has been substantially transformed in a Caribbean Basin country into a new and
different construction material distinct from the materials from which it was transformed.
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 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
(1) 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
(2) 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.
Designated country means any of the following countries:
Page 30 of 39
(1) A World Trade Organization Government Procurement Agreement (WTO GPA)
country (Armenia, Aruba, Australia, Austria, Belgium, Bulgaria, Canada, Croatia, Cyprus, Czech
Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hong Kong, Hungary, Iceland,
Ireland, Israel, Italy, Japan, Korea (Republic of), Latvia, Liechtenstein, Lithuania, Luxembourg,
Malta, Moldova, Montenegro, Netherlands, New Zealand, Norway, Poland, Portugal, Romania,
Singapore, Slovak Republic, Slovenia, Spain, Sweden, Switzerland, Taiwan, Ukraine, or United
Kingdom);
(2) A Free Trade Agreement (FTA) country (Australia, Bahrain, Chile, Colombia, Costa
Rica, Dominican Republic, El Salvador, Guatemala, Honduras, Korea (Republic of), Mexico,
Morocco, Nicaragua, Oman, Panama, Peru, or Singapore);
(3) A least developed country (Afghanistan, Angola, Bangladesh, Benin, Bhutan, Burkina
Faso, Burundi, Cambodia, Central African Republic, Chad, Comoros, Democratic Republic of
Congo, Djibouti, Equatorial Guinea, Eritrea, Ethiopia, Gambia, Guinea, Guinea-Bissau, Haiti,
Kiribati, Laos, Lesotho, Liberia, Madagascar, Malawi, Mali, Mauritania, Mozambique, Nepal,
Niger, Rwanda, Samoa, Sao Tome and Principe, Senegal, Sierra Leone, Solomon Islands,
Somalia, South Sudan, Tanzania, Timor-Leste, Togo, Tuvalu, Uganda, Vanuatu, Yemen, or
Zambia); or
(4) A Caribbean Basin country ((Antigua and Barbuda, Aruba, Bahamas, Barbados, Belize,
Bonaire, British Virgin Islands, Curacao, Dominica, Grenada, Guyana, Haiti, Jamaica,
Montserrat, Saba, St. Kitts and Nevis, St. Lucia, St. Vincent and the Grenadines, Sint Eustatius,
Sint Maarten, or Trinidad and Tobago).
Designated country construction material means a construction material that is a WTO
GPA country construction material, an FTA country construction material, a least developed
country construction material, or a Caribbean Basin country 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.
Page 31 of 39
Free Trade Agreement country construction material means a construction material that
(1) Is wholly the growth, product, or manufacture of a Free Trade Agreement (FTA)
country; or
(2) In the case of a construction material that consists in whole or in part of materials from
another country, has been substantially transformed in a FTA country into a new and different
construction material distinct from the materials from which it was transformed.
Least developed country construction material means a construction material that
(1) Is wholly the growth, product, or manufacture of a least developed country; or
(2) In the case of a construction material that consists in whole or in part of materials from
another country, has been substantially transformed in a least developed country into a new and
different construction material distinct from the materials from which it was transformed.
United States means the 50 States, the District of Columbia, and outlying areas.
WTO GPA country construction material means a construction material that
(1) Is wholly the growth, product, or manufacture of a WTO GPA country; or
(2) In the case of a construction material that consists in whole or in part of materials from
another country, has been substantially transformed in a WTO GPA country into a new and
different construction material distinct from the materials from which it was transformed.
(b) Construction materials (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)). In addition, the Contracting Officer has
determined that the WTO GPA and all the Free Trade Agreements except the Bahrain FTA,
United States-Mexico-Canada Agreement, and the Oman FTA apply to this acquisition.
Therefore, the Buy American statute restrictions are waived for designated country construction
materials other than Bahrainian, Mexican, or Omani construction materials.
(2) The Contractor shall use only domestic or designated country construction material
other than Bahrainian, Mexican, or Omani construction material in performing this contract,
except as provided in paragraphs (b)(3) and (b)(4) of this clause.
(3) The requirement in paragraph (b)(2) of this clause does not apply to information
technology that is a commercial item or to the construction materials or components listed by the
Government as follows:
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[Contracting Officer is 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. The cost of a
particular domestic construction material subject to the restrictions 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)(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) 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).
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(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)(4)(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)
1
Item 1:
Foreign construction material
Domestic construction material
Item 2:
Foreign construction material
Domestic construction material
1
Include all delivery costs to the construction site and any applicable duty (whether or not a
duty-free entry certificate is issued).
List name, address, telephone number, and contact for suppliers surveyed. Attach copy of
response; if oral, attach summary.
Include other applicable supporting information.
(End of clause)
Page 34 of 39
52.225-23 Required Use of American Iron, Steel, and Manufactured Goods—Buy
American StatuteConstruction Materials Under Trade Agreements. (DEVIATION 20-
07)
As prescribed in 25.1102(e), insert the following clause:
REQUIRED USE OF AMERICAN IRON, STEEL, AND MANUFACTURED GOODS—BUY AMERICAN
STATUTE—CONSTRUCTION MATERIALS UNDER TRADE AGREEMENTS (JUL 2020) (DEVIATION
20-07)
(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 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.
Designated country means any of the following countries:
(1) A World Trade Organization Government Procurement Agreement (WTO GPA)
country (Armenia, Aruba, Australia, Austria, Belgium, Bulgaria, Canada, Croatia, Cyprus, Czech
Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hong Kong, Hungary, Iceland,
Ireland, Israel, Italy, Japan, Korea (Republic of), Latvia, Liechtenstein, Lithuania, Luxembourg,
Malta, Moldova, Montenegro, Netherlands, New Zealand, Norway, Poland, Portugal, Romania,
Singapore, Slovak Republic, Slovenia, Spain, Sweden, Switzerland, Taiwan, Ukraine, or United
Kingdom);
(2) A Free Trade Agreement (FTA) country (Australia, Bahrain, Chile, Colombia, Costa
Rica, Dominican Republic, El Salvador, Guatemala, Honduras, Korea (Republic of), Mexico,
Morocco, Nicaragua, Oman, Panama, Peru, or Singapore);
(3) A least developed country (Afghanistan, Angola, Bangladesh, Benin, Bhutan, Burkina
Faso, Burundi, Cambodia, Central African Republic, Chad, Comoros, Democratic Republic of
Congo, Djibouti, Equatorial Guinea, Eritrea, Ethiopia, Gambia, Guinea, Guinea-Bissau, Haiti,
Kiribati, Laos, Lesotho, Liberia, Madagascar, Malawi, Mali, Mauritania, Mozambique, Nepal,
Niger, Rwanda, Samoa, Sao Tome and Principe, Senegal, Sierra Leone, Solomon Islands,
Somalia, South Sudan, Tanzania, Timor-Leste, Togo, Tuvalu, Uganda, Vanuatu, Yemen, or
Zambia); or
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(4) A Caribbean Basin country (Antigua and Barbuda, Aruba, Bahamas, Barbados, Belize,
Bonaire, British Virgin Islands, Curacao, Dominica, Grenada, Guyana, Haiti, Jamaica,
Montserrat, Saba, St. Kitts and Nevis, St. Lucia, St. Vincent and the Grenadines, Sint Eustatius,
Sint Maarten, or Trinidad and Tobago).
Designated country construction material means a construction material that is a WTO
GPA country construction material, an FTA country construction material, a least developed
country construction material, or a Caribbean Basin country construction material.
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.
Free trade agreement (FTA) country construction material means a construction material
that
(1) Is wholly the growth, product, or manufacture of an FTA country; or
(2) In the case of a construction material that consists in whole or in part of materials from
another country, has been substantially transformed in an FTA country into a new and different
construction material distinct from the materials from which it was transformed.
Least developed country construction material means a construction material that
(1) Is wholly the growth, product, or manufacture of a least developed country; or
(2) In the case of a construction material that consists in whole or in part of materials from
another country, has been substantially transformed in a least developed country into a new and
different construction material distinct from the materials from which it was transformed.
Manufactured construction material means any construction material that is not
unmanufactured construction material.
Nondesignated country means a country other than the United States or a designated
country.
Page 36 of 39
Recovery Act designated country means any of the following countries:
(1) A World Trade Organization Government Procurement Agreement (WTO GPA)
country (Armenia, Aruba, Australia, Austria, Belgium, Bulgaria, Canada, Croatia, Cyprus, Czech
Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hong Kong, Hungary, Iceland,
Ireland, Israel, Italy, Japan, Korea (Republic of), Latvia, Liechtenstein, Lithuania, Luxembourg,
Malta, Moldova, Montenegro, Netherlands, New Zealand, Norway, Poland, Portugal, Romania,
Singapore, Slovak Republic, Slovenia, Spain, Sweden, Switzerland, Taiwan, Ukraine, or United
Kingdom);
(2) A Free Trade Agreement country (FTA)(Australia, Bahrain, Chile, Colombia, Costa
Rica, Dominican Republic, El Salvador, Guatemala, Honduras, Korea (Republic of), Mexico,
Morocco, Nicaragua, Oman, Panama, Peru, or Singapore); or
(3) A least developed country (Afghanistan, Angola, Bangladesh, Benin, Bhutan, Burkina
Faso, Burundi, Cambodia, Central African Republic, Chad, Comoros, Democratic Republic of
Congo, Djibouti, Equatorial Guinea, Eritrea, Ethiopia, Gambia, Guinea, Guinea-Bissau, Haiti,
Kiribati, Laos, Lesotho, Liberia, Madagascar, Malawi, Mali, Mauritania, Mozambique, Nepal,
Niger, Rwanda, Samoa, Sao Tome and Principe, Senegal, Sierra Leone, Solomon Islands,
Somalia, South Sudan, Tanzania, Timor-Leste, Togo, Tuvalu, Uganda, Vanuatu, Yemen, or
Zambia).
Recovery Act designated country construction material means a construction material that is
a WTO GPA country construction material, an FTA country construction material, or a least
developed country 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.
WTO GPA country construction material means a construction material that
(1) Is wholly the growth, product, or manufacture of a WTO GPA country; or
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(2) In the case of a construction material that consists in whole or in part of materials from
another country, has been substantially transformed in a WTO GPA country into a new and
different construction material distinct from the materials from which it was transformed.
(b) Construction materials. (1) The restrictions of section 1605 of the American Recovery
and Reinvestment Act of 2009 (Pub. L. 111-5) (Recovery Act) do not apply to Recovery Act
designated country manufactured construction material. The restrictions of the Buy American
statute do not apply to designated country unmanufactured construction material. Consistent with
U.S. obligations under international agreements, this clause implements—
(i) Section 1605 of the Recovery Act 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) The Buy American statute by providing a preference for unmanufactured construction
material mined or produced in the United States over unmanufactured construction material
mined or produced in a nondesignated country.
(2) The Contractor shall use only domestic construction material, Recovery Act designated
country manufactured construction material, or designated country unmanufactured construction
material in performing this contract, except as provided in paragraphs (b)(3) and (b)(4) of this
clause.
(3) The requirement in paragraph (b)(2) of this clause does not apply to the construction
materials 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 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 is unreasonable when the
cumulative cost of such material, when compared to the cost of comparable foreign
manufactured construction material, other than Recovery Act designated country construction
material, will increase the overall 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, other than designated country construction material, by more than 6 percent;
Page 38 of 39
(ii) The construction material is not mined, produced, or manufactured in the United States
in sufficient and reasonably available commercial quantities of a satisfactory quality; or
(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.
Page 39 of 39
(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 other than
manufactured construction material from a Recovery Act designated country or unmanufactured
construction material from a designated country is noncompliant with the applicable 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 (NONDESIGNATED COUNTRY) 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)