(a) When one of the following exceptions applies, the contracting officer may allow the contractor to incorporate foreign construction materials without regard to the restrictions of section 1605 of the Recovery Act or the Buy American Act:
(1) Nonavailability. The head of the contracting activity may determine that a particular construction material is not mined, produced, or manufactured in the United States in sufficient and reasonably available commercial quantities of a satisfactory quality. The determinations of nonavailability of the articles listed at 25.104(a) and the procedures at 25.103(b)(1) also apply if any of those articles are acquired as construction materials.
(2) Unreasonable cost. The contracting officer concludes that the cost of domestic construction material is unreasonable in accordance with 25.605.
(3) Inconsistent with public interest. The head of the agency may determine that application of the restrictions of section 1605 of the Recovery Act or the Buy American Act to a particular construction material would be inconsistent with the public interest.
(b) Determinations. When a determination is made, for any of the reasons stated in this section, that certain foreign construction materials may be used-
(1) The contracting officer shall list the excepted materials in the contract; and
(2) The head of the agency shall publish a notice in the Federal Register within two weeks after the determination is made, unless the construction material has already been determined in the FAR to be domestically nonavailable (see list at 25.104). The notice shall include-
(i) The title “Buy American Exception under the American Recovery and Reinvestment Act of 2009”;
(ii) The dollar value and brief description of the project; and
(iii) A detailed justification as to why the restriction is being waived.
(c) Acquisitions under trade agreements.
(1) For construction contracts with an estimated acquisition value of $7,804,000 or more, also see Subpart 25.4. Offers of products determined to be eligible products per Subpart 25.4 shall receive equal consideration with domestic offers per Subpart 25.4.
(2) For purposes of the Recovery Act, designated countries do not include the Caribbean Basin Countries.
