PRESOL | 56 | Door & Window Replacement

FBO DAILY ISSUE OF AUGUST 23, 2009 FBO #2829
SOLICITATION NOTICE

56 -- Door & Window Replacement

Notice Date: 8/21/2009
Notice Type: Combined Synopsis/Solicitation
NAICS: 236210 — Industrial Building Construction
Contracting Office: Department of Labor, Employment Training Administration, Muhlenberg Career Dev. Center, 3875 State Route, Highway, 181 North, Greenville, Kentucky, 42345
ZIP Code: 42345
Solicitation Number: ARRA-01
Point of Contact: James R. Hill, Phone: 270-377-3253, Glen Embry, Phone: 270-377-3255
E-Mail Address: hill.ralph@jobcorps.org, embry.glen@jobcorps.org
(hill.ralph@jobcorps.org, embry.glen@jobcorps.org)
Small Business Set-Aside: N/A
Description: INVITATION TO BID PROJECT: Door & Window Replacement PROJECT NUMBER ARRA Project #1 DATE: 8-20-09 LOCATION: Muhlenberg Career Development Center 3875 State Route Highway 181 North Greenville, KY. 42345 OWNER: U.S. DEPARTMENT OF LABOR (DOL) CENTER OPERATOR: Horizons Youth Services 3586 Horizons Way Harrisonburg, VA 22802 BID SUBMISSION: Sealed bid in duplicate BIDS ARE DUE NOT LATER THAN: September, 28 - 2:00 p.m. BID OPENING Muhlenberg Career Development Center Attn: James R. Hill Purchasing Agent 3875 State Route Highway 181 North Greenville, KY 42345 CONTRACT: Fixed price, single lump sum contract BID SECURITY: See Instruction to Bidders and Bid Form for bid security CONTRACT DOCUMENTS: The attached Bid Package contains the Construction Scope of Work, Conditions of the Contract and Specifications describing the extent and requirements of the work. PERFORMANCE TIME: See Bid Form for requirements on Time of Completion and any Liquidated Damages. ESTIMATED COST: Between $0 and $19,000 The owner reserves the right to reject any or all bids. INSTRUCTION TO BIDDER OFFER Make offers in accordance with the following instructions: 1. Bid Form: Must be signed by an authorized official of the company making offer. 2. Attach a bid breakdown to the Bid Form. Breakdown shall separately identify major components/assemblies of the project with associated costs. 3. Each bidder shall carefully examine the contract documents and shall inspect the existing construction site, prior to submitting a bid, to familiarize himself with all conditions under which the work is performed. No variance or extra payment will be allowed for requirements or conditions arising during construction that were apparent prior to starting work. No extra payment will be made for those items arising during construction which would have been reasonably anticipated to be required during the construction or could have been detected by close inspection at the site prior to bid. 4. Deliver bid to Purchasing agent, Ralph Hill,, Office of Purchasing,Muhlenberg Career Development Center,3875 State Route Highway 181 North, Greenville, KY. 42345 on or before the time stated in the Invitation to Bid in a sealed opaque envelope marked "BID FOR" and bearing the title of the project and name of the bidder. Bids delivered via Fed Ex, Express Mail, UPS, etc. is acceptable. Bids received after the time stated in the Invitation to Bid will be returned unopened. Facsimile offers will not be accepted for sealed bid requirements. Prime bidders attendance at Bid Opening is not mandatory. INTERPRETATION OF CONTRACT DOCUMENTS Should a bidder find discrepancies in, or omissions from, the bid package, or should he be in doubt as to their meaning, he shall contact the Purchasing Agent, Ralph Hill (270) 377-3253 for an interpretation thereof prior to five working days of the time of bid opening. The interpretation of the documents will be made by written Addendum; a copy of which will be issued to each bidder having procured a bid package. ADDENDA OR BULLETINS Any addenda issued prior to the bid opening become part of the contract documents; shall be covered in the bid; and become a part of the contract. AWARDS OR REJECTION OF BIDS All else being equal, the contract, if awarded, will be to the lowest responsible bidder. The owner, however, shall be the sole judge as to who is responsible and reserves the right to reject any or all bids and to waive any irregularity or technicality in bids received. CONTRACT PERFORMANCE TIME AND LIQUIDATED DAMAGES See "BID FORM" for requirements for contract performance and provisions for liquidated damages. BIDDER QUALIFICATIONS Prime bidder shall have a current business and general contracting license and have a minimum of five years experience in the type of work required by the Construction Scope of Work for this Project. Subcontractors shall have a business license to practice their respective trade and a minimum of 3 years experience in the trade. All plumbing and electrical work of this Project shall be performed by licensed professionals having a minimum 3 years experience. CONSTRUCTION SCOPE OF WORK Door & Window Replacement Muhlenberg Career Development Center SECTION I. GENERAL The construction work includes, but is not limited to, the following: The work involves removing existing doors and windows and installing new replacements. The extent of the work is further described in Section III of this scope of work and in the attached drawings. The general conditions of the contract for construction shall be consistent with the Federal Acquisition Regulation (FAR) except as modified or amended herein. This project is an American Reinvestment and Recovery Act project and is subject to all Buy American Act provisions wjhich are included at the end of the scope of work. SECTION II. CONSTRUCTION REQUIREMENTS AND SPECIFIC CONDITIONS OF THE CONTRACT •A. CODES The contractor shall, in accomplishing the Scope of Work, use to the extent practicable, as long as they are deemed reasonable and desirable by the U.S. Department of Labor, building codes, ordinances, and regulations which are enforced by City, County, State or relevant Federal agencies. Where such codes are not in effect it will be the responsibility of the contractor to consult and use to the extent practicable, the national building code generally used in the area. OSHA and EPA regulations shall also apply. All conflicts and requests for interpretation or clarification shall be submitted to the Purchasing Agent, Muhlenberg Career Development Center. All work associated with this Scope of Work shall follow as far as practicable the "Uniform Federal Accessibility Standards" (UFAS) as printed in the Federal Register, April 1, 1988. Specific provisions are not provided for accessibility of the visually and hearing impaired. All construction work shall adhere to the current edition of the National Fire Protection Association (NFPA) Standard No. 101, Life Safety Code. References and standards referenced with NFPA No. 101 are considered part of the Life Safety Code and serve as minimum requirements when applicable. Occupational Safety and Health Administration (OSHA) and Environmental Protection Agency (EPA) regulations shall also apply. All electrical work shall meet the requirements of the latest edition of the National Electrical Code (NEC) and the Illuminating Engineering Society (IES) Handbook. All ventilation work shall meet the requirements of ASHRAE Standard 62.1989. Refrigeration machines must comply with Clean Air Act amendment Title VI: Stratospheric Ozone Protection and Code of Federal Regulations (CFR) 40, Part 82: Protection of Stratospheric Ozone. No chloro-fluorocarbon (CFC) refrigerants are permitted in new refrigeration machines. Hydrochloro-fluorocarbon (HCFC) refrigerants may be considered if the life cycle cost analysis shows them to be cost effective. Factors to be included in the analysis are capacity, operation and maintenance requirements and environmental impact. Refrigeration machines using refrigerants must be equipped with fittings and equipment for recovery, recycling and purging. Required protection systems include monitors and alarms, and electrical phase control. The U.S. Department of Labor requires that any asbestos-related work to be accomplished under this Scope of Work conform to the current regulations promulgated by the Environmental Protection Agency (EPA), the National Emission Standards for Hazardous Air Pollutants (NESHAP), the Occupational Safety and Health Administration (OSHA), and the National Institute for Occupational Safety and Health (NIOSH). Where the regulations of the State are more stringent than those of the Federal Government, the regulations of the State shall prevail. All new work of this project shall be in accordance with federal directives for energy conservation. All construction shall conform to the current edition of the Model Energy Code used in the state where the work is performed. With respect to energy and water conservation and in conformity with EPACT-92, Title 10 Code of Federal Regulations (10CFR), and Executive Order #12902, all HVAC, plumbing and electrical systems and other energy related components of the work shall meet or exceed Standard ASHRAE/IES 90.1 and/or local conservation codes, whichever is the more stringent. A Performance Bond will not be required for this project. B. DAVIS-BACON ACT This project is subject to the provisions of the Davis-Bacon Act for construction work on a Federally funded Job Corps center. Accordingly, the contractor shall be required to conform to the latest wage rate decision for the locality. The Workforce Investment Act (WIA) imposed Davis-Bacon labor standards upon contractors and subcontractors. It provides that all laborers and mechanics employed by contractors and subcontractors in any construction, alteration or repair, including painting and decorating of projects, buildings, and works which are federally assisted under this Act, shall be paid wages at rates not less than those prevailing on similar construction in accordance with the Davis-Bacon Act. The contractor shall provide proof of compliance with wage rate and fringe percentage via weekly payroll records and certification that employees are being paid according to payroll records. The Certified Payroll Records shall be submitted to the Purchasing Agent. The Purchasing Agent will compare the payroll record with the daily visitor sign in log. Any discrepancies between the payroll record and the center log shall be reconciled by the Contractor before a progress payment will be made. The Contractor shall be required to post bilingual (English, Spanish) signs in prominent locations at the project site informing all workers of their right to Davis- Bacon wages. C. REQUIRED INSURANCE Prior to the effective date of this contract, the Contractor shall provide the Purchasing Agent with proof of insurance via appropriately executed certificate of insurance and deliver same to Horizons Youth Services (HYS), dba Muhlenberg Career Development Center. Such certificate shall identify this contract and contain provisions that coverage afforded under the policies shall not be canceled, terminated or materially altered until at least thirty (30) days prior written notice has been given to HYS. "The Contractor shall indemnify, defend, and hold HYS harmless from any claim, demand, suit, liability, judgment and expense (including any attorney's fees and other costs of litigation) arising out of or relating to injury, disease, or death of persons or damage to or loss of property resulting from or in connection with performance of this contract by the Contractor, its agents, employees, and subcontractors or any one for whom the Contractor may be responsible. The obligations, indemnities, and liabilities assumed by the Contractor under this paragraph shall not extend to any liability caused by the negligence of HYS or its employees. The Contractor's liability shall not be limited by any provisions or limits of insurance set forth in this contract. HYS shall reasonably notify the Contractor of any claim for which it may be liable under this paragraph." Without limiting any liability or any other obligations of the Contractor, the Contractor shall provide and maintain and cause its subcontractors to provide and maintain insurance coverage with forms and insurers acceptable to HYS, until all obligations under this contract are satisfied, as follows: 1. Workers' Compensation insurance to cover obligations imposed by Federal and State statutes having jurisdiction of its employees engaged in the performance of this contract, and Employers' Liability insurance with a minimum limit of one hundred thousand dollars ($100,000). 2. Commercial General Liability insurance with a minimum combined single limit of one million dollars ($1,000,000) each occurrence. The policy shall include coverage for bodily injury, personal injury, broad form property damage, blanket contractual, contractors protective, products and complete operations. 3. Comprehensive Automobile Liability insurance with a combined single limit for bodily injury and property damage of not less than one million dollars ($1,000,000) each occurrence with respect to Contractors' vehicles (whether owned, non owned, or hired) assigned to or utilized in the performance of this contract. The policies required shall name HYS, its agents, officials and employees as additional insured and shall specify that the insurance afforded the Contractor shall be primary insurance and that any insurance coverage carried by HYS or its employees shall be excess coverage except as provided by state law, and not contributory insurance to that provided by the Contractor. Failure on the part of the Contractor to provide and maintain the required liability insurance and provide proof thereof to HYS within thirty (30) days following commencement of a new policy period, shall constitute a material breach of the contract upon which HYS may immediately terminate this contract. The Contractor must provide a copy of its safety plan or a copy of the Center's Safety Plan will be provided for adherence. The Contractor's safety plan must meet or exceed OSHA standards. •D. PRE-BID SITE INSPECTION A pre-site inspection in not required. However the contractor shall release and save HYS harmless from any and all loss, cost, damage, or expense which he may incur, suffer, or be required to pay because of errors, omissions, or inconsistencies in his bid, or of a failure on the part of HYS and the Muhlenberg Career Development Center to take into account all of the factors affecting the work. A pre-bid conference/walk-through shall be conducted at the project site with interested contractors on 9-16-09 at 10:00 am Central time. Questions related to the project may be presented and discussed at the pre-bid conference. E. DRAWINGS AND SPECIFICATIONS This Construction Scope of Work may contain material specifications and/or drawings relevant to the work. The Contractor shall review the scope of this project, specifications and any drawings to become thoroughly familiar with the extent of the work and requirements. The contractor shall not submit drawings and specifications, for approval or building permit, to any local or state building authority without prior approval of the Purchasing Agent. For clarification of any part of the scope of work, address questions to the Purchasing Agent. HYS makes no assurance to the Contractor as to the accuracy of the drawings and completeness of the specifications. The Contractor shall be responsible for all incidental work not specified but required by building codes or professional practice for the complete and correct installation of the work. No allowance will be made for failure of the Contractor or subcontractors to correctly interpret and clearly understand the intent of the scope of work and their responsibility to perform the work in full. F. FACILITY OPERATING HOURS The center shall remain in operation throughout construction. All construction activity shall be coordinated with the Purchasing Agent in order to minimize disruption to center operations. All anticipated interruptions to center operations shall have prior approval from the Purchasing Agent at least 36 hours in advance of the interruption. Contractor access to the work site shall be limited to the period of time 7:30 a.m. to 3:30 p.m., daily. G. SUPERVISION AND DISCIPLINE The Contractor shall provide a competent job superintendent, job foreman, or lead man who is authorized to act for the contractor and be on site daily to oversee and direct the work. The contractor's employees shall conduct themselves in an orderly manner and adhere to all the center rules and regulations. The Center and HYS reserve the right to direct the removal of any Contractor's employee for conduct in violation of center regulations or conduct which is deemed detrimental to the center operation. The Contractor, its agents, employees, subcontractors or any one whom the Contractor may be responsible for shall: i) Prior to entering the center, sign the visitor log at Security ii) Observe security regulations iii) Not be permitted to utilize the food services facilities iv) Not fraternize with students v) Not consume or transport alcohol, drugs or firearms onto the center vii) Dress in an appropriate manner for this site. No vulgar and/or provocative statements will be displayed. H. NOTICE TO PROCEED The contractor shall begin the work within thirty (30) days from written "Notice to Proceed". A pre-construction meeting shall be held at the center after execution of the agreement and prior to commencement of the work. Those in attendance shall include the Purchasing Agent, center director, center department supervisors affected by the work, contractor and contractor's lead man, subcontractors and when applicable, materials manufacturers representatives. The meeting agenda shall include significant items that may affect the project, e.g., progress meetings, progress payments, construction schedule, critical sequencing, access to the center, use of the premises, construction staging area, material and tool storage, receiving, security, etc. Prior to commencing work, the Contractor shall submit to the Purchasing Agent a list of all employees (name and title or trade) who are or will be assigned to work on the project. The Contractor shall update the "authorized" list, adding or deleting names as necessary. The list will be maintained at the Security office, main gate. Employees showing up at the main gate whose names are not on the authorized list shall be denied access to the Center. All employees shall individually sign the visitor log, identifying the company the represent and the time of entry. All employees upon leaving shall sign out indicating time of departure. I. CONSTRUCTION SCHEDULE The Contractor shall submit a detailed schedule (bar chart) for construction progress to the Purchasing Agent for review and approval prior to commencing work. The schedule shall show the complete sequence of construction by activity with anticipated beginning and ending dates. After commencement of work the Contractor shall continually update and revise the schedule and immediately notify the Purchasing Agent in writing of any delays. The Contractor shall submit an updated schedule with each application for payment. J. PROTECTIONS The Contractor shall provide temporary barricades and other forms of protection as required to protect center personnel and students from injury. The contractor shall protect from damage existing facilities and finishes to remain, and promptly repair damages at no additional cost to the contract. The Contractor shall receive and store all materials, equipment, and other items to be used in accomplishing the work and to protect them against loss or damage from every source. The Contractor shall be responsible for all equipment and materials brought onto the center and shall replace damaged or stolen items at own expense. The Contractor shall report any loss of material or equipment (tools) immediately to center security. If circumstances warrant, security will conduct a search of the center. K. SUBMITTALS - Product data, Shop drawings, Samples The Contractor shall prepare a submittal check list of all items requiring the Center's approval and/or selection and submit it to the Purchasing Agent. The check list shall have space for, date submittal received, date submittal returned approved, date submittal returned not approved, date of resubmission. The Contractor shall submit to the Purchasing Agent for approval, two copies of product data sheets showing choices and options. Where several similar products and options are shown on the data sheets the Contractor shall clearly highlight the products and options being submitted for approval. The submittal shall include samples of specified materials showing a range of colors, patterns and textures for selection by the center. The Purchasing Agent shall review each submittal and respond in writing, indicating colors selected and product approval. The contractor shall also submit any shop drawings requiring review and approval. Allow 3 business days for center review of submissions. Approval of the submittals by the center shall not limit, nor relieve the Contractor of responsibility to provide specified quality materials and methods in performance of the work of the contract. L. TEMPORARY FACILITIES Mobile storage/office facilities shall be at the expense of the contractor. Coordinate with the center for location of a staging area and vehicle parking. Electricity will be made available by the center. Connection to existing power shall be by the contractor. Phone connection and service shall be at contractor's expense. M. CUTTING AND PATCHING The contractor shall be responsible for all cutting of existing work required to accommodate the installation of new work, and patching of finishes to match adjacent finishes remaining. The Contractor shall patch areas exposed to view, in a manner resulting in visual qualities that do not show evidence of the patch work. Visually unsatisfactory work as judged solely by the Center shall be replaced by the Contractor at the Contractors expense. Make cuts using methods least likely to damage adjacent facilities and elements to be retained. N. COLLECTION AND DISPOSAL OF WASTE The contractor shall, at the end of each work day, store properly and secure all hazardous and potentially dangerous material substances used in the work. Construction debris shall be collected daily by the contractor and disposed of, off center, in accordance with applicable law. The contractor shall be responsible for all fees, permits, etc., required for construction waste management and disposal. Copies of Certificates of Disposal for hazardous materials must be submitted to the Purchasing Agent. O. CHANGES IN THE WORK Minor changes in the work that, the Center or Contractor may recommend and, do not involve adjustment to the Contract Sum or the Performance time shall be made through written instruction from the Purchasing Agent authorizing the Contractor to proceed with the agreed upon changes. Changes in the work that do involve adjustment to the Contract Sum or the Performance time or both are Contract modifications that shall be executed as Change Orders on AIA Document G 701 or equivalent. Reference the Federal Acquisition Regulation (FAR) 52.243-4. For Contract modifications requested by the Center or initiated by the Contractor, the Contractor shall prepare and submit for approval, a change order proposal. Procedures for preparing and processing change order proposals shall be as follows: •• The proposal shall include a statement outlining the reason for the change, i.e. unforeseen conditions, product substitution, value engineering, etc. and complete description of the change. •• Include a list of quantities of products to be purchased and unit costs. Indicate the amount of trade discounts. •• If product or system substitution is being requested provide complete supporting data from both specified product/system and proposed substitute product/system for evaluation by the Center. Provide additional information to substantiate products and/or systems are equal or better with respect to this project application. •• Include a statement indicating the effect the proposed change will have on the Contract performance time (number of days added or deleted) and construction schedule. •• Show the total cost of the proposed change. In such change order proposals that increase the contract. •• When the Center and the Contractor both agree to the change request as proposed or as modified, the Purchasing Agent will issue a Contract modification, Change Order for the Contractor's signature and the Center Director's signature, approving the change. The Contractor is responsible to keep the work progressing on schedule. Requests from the Center for changes in the work and change order proposals are for information only and shall not be considered as instruction to stop work in progress, or to commence work on the requested change. P. PROJECT COORDINATION (WEEKLY MEETINGS) The Contractor and Center shall hold weekly meetings to facilitate coordination of project activities that may effect Center operations and project completion, discuss administrative issues, submittals, change order requests and proposals, resolve conflicts, update schedules, review progress and payment applications. The meetings will provide a forum for effective and clear communication between the Contractor and the Center during construction and facilitate administration of the Contract. Q. APPLICATION FOR PAYMENT (PROGRESS PAYMENTS TO CONTRACTOR) Submit applications to the center as the work proceeds or at intervals of percentage completion. •• Schedule of Values · Prior to the first application for payment, the Contractor shall submit the Schedule of Values as a basis for the Center to compute the value of the work completed to date for approval of the progress payment. · The Schedule shall list the installed value of the component parts of the construction work in sufficient detail for the Purchasing Agent to accurately verify the value of work in place. · For payment requests that include stored materials, breakdown the value into: 1. The cost of the materials, delivered and off loaded, with taxes paid (if any), and; 2. The total installed value. To receive payment for stored materials, materials must be stored in a bonded warehouse. Contractor shall provide purchase orders and bonded storage documentation with payment request. · Break down the value of major component parts into sub-values for each major product or construction trade operation. The center shall retain ten percent (10 %) of the requested progress payment amount until substantial completion and acceptance of the installed work. When the work is substantially completed, the center shall retain only an amount considered adequate to complete or correct any unfinished and/or unacceptable items. R. PROJECT CLOSE-OUT Substantial Completion: •• When the work is substantially complete, the Contractor shall notify the center in writing requesting inspection of the work (refer to sample letter of contractor notice of substantial completion). A substantial completion inspection shall be conducted by the center representatives with the Contractor present to develop a punch list of items that do not meet the intent of the scope of work or are not acceptable workmanship. The Contractor shall repair his work as required until acceptable to the Center. The Center will take occupancy of the completed work and a Substantial Completion Certificate will be issued the Contractor. The date of substantial completion establishes the date of commencement of all manufacturer's product warranties and guarantees, including but not limited to the Contractor's guarantee of workmanship for the period established by the state's statute of limitations. •• The contractor shall provide to the center at substantial completion, two complete operation and maintenance manuals including manufacturer's product data sheets for all equipment supplied, detailed parts lists and equipment maintenance requirements. In addition, submit certificates of manufacturer's warranties and guarantees for all equipment, materials and work. Final Acceptance: The Contractor shall provide the Center with the following prior to completion of the project and application for final payment: •• The contractor shall submit a notice of final completion (refer to attached sample letter) and the final pay request indicating 100% completion of all work, including all inspection punch list items along with the following releases: S. FORMS AND LETTERS The following forms are attached for reference or use. •• Sample, Notice of Substantial Completion •• Certificate of Substantial Completion •• Sample, Notice of Final Completion •• Sample Consent of Surety to Final Payment SAMPLE NOTICE OF SUBSTANTIAL COMPLETION TO: Horizons Youth Services ATTN: Ralph Hill, Purchasing Agent 3875 State Route Highway 181 North Greenville, KY. 42345 Subject: Door & Window Repalcement Contract or PO# ARRA Project #1 Muhlenberg Career Development Center Dear Sir: This letter is to inform you that work on the subject is substantially complete. Attached is a list of all outstanding work to be completed and the estimated date of completion for your review. We respectfully request, prior to the issuing of the Certificate of Substantial Completion, that a walk-through inspection be conducted by your center representatives. If you have any questions or comments, please feel free to contact me. Sincerely, (Contractor Signature) (Date) CERTIFICATE OF SUBSTANTIAL COMPLETION SAMPLE To: Horizons Youth Services Attn: Ralph Hill, Purchasing Agent 3875 State Route Highway 181 North Greenville, KY. 42345 Re: ARRA Project #1 DEFINITION OF SUBSTANTIAL COMPLETION Substantial completion is the stage in construction when the project, or a designated portion thereof, has reached a state of completion which would permit the occupancy and/or use of the facility by the Department of Labor for its intended function. Unless otherwise indicated, the Date of Substantial Completion, as acknowledged by the Government, is also the date of commencement of all warranties and guarantees required by the contract documents. PROJECT OR DESIGNATED PORTION THEREOF INCLUDED: CERTIFICATIONSConstruction Contractor I,, of the corporation known as, do hereby certify that the work on the above-referenced project is substantially complete and in accordance with the contract documents. I hereby acknowledge receipt of and agreement with the attached punch list, and further agree to the completion or correction of all work on said punch list within calendar days from the Date of Substantial Completion. I realize that failure to complete or correct all items within the period stipulated may be a breach of contract and will be subject to the sanction of the contract. For all items on the punch list, associated warranties and guarantees will not start until work is completed. Signature Name and Official Title Date Center Representative I, do hereby acknowledge the work on the above referenced project as being substantially complete on behalf of the U.S. Department of Labor, and that the Government will assume full possession and responsibility thereof at, local time, on... Signature Name and Official Title Date SAMPLE NOTICE OF FINAL COMPLETION (To be typed on contractor's letterhead) To: Horizons Youth Services Attn: Ralph Hill, Purchasing Agent 3875 State Route Highway 181 North Greenville, KY. 42345 Re: ARRA Project #1 Dear Sir: This letter is to inform you that we have completed all outstanding work as listed on the attachment to the Certificate of Substantial Completion, and all work within our contract. We respectfully request a walk-through inspection of the project by your center representative prior to the project closeout. If you have any questions concerning this, please feel free to contact me. Sincerely, (Contractor Signature) SECTION III. EXTENT OF WORK Building 1407: 69591: •· Remove one (1) metal door in the recreation pool table room that leads to the computer room. •· Install one (1) 3'-0" by 7'-0", Interior solid wood doors with vision panel that has a 1.5 to 2.0 hour fire rating on existing frames with new hardware. •· Install new self closing hinge system and door hardware. •· Paint may be pre-finished to match existing doors and frame colors. •· If not pre-finished; Paint new doors and frames to match color of existing doors and frames. Frame will receive one primer coat and two (2) coats of epoxy enamel paint. •· Contractor is responsible for the removal of doors, frame, and construction debris from the Center and proper disposition of these items in a land fill or recycling whenever possible. Building 1412: 69598: •· Remove one aluminum storefront type double door unit and frame in the café queue area. •· Install one pair of 3'-0" by 7'-0"Exterior metal doors that have a 1.5 to 2.0 hour fire rating and frame with steel metal storefront type door frame with removable intermediate mullion with panic hardware and closers. •· Install new self closing hinge system and door hardware on each new door •· Paint may be pre-finished to match existing door and frame color If not pre-finished; Paint new door frame to match color of existing frame. Frame will receive one primer coat and two (2) coats of epoxy enamel paint. •· Contractor is responsible for the removal of doors, frame, and construction debris from the Center and proper disposition of these items in a land fill or recycling whenever possible. 69601: •· Remove 3 metal exit doors and frames in the café and culinary arts area. •· Install three (3) 3'-0" by 7'-0", Exterior metal doors that have a 1.5 to 2.0 hour fire rating and frames with exit hardware. •· Install new self closing hinge system and door hardware on each new door. •· Paint may be pre-finished to match existing doors and frame colors. •· If not pre-finished; Paint new doors and frames to match color of existing doors and frames. Frame will receive one primer coat and two (2) coats of epoxy enamel paint. •· Contractor is responsible for the removal of doors, frame, and construction debris from the Center and proper disposition of these items in a land fill or recycling whenever possible. Building 1413: 69603: •· Remove two (2) metal roll-up doors and frames in the warehouse and maintenance area. •· Install one (1) 8'-0" by 10-0"and one (1) 9'-0" x 10'- 0" insulated metal roll-up doors that have a 1.5 to 2.0 hour fire rating and frames with exit hardware. •· Install with new track hardware and electrical closing system and door hardware on each new door. •· Paint may be pre-finished to match existing doors and frame colors. •· Use pre-finished material; Paint on doors and frames to match color of existing doors and frames. Doors and Frames in areas required will have one primer coat and two (2) coats of epoxy enamel paint •· Contractor is responsible for the removal of doors, frames, and construction debris from the Center and proper disposition of these items in a land fill or recycling whenever possible. Building 1436: 69608: •· Remove existing windows and trim in rooms A1 and B5 •· Install new energy star rated, double hung, windows that are made with the same type and style of materials that presently exists on the dorm. •· Properly insulate/ seal all areas and wall penetrations interior and exterior including but not limited to windows and other fixtures, after the windows and trim have been installed. •· Contractor is responsible for the removal of the existing windows and construction debris from the Center and proper disposition of these items in a land fill or recycling facilities. •· Touch up painting required to return the walls to the existing condition prior to the removal of the windows is the responsibility of the Contractor. •· Low VOC emitting paints, stains, enamels and sealers will be used to finish the interior and exterior the building. Contractor will provide one gallon of each stain, enamel, sealer to the Maintenance Department along with any tinting formulas used and the vendor where the paints/stains were mixed. In addition Contractors will: •· Contractor is responsible for any storage requirements for materials during the project. •· Touch up painting required to return the walls to the existing condition prior to the removal of the frame is the responsibility of the Contractor. •· Low VOC emitting paints, stains, enamels and sealers will be used to finish the frame and doors. •· Contractor will provide one gallon of enamel, sealer to the Maintenance Department along with any tinting formulas used and the vendor where the paints/stains were mixed. •· Contractor will provide warranty for work and materials provide for the project. The Buy American Act Provisions follow: [Federal Register: March 31, 2009 (Volume 74, Number 60)] [Rules and Regulations] [Page 14623-14633] From the Federal Register Online via GPO Access [wais.access.gpo.gov] [DOCID:fr31mr09-18] ----------------------------------------------------------------------- DEPARTMENT OF DEFENSE GENERAL SERVICES ADMINISTRATION NATIONAL AERONAUTICS AND SPACE ADMINISTRATION 48 CFR Parts 1, 5, 25, and 52 [FAC 2005-32; FAR Case 2009-008; Item I; Docket 2009-0008, Sequence 1] RIN 9000-AL22 Federal Acquisition Regulation; FAR Case 2009-008, American Recovery and Reinvestment Act of 2009 (the Recovery Act)--Buy American Requirements for Construction Material AGENCY: Department of Defense (DoD), General Services Administration (GSA), and National Aeronautics and Space Administration (NASA). ACTION: Interim rule with request for comments. ----------------------------------------------------------------------- SUMMARY: The Civilian Agency Acquisition Council and the Defense Acquisition Regulations Council (Councils) have agreed on an interim rule amending the Federal Acquisition Regulation (FAR) to implement the American Recovery and Reinvestment Act of 2009 (Pub. L. 111-5) (Recovery Act) with respect to the Buy American provision, section 1605 in Division A. This rule does not cover procurements funded with Federal financial assistance such as Federal grants. Additional guidance will be provided by the Office of Management and Budget with respect to the application of section 1605 to procurements funded with Federal financial assistance. DATES: Effective Date: March 31, 2009. Applicability Date: The rule applies to solicitations issued and contracts awarded on or after the effective date of this rule. Contracting officers shall modify, on a bilateral basis, in accordance with FAR 1.108(d)(3), existing contracts to include the FAR clauses for future orders, if Recovery Act funds will be used. In the event that a contractor refuses to accept such a modification, the contractor will not be eligible for receipt of Recovery Act funds. Comment Date: Interested parties should submit written comments to the FAR Secretariat on or before June 1, 2009 to be considered in the formulation of a final rule. ADDRESSES: Submit comments identified by FAC 2005-32, FAR case 2009- 008, by any of the following methods: [[Page 14624]] <bullet> Regulations.gov: <A HREF="http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://www.regulations.gov">http://www.regulations.gov</A>. Submit comments via the Federal eRulemaking portal by inputting ``FAR Case 2009-008'' under the heading ``Comment or Submission''. Select the link ``Send a Comment or Submission'' that corresponds with FAR Case 2009- 008. Follow the instructions provided to complete the ``Public Comment and Submission Form''. Please include your name, company name (if any), and ``FAR Case 2009-008'' on your attached document. <bullet> Fax: 202-501-4067. <bullet> Mail: General Services Administration, FAR Secretariat (VPR), 1800 F Street, NW., Room 4041, Attn: Hada Flowers, Washington, DC 20405. Instructions: Please submit comments only and cite FAC 2005-32, FAR case 2009-008, in all correspondence related to this case. All comments received will be posted without change to <A HREF="http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://www.regulations.gov">http://www.regulations.gov</A>, including any personal and/or business confidential information provided. FOR FURTHER INFORMATION CONTACT: Ms. Meredith Murphy, Procurement Analyst, at (202) 208-6925 for clarification of content. Please cite FAC 2005-32, FAR case 2009-008. For information pertaining to status or publication schedules, contact the FAR Secretariat at (202) 501-4755. SUPPLEMENTARY INFORMATION: A. Background This interim rule implements the Recovery Act with respect to the unique Buy American provision, section 1605 of the Recovery Act, by adding a new Subpart 25.6, entitled ``American Recovery and Reinvestment Act--Buy American Act--Construction Materials,'' and adding new provisions and clauses at Part 52, with conforming changes to Subparts 1.1, 5.2, 25.0, 25.2, and 25.11. On February 17, 2009, the President signed Public Law 111-5, the American Recovery and Reinvestment Act of 2009, which includes a number of provisions to be implemented in Federal Government contracts. Among these provisions is section 1605, entitled ``Buy American.'' It prohibits the use of funds appropriated or otherwise made available by the Act for any project for the construction, alteration, maintenance, or repair of a public building or public work unless all of the iron, steel, and manufactured goods used in the project are produced in the United States. The law requires that this prohibition be applied in a manner consistent with U.S. obligations under international agreements, and it provides for waiver under three circumstances: 1. Iron, steel, or manufactured goods are not produced in the United States in sufficient and reasonably available quantities and of a satisfactory quality; 2. Inclusion of iron, steel, or manufactured goods produced in the United States will increase the cost of the contract by more than 25 percent; or 3. Applying the domestic preference would be inconsistent with the public interest. The implementation of section 1605 is expected to stimulate the economy by increasing and maintaining jobs in the United States in the steel, iron, and manufactured construction materials industries and providing new opportunities to construction firms to win contracts for construction and public works projects. B. Discussion Because of the need to appropriately segregate the unique Buy- American provisions of the Recovery Act from the requirements of the Buy American Act and the Trade Agreements Act, the Councils have decided to include them in a separate subpart of FAR Part 25. Subpart 25.6, currently reserved, will be entitled ``American Recovery and Reinvestment Act--Buy American Act--Construction Materials.'' A reference to Subpart 25.6 was added to the ``Scope'' section of Subpart 25.2, Buy American Act--Construction Materials. Subpart 25.6 includes a policy statement at 25.602 that repeats the prohibition against using funds appropriated by the Recovery Act for U.S. construction projects to purchase iron, steel, or other manufactured goods that were not produced in the U.S. It also notes that unmanufactured construction materials remain covered by the provisions of the Buy American Act. The exceptions to this policy (see Background section above) are similar to those for the Buy American Act, but the Recovery Act requires publication in the Federal Register of the detailed written justification that the agency used to make an exception to the statute. The Councils welcome comments on additional steps that may enhance transparency consistent with the goals of the Recovery Act. In order to enable implementation of the policy, the interim rule includes definitions of ``steel,'' ``manufactured construction material,'' ``unmanufactured construction material,'' ``domestic construction material,'' and ``foreign construction material.'' These definitions are drawn from existing Federal domestic-sourcing laws and the longstanding interpretations that have evolved from them. It also includes a cross reference to the definition of ``public work'' at FAR 22.401, which defines ``public building or public work'' to mean ``uilding or work, the construction, prosecution, completion, or repair of which * * * is carried on directly by authority of, or with funds of, a Federal agency to serve the interest of the general public regardless of whether title thereof is in a Federal agency.'' Because section 1605 does not specify a requirement that significantly all the components of construction material must also be domestic, as does the Buy American Act, the definition of domestic construction material under this interim rule does not include a requirement relating to the origin of the components of domestic manufactured construction material. Unmanufactured construction material is not specifically addressed in section 1605 of the Recovery Act. However, the Recovery Act's purpose of creating jobs and stimulating domestic demand is well served by applying the Buy American Act to unmanufactured construction material. The rules for preaward determination of the inapplicability of section 1605 and the Buy American Act are at FAR 25.604. Section 25.605 addresses the evaluation of offers containing foreign construction material based on an approved exception for unreasonable cost. If the contracting officer determines that an exception based on unreasonable cost of domestic construction material applies, the contracting officer must evaluate the offer by adding to the offered price-- (1) 25 percent of the offered price, if foreign iron, steel, or other manufactured goods are used as construction material based on unreasonable cost of comparable manufactured domestic construction material; and (2) 6 percent of the value of foreign unmanufactured construction material included in the offer based on unreasonable cost of comparable domestic unmanufactured construction material. The text of Subpart 25.6 makes it clear that a determination to waive the applicability of section 1605 should be made prior to award. However, section 25.606 recognizes certain limited circumstances in which a postaward waiver could be made, but only with adequate consideration from the contractor. A contractor's noncompliance with section 1605 is addressed at FAR 25.607. Prescriptions for the use of all of the solicitation provisions and contract clauses applicable to FAR Part 25 are [[Page 14625]] included in a single subpart, 25.11. The Councils have modified section 25.1102, entitled ``Acquisition of Construction,'' to add a new paragraph that substitutes four new provisions and clauses (with appropriate alternates), to be used when contracting with funds appropriated by the Recovery Act, for the four clauses otherwise used in construction contracts to implement the Buy American Act and U.S. obligations under applicable trade agreements. Specifically, when using Recovery Act appropriated funds, contracting officers will use-- <bullet> 52.225-21, Required Use of American Iron, Steel, and Manufactured Goods--Buy American Act--Construction Materials, instead of 52.225-9, Buy American Act--Construction Materials; <bullet> 52.225-22, Notice of Required Use of American Iron, Steel, and Other Manufactured Goods--Buy American Act--Construction Materials, instead of 52.225-10, Notice of Buy American Act Requirement-- Construction Materials; <bullet> 52.225-23, Required Use of American Iron, Steel, and Other Manufactured Goods and Buy American Act--Construction Materials Under Trade Agreements, instead of 52.225-11, Buy American Act--Construction Materials under Trade Agreements; and <bullet> 52.225-24, Notice of Required Use of American Iron, Steel, and Other Manufactured Goods and Buy American Act--Construction Materials under Trade Agreements, instead of 52.225-12, Notice of Buy American Act Requirement--Construction Materials under Trade Agreements. The clauses are unique in that, for Recovery Act-funded construction projects, the 25 percent price adjustment factor for non- U.S. iron, steel, and other foreign manufactured construction material excepted from the section 1605 requirement on the basis of unreasonable cost is applied to the entire price of the project, not only to the cost of the foreign materials. The 6 percent adjustment for the Buy American Act is retained and applied to the cost of foreign unmanufactured goods excepted from the requirements of the Buy American Act on the basis of unreasonable cost. Given the applicability of the Recovery Act to iron, steel, and manufactured goods, the definition of ``component'' is unnecessary in these clauses, because the definition of domestic construction material no longer includes a requirement relating to the origin of components. However, if trade agreements apply to the acquisition, the use of the provision and clause 52.225-23 and 52.225-24, respectively, ensures that eligible construction material from designated countries is treated in accordance with Subpart 25.4. No evaluation factor is applied to offers on the basis of using eligible construction material. This provision and clause retain the same basic processes that are used in the standard construction clauses, except for the specific changes that have been addressed relating to new requirements of section 1605 of the Recovery Act. In the Recovery Act conference report, Congress expressed its intent that least developed countries be excepted from section 1605 and that they retain their status as designated countries. However, with respect to Caribbean Basin countries, Congress did not express a similar intent. Therefore, Caribbean Basin countries are not included as designated countries with respect to the Recovery Act. C. Applicability to Contracts at or Below the Simplified Acquisition Threshold Section 4101 of Public Law 103-355, the Federal Acquisition Streamlining Act (FASA) (41 U.S.C. 429), governs the applicability of laws to contracts or subcontracts in amounts not greater than the simplified acquisition threshold. It is intended to limit the applicability of laws to them. FASA provides that if a provision of law contains criminal or civil penalties, or if the Federal Acquisition Regulatory Council makes a written determination that it is not in the best interest of the Federal Government to exempt contracts or subcontracts at or below the simplified acquisition threshold, the law will apply to them. Therefore, given section 1605 of the Recovery Act, which establishes Buy American requirements for projects funded by the Recovery Act, the FAR Council has determined that this rule should apply to contracts or subcontracts at or below the simplified acquisition threshold, as defined at 2.101. This is a significant regulatory action and, therefore, was subject to Office of Management and Budget (OMB) review under Section 6 of Executive Order 12866, Regulatory Planning and Review, dated September 30, 1993. This rule is not a major rule under 5 U.S.C. 804. D. Regulatory Flexibility Act The Councils do not expect this interim rule to have a significant economic impact on a substantial number of small entities within the meaning of the Regulatory Flexibility Act, 5 U.S.C. 601, et seq., for the following reasons. This interim rule will only impact an offeror that wants to use non-U.S. iron, steel, and other manufactured goods in a construction project in the United States. The Councils believe that there are adequate domestic sources for these materials, and the Office of Management and Budget (OMB) guidance M-09-10 issued February 18, 2009, entitled ``Initial Implementing Guidance for the American Recovery and Reinvestment Act of 2009,'' provides a strong preference for using small businesses for Recovery Act projects wherever possible. Therefore, an Initial Regulatory Flexibility Analysis has not been performed. The Councils will consider comments from small entities concerning the affected FAR Parts 1, 5, 25, and 52 in accordance with 5 U.S.C. 610. Interested parties must submit such comments separately and should cite 5 U.S.C. 601, et seq. (FAC 2005-32, FAR case 2009-008), in all correspondence. E. Paperwork Reduction Act The Paperwork Reduction Act does apply; however, these changes to the FAR do not impose additional information collection requirements to the paperwork burden previously approved under OMB Control Number 9000- 0141. However, the information collection requirements imposed by the provisions 52.225-22 and 52.225-24 are currently covered by the approved information collection requirements for provisions 52.225-9 and 52.225-11 (OMB Control number 9000-0141, entitled Buy American Act--Construction--FAR Sections Affected: Subpart 25.2; 52.225-9; and 52.225-11). While the Councils believe no changes will be needed to the collection due to the interim regulation, comments are welcome during the 60 day comment period with regard to the data elements, the burden, or any other part of the collection. F. Determination To Issue an Interim Rule A determination has been made under the authority of the Secretary of Defense (DoD), the Administrator of General Services (GSA), and the Administrator of the National Aeronautics and Space Administration (NASA) that urgent and compelling reasons exist to promulgate this interim rule without prior opportunity for public comment. This action is necessary because the American Recovery and Reinvestment Act of 2009 became effective upon enactment, and contracts using funds appropriated by the Recovery Act will soon be ready to award. However, pursuant to Public Law 98-577 and FAR 1.501, the Councils will consider public comments received in response to this [[Page 14626]] interim rule in the formation of the final rule. List of Subjects in 48 CFR Parts 1, 5, 25, and 52 Government procurement. Dated: March 25, 2009. Al Matera, Director, Office of Acquisition Policy. 0 Therefore, DoD, GSA, and NASA amend 48 CFR parts 1, 5, 25, and 52 as set forth below: 0 1. The authority citation for 48 CFR parts 1, 5, 25, and 52 continues to read as follows: Authority: 40 U.S.C. 121(c); 10 U.S.C. chapter 137; and 42 U.S.C. 2473(c). PART 1--FEDERAL ACQUISITION REGULATIONS SYSTEM 1.106 [Amended] 0 2. Amend section 1.106, in the table following the introductory paragraph, by adding, in numerical sequence, FAR segments 52.225-21 and 52.225-23, and their corresponding OMB Control Number 9000-0141. PART 5--PUBLICIZING CONTRACT ACTIONS 0 3. Amend section 5.207 by revising paragraph (c)(13)(iii) to read as follows: 5.207 Preparation and transmittal of synopses. * * * * * (c) * * * (13) * * * (iii) If the solicitation will include the FAR clause at 52.225-11, Buy American Act--Construction Materials under Trade Agreements, 52.225-23, Required Use of American Iron, Steel, and Other Manufactured Goods--Buy American Act--Construction Materials under Trade Agreements, or an equivalent agency clause, insert the following notice in the synopsis: ``One or more of the items under this acquisition is subject to the World Trade Organization Government Procurement Agreement and Free Trade Agreements.'' * * * * * PART 25--FOREIGN ACQUISITION 0 4. Amend section 25.001 by revising paragraph (c)(1) and adding a new paragraph (c)(4) to read as follows: 25.001 General. * * * * * (c) * * * (1) The Buy American Act uses a two-part test to define a ``domestic end product'' or ``domestic construction material'' (manufactured in the United States and a formula based on cost of domestic components). The component test has been waived for acquisition of commercially available off-the-shelf items. * * * * * (4) When using funds appropriated under the American Recovery and Reinvestment Act of 2009 (Pub. L. 111-5), the definition of ``domestic manufactured construction material'' requires manufacture in the United States but does not include a requirement with regard to the origin of the components. 25.002 [Amended] 0 5. Amend the table in section 25.002, by removing from the sixth row ``[Reserved]'' and adding ``American Recovery and Reinvestment Act--Buy American Act--Construction Materials'' in its place, and in the fifth column adding ``X''. 0 6. Add Subpart 25.6 to read as follows: Subpart 25.6--American Recovery and Reinvestment Act--Buy American Act--Construction Materials Sec. 25.600 Scope of subpart. 25.601 Definitions. 25.602 Policy. 25.603 Exceptions. 25.604 Preaward determination concerning the inapplicability of section 1605 of the Recovery Act or the Buy American Act. 25.605 Evaluating offers of foreign construction material. 25.606 Postaward determinations. 25.607 Noncompliance. Subpart 25.6--American Recovery and Reinvestment Act--Buy American Act--Construction Materials 25.600 Scope of subpart. This subpart implements section 1605 in Division A of the American Recovery and Reinvestment Act of 2009 (Pub. L. 111-5) (Recovery Act) and the Buy American Act. It applies to construction projects that use funds appropriated or otherwise provided by the Recovery Act. 25.601 Definitions. As used in this subpart-- Domestic construction material means-- (1) An unmanufactured construction material mined or produced in the United States; or (2) A construction material manufactured in the United States. Foreign construction material means a construction material other than a domestic construction material. Manufactured construction material means any construction material that is not unmanufactured construction material. Recovery Act designated country means a World Trade Organization Government Procurement Agreement country, a Free Trade Agreement country, or a least developed country. Steel means an alloy that includes at least 50 percent iron, between.02 and 2 percent carbon, and may include other elements. 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. 25.602 Policy. Except as provided in 25.603-- (a) None of the funds appropriated or otherwise made available by the Recovery Act may be used for a project for the construction, alteration, maintenance, or repair of a public building or public work (as defined at 22.401) unless-- (1) The public building or public work is located in the United States; and (2) All of the iron, steel, and other manufactured goods used as construction material in the project are produced or manufactured in the United States. (i) Production in the United States of the iron or steel used as construction material requires that all manufacturing processes must take place in the United States, except metallurgical processes involving refinement of steel additives. These requirements do not apply to steel or iron used as components or subcomponents of other manufactured construction material. (ii) There is no requirement with regard to the origin of components or subcomponents in other manufactured construction material, as long as the manufacture of the construction material occurs in the United States. (b) Use only domestic unmanufactured construction material, as required by the Buy American Act. 25.603 Exceptions. (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: [[Page 14627]] (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). T he 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 $7,443,000 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. 25.604 Preaward determination concerning the inapplicability of section 1605 of the Recovery Act or the Buy American Act. (a) For any acquisition, an offeror may request from the contracting officer a determination concerning the inapplicability of section 1605 of the Recovery Act or the Buy American Act for specifically identified construction materials. The time for submitting the request is specified in the solicitation in paragraph (b) of either 52.225-22 or 52.225-24, whichever applies. The information and supporting data that must be included in the request are also specified in the solicitation in paragraphs (c) and (d) of either 52.225-21 or 52.225-23, whichever applies. (b) Before award, the contracting officer must evaluate all requests based on the information provided and may supplement this information with other readily available information. (c) Determination based on unreasonable cost of domestic construction material. (1) Iron, steel, and other manufactured construction material. The contracting officer must compare the offered price of the contract using foreign manufactured construction material to the estimated price if all domestic manufactured construction material were used. If use of domestic manufactured construction material would increase the overall offered price of the contract by more than 25 percent, then the contracting officer shall determine that the cost of the domestic manufactured construction material is unreasonable. (2) Unmanufactured construction material. The contracting officer must compare the cost of each foreign unmanufactured construction material to the cost of domestic unmanufactured construction material. If the cost of the domestic unmanufactured construction material exceeds the cost of the foreign unmanufactured construction material by more than 6 percent, then the contracting officer shall determine that the cost of the unmanufactured construction material is unreasonable. 25.605 Evaluating offers of foreign construction material. (a) If the contracting officer has determined that an exception applies because the cost of certain domestic construction material is unreasonable, in accordance with section 25.604, then the contracting officer shall apply evaluation factors to the offer incorporating the use of such foreign construction material as follows: (1) Use an evaluation factor of 25 percent, applied to the total offered price of the contract, if foreign iron, steel, or other manufactured goods are incorporated in the offer as construction material based on an exception for unreasonable cost requested by the offeror. (2) In addition, use an evaluation factor of 6 percent applied to the cost of foreign unmanufactured construction material incorporated in the offer based on an exception for unreasonable cost requested by the offeror. (3) Total evaluated price = offered price + (.25 x offered price, if (a)(1) applies) + (.06 x cost of foreign unmanufactured construction material, if (a)(2) applies). (b) If two or more offers are equal in price, the contracting officer must give preference to an offer that does not include foreign construction material excepted at the request of the offeror on the basis of unreasonable cost. (c) Offerors also may submit alternate offers based on use of equivalent domestic construction material to avoid possible rejection of the entire offer if the Government determines that an exception permitting use of a particular foreign construction material does not apply. (d) If the contracting officer awards a contract to an offeror that proposed foreign construction material not listed in the applicable clause in the solicitation (paragraph (b)(3) of 52.225-21, or paragraph (b)(3) of 52.225-23), the contracting officer must add the excepted materials to the list in the contract clause. 25.606 Postaward determinations. (a) If a contractor requests a determination regarding the inapplicability of section 1605 of the Recovery Act or the Buy American Act after contract award, the contractor must explain why it could not request the determination before contract award or why the need for such determination otherwise was not reasonably foreseeable. If the contracting officer concludes that the contractor should have made the request before contract award, the contracting officer may deny the request. (b) The contracting officer must base evaluation of any request for a determination regarding the inapplicability of section 1605 of the Recovery Act or the Buy American Act made after contract award on information required by paragraphs (c) and (d) of the applicable clause at 52.225-21 or 52.225-23 and/or other readily available information. (c) If a determination, under 25.603(a), is made after contract award that an exception to section 1605 of the Recovery Act or to the Buy American Act applies, the contracting officer must negotiate adequate consideration and modify the contract to allow use of the foreign construction material. When the basis for the exception is the unreasonable cost of a domestic construction material, adequate [[Page 14628]] consideration is at least the differential established in 25.605(a). 25.607 Noncompliance. The contracting officer must-- (a) Review allegations of violations of section 1605 of the Recovery Act or Buy American Act; (b) Unless fraud is suspected, notify the contractor of the apparent unauthorized use of foreign construction material and request a reply, to include proposed corrective action; and (c) If the review reveals that a contractor or subcontractor has used foreign construction material without authorization, take appropriate action, including one or more of the following: (1) Process a determination concerning the inapplicability of section 1605 of the Recovery Act or the Buy American Act in accordance with 25.606. (2) Consider requiring the removal and replacement of the unauthorized foreign construction material. (3) If removal and replacement of foreign construction material incorporated in a building or work would be impracticable, cause undue delay, or otherwise be detrimental to the interests of the Government, the contracting officer may determine in writing that the foreign construction material need not be removed and replaced. A determination to retain foreign construction material does not constitute a determination that an exception to section 1605 of the Recovery Act or the Buy American Act applies, and this should be stated in the determination. Further, a determination to retain foreign construction material does not affect the Government's right to suspend or debar a contractor, subcontractor, or supplier for violation of section 1605 of the Recovery Act or the Buy American Act, or to exercise other contractual rights and remedies, such as reducing the contract price or terminating the contract for default. (4) If the noncompliance is sufficiently serious, consider exercising appropriate contractual remedies, such as terminating the contract for default. Also consider preparing and forwarding a report to the agency suspension or debarment official in accordance with Subpart 9.4. If the noncompliance appears to be fraudulent, refer the matter to other appropriate agency officials, such as the officer responsible for criminal investigation. 0 7. Amend section 25.1102 by adding an introductory paragraph; revising paragraph (c)(1); and adding paragraph (e) to read as follows: 25.1102 Acquisition of construction. When using funds other than those appropriated under the American Recovery and Reinvestment Act of 2009 (Pub. L. 111-5) (Recovery Act), follow the prescriptions in paragraphs (a) through (d) of this section. Otherwise, follow the prescription in paragraph (e). * * * * * (c) * * * (1) List in paragraph (b)(3) of the clause all foreign construction material excepted from the requirements of the Buy American Act, other than designated country construction material. * * * * * (e)(1) When using funds appropriated under the Recovery Act for construction, use provisions and clauses 52.225-21, 52.225-22, 52.225- 23, or 52.225-24 (with appropriate Alternates) in lieu of the provisions and clauses 52.225-9, 52.225-10, 52.225-11, or 52.225-12 (with appropriate Alternates), respectively, that would be applicable as prescribed in paragraphs (a) through (d) of this section if Recovery Act funds were not used. (2) When using clause 52.225-23, list foreign construction material in paragraph (b)(3) of the clause as follows: (i) Basic clause. List all foreign construction material excepted from the requirements of the Buy American Act, other than Recovery Act designated country construction material. (ii) Alternate I--List in paragraph (b)(3) of the clause all foreign construction material excepted from the requirements of the Buy American Act, unless the excepted foreign construction material is from a Recovery Act designated country other than Bahrain, Mexico, or Oman. PART 52--SOLICITATION PROVISIONS AND CONTRACT CLAUSES 0 8. Add section 52.225-21 through 52.225-24 to read as follows: 52.225-21 Required Use of American Iron, Steel, and Other Manufactured Goods--Buy American Act--Construction Materials. As prescribed in 25.1102(e), insert the following clause: Required Use of American Iron, Steel, and Manufactured Goods-Buy American Act--Construction Materials MAR 2009) (a) Definitions. As used in this clause-- 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. Domestic construction material means-- (1) An unmanufactured construction material mined or produced in the United States; or (2) A construction material manufactured in the United States. Foreign construction material means a construction material other than a domestic construction material. Manufactured construction material means any construction material that is not unmanufactured construction material. Steel means an alloy that includes at least 50 percent iron, between.02 and 2 percent carbon, and may include other elements. United States means the 50 States, the District of Columbia, and outlying areas. Unmanufactured construction material means raw material brought to the construction site for incorporation into the building or work that has not been-- (1) Processed into a specific form and shape; or (2) Combined with other raw material to create a material that has different properties than the properties of the individual raw materials. (b) Domestic preference. (1) This clause implements-- (i) Section 1605 of the American Recovery and Reinvestment Act of 2009 (Recovery Act) (Pub. L. 111-5), by requiring, unless an exception applies, that all iron, steel, and other manufactured goods used as construction material in the project are produced in the United States; and (ii) The Buy American Act (41 U.S.C. 10a-10d) by providing a preference for unmanufactured domestic construction material. (2) The Contractor shall use only domestic construction material in performing this contract, except as provided in paragraph (b)(3) and (b)(4) of this clause. (3) This requirement does not apply to the construction material or components listed by the Government as follows: [[Page 14629]] ----------------------------------------------------------------------- [Contracting Officer to list applicable excepted materials or indicate ``none''] (4) The Contracting Officer may add other foreign construction material to the list in paragraph (b)(3) of this clause if the Government determines that-- (i) The cost of domestic construction material would be unreasonable. (A) The cost of domestic iron, steel, or other manufactured goods used as construction material is unreasonable when the cumulative cost of such material will increase the cost of the contract by more than 25 percent; (B) The cost of unmanufactured construction material is unreasonable when the cost of such material exceeds the cost of foreign material by more than 6 percent; (ii) The construction material is not mined, produced, or manufactured in the United States in sufficient and reasonably available quantities and of a satisfactory quality; or (iii) The application of the restriction of section 1605 of the Recovery Act or the Buy American Act to a particular construction material would be inconsistent with the public interest. (c) Request for determination of inapplicability of Section 1605 of the Recovery Act or the Buy American Act. (1)(i) Any Contractor request to use foreign construction material in accordance with paragraph (b)(4) of this clause shall include adequate information for Government evaluation of the request, including-- (A) A description of the foreign and domestic construction materials; (B) Unit of measure; (C) Quantity; (D) Cost; (E) Time of delivery or availability; (F) Location of the construction project; (G) Name and address of the proposed supplier; and (H) A detailed justification of the reason for use of foreign construction materials cited in accordance with paragraph (b)(4) of this clause. (ii) A request based on unreasonable cost shall include a reasonable survey of the market and a completed cost comparison table in the format in paragraph (d) of this clause. (iii) The cost of construction material shall include all delivery costs to the construction site and any applicable duty. (iv) Any Contractor request for a determination submitted after contract award shall explain why the Contractor could not reasonably foresee the need for such determination and could not have requested the determination before contract award. If the Contractor does not submit a satisfactory explanation, the Contracting Officer need not make a determination. (2) If the Government determines after contract award that an exception to section 1605 of the Recovery Act or the Buy American Act 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 Act applies, use of foreign construction material is noncompliant with section 1605 of the American Recovery and Reinvestment Act or the Buy American Act. (d) Data. To permit evaluation of requests under paragraph (c) of this clause based on unreasonable cost, the Contractor shall include the following information and any applicable supporting data based on the survey of suppliers: Foreign and Domestic Construction Materials Cost Comparison ---------------------------------------------------------------------------------------------------------------- Cost (dollars) Construction material description Unit of measure Quantity * ---------------------------------------------------------------------------------------------------------------- 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 reponse; if oral, attach summary.] [Include other applicable supportinginformation.] *Include all delivery costs to the construction site.] (End of clause) 52.225-22 Notice of Required Use of American Iron, Steel, and Other Manufactured Goods--Buy American Act--Construction Materials. As prescribed in 25.1102(e), insert the following provision: NOTICE OF REQUIRED USE OF AMERICAN IRON, STEEL, AND OTHER MANUFACTURED GOODS--BUY AMERICAN ACT--CONSTRUCTION MATERIALS (MAR 2009) (a) Definitions. ``Construction material,'' ``domestic construction material,'' ``foreign construction material,'' ``manufactured construction material,'' ``steel,'' and ``unmanufactured construction material,'' as used in this provision, are defined in the clause of this solicitation entitled ``Required Use of Iron, Steel, and Other Manufactured Goods--Buy American Act--Construction Materials'' (Federal Acquisition Regulation (FAR) clause 52.225-21). (b) Requests for determinations of inapplicability. An offeror requesting a determination regarding the inapplicability of section 1605 of the American Recovery and Reinvestment Act of 2009 (Pub. L. 111-5) (Recovery Act) or the Buy American Act should submit the request to the Contracting Officer in time to allow a determination before submission of offers. The offeror shall include the information and applicable supporting data required by paragraphs (c) and (d) of the clause at FAR 52.225-21 in the request. If an offeror has not requested a determination regarding the inapplicability of 1605 of the Recovery Act or the Buy American Act before submitting its offer, or has not received a response to a previous request, the offeror shall include the information and supporting data in the offer. (c) Evaluation of offers. (1) If the Government determines that an exception based on unreasonable cost of domestic construction material applies, the Government will evaluate an offer [[Page 14630]] requesting exception to the requirements of section 1605 of the Recovery Act or the Buy American Act by adding to the offered price of the contract-- (i) 25 percent of the offered price of the contract, if foreign iron, steel, or other manufactured goods are used as construction material based on unreasonable cost of comparable manufactured domestic construction material; and (ii) 6 percent of the cost of foreign unmanufactured construction material included in the offer based on unreasonable cost of comparable domestic unmanufactured construction material. (2) If two or more offers are equal in price, the Contracting Officer will give preference to an offer that does not include foreign construction material excepted at the request of the offeror on the basis of unreasonable cost. (d) Alternate offers. (1) When an offer includes foreign construction material not listed by the Government in this solicitation in paragraph (b)(2) of the clause at FAR 52.225-21, the offeror also may submit an alternate offer based on use of equivalent domestic construction material. (2) If an alternate offer is submitted, the offeror shall submit a separate Standard Form 1442 for the alternate offer and a separate cost comparison table prepared in accordance with paragraphs (c) and (d) of the clause at FAR 52.225-21 for the offer that is based on the use of any foreign construction material for which the Government has not yet determined an exception applies. (3) If the Government determines that a particular exception requested in accordance with paragraph (c) of the clause at FAR 52.225- 21 does not apply, the Government will evaluate only those offers based on use of the equivalent domestic construction material, and the offeror shall be required to furnish such domestic construction material. An offer based on use of the foreign construction material for which an exception was requested-- (i) Will be rejected as nonresponsive if this acquisition is conducted by sealed bidding; or (ii) May be accepted if revised during negotiations. (End of provision) Alternate I (MAR 2009]). As prescribed in 25.1102(e), substitute the following paragraph (b) for paragraph (b) of the basic provision: (b) Requests for determinations of inapplicability. An offeror requesting a determination regarding the inapplicability of section 1605 of the American Recovery and Reinvestment Act of 2009 (Pub. L. 111-5) (Recovery Act) or the Buy American Act shall submit the request with its offer, including the information and applicable supporting data required by paragraphs (c) and (d) of the clause at FAR 52.225-21. 52.225-23 Required Use of American Iron, Steel, and Other Manufactured Goods--Buy American Act--Construction Materials under Trade Agreements. As prescribed in 25.1102(e), insert the following clause: Required Use of American Iron, Steel, and Other Manufactured Goods--Buy American Act--Construction Materials Under Trade Agreements MAR 2009) (a) Definitions. As used in this clause-- 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. Domestic construction material means-- (1) An unmanufactured construction material mined or produced in the United States; or (2) A construction material manufactured in the United States. 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. Recovery Act designated country means any of the following countries: (1) A World Trade Organization Government Procurement Agreement (WTO GPA) country (Aruba, Austria, Belgium, Bulgaria, Canada, 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, Netherlands, Norway, Poland, Portugal, Romania, Singapore, Slovak Republic, Slovenia, Spain, Sweden, Switzerland, or United Kingdom); (2) A Free Trade Agreement country (FTA)(Australia, Bahrain, Canada, Chile, Costa Rica, Dominican Republic, El Salvador, Guatemala, Honduras, Israel, Mexico, Morocco, Nicaragua, Oman, 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, East Timor, Equatorial Guinea, Eritrea, Ethiopia, Gambia, Guinea, Guinea- Bissau, Haiti, Kiribati, Laos, Lesotho, Liberia, Madagascar, Malawi, Maldives, Mali, Mauritania, Mozambique, Nepal, Niger, Rwanda, Samoa, Sao Tome and Principe, Senegal, Sierra Leone, Solomon Islands, Somalia, Tanzania, 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-- [[Page 14631]] (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 (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) and the Buy American Act (41 U.S.C. 10a-10d) do not apply to Recovery Act designated country 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 iron, steel, and other manufactured goods used as construction material in the project are produced in the United States; and (ii) The Buy American Act by providing a preference for unmanufactured domestic construction material. (2) The Contractor shall use only domestic or Recovery Act 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 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 iron, steel, or other manufactured goods used as construction material is unreasonable when the cumulative cost of such material will increase the overall cost of the contract by more than 25 percent; (B) The cost of unmanufactured construction material is unreasonable when the cost of such material exceeds the cost of foreign material by more than 6 percent; (ii) The construction materialis 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 or the Buy American Act to a particular construction material would be inconsistent with the public interest. (c) Request for determination of inapplicability of section 1605 of the Recovery Act or the Buy American Act. (1)(i) Any Contractor request to use foreign construction material in accordance with paragraph (b)(4) of this clause shall include adequate information for Government evaluation of the request, including-- (A) A description of the foreign and domestic construction materials; (B) Unit of measure; (C) Quantity; (D) Cost; (E) Time of delivery or availability; (F) Location of the construction project; (G) Name and address of the proposed supplier; and (H) A detailed justification of the reason for use of foreign construction materials cited in accordance with paragraph (b)(4) of this clause. (ii) A request based on unreasonable cost shall include a reasonable survey of the market and a completed cost comparison table in the format in paragraph (d) of this clause. (iii) The cost of construction material shall include all delivery costs to the construction site and any applicable duty. (iv) Any Contractor request for a determination submitted after contract award shall explain why the Contractor could not reasonably foresee the need for such determination and could not have requested the determination before contract award. If the Contractor does not submit a satisfactory explanation, the Contracting Officer need not make a determination. (2) If the Government determines after contract award that an exception to section 1605 of the Recovery Act or the Buy American Act 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 the section 1605 of the Recovery Act or the Buy American Act applies, use of foreign construction material other than that covered by trade agreements is noncompliant with the applicable Act. (d) Data. To permit evaluation of requests under paragraph (c) of this clause based on unreasonable cost, the Contractor shall include the following information and any applicable supporting data based on the survey of suppliers: Foreign and Domestic Construction Materials Cost Comparison ---------------------------------------------------------------------------------------------------------------- Construction material description Unit of measure Quantity Cost (dollars)* ---------------------------------------------------------------------------------------------------------------- Item 1: Foreign construction material............................ -------- -------- -------- Domestic construction material........................... -------- -------- -------- Item 2: Foreign construction material............................ -------- -------- -------- Domestic construction material........................... -------- -------- -------- ---------------------------------------------------------------------------------------------------------------- [List name, address, telephone number, and contact for suppliers surveyed. Attach copy of response; if oral, attach summary.][Include other applicable supporting information.] [* Include all delivery costs to the construction site.] (End of clause) Alternate I (MAR 2009). As prescribed in 25.1102(e), add the following definition of ``Bahrainian, Mexican, or Omani construction material'' to [[Page 14632]] paragraph (a) of the basic clause, and substitute the following paragraphs (b)(1) and (b)(2) for paragraphs (b)(1) and (b)(2) of the basic 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. (b) Construction materials. (1) The restrictions of section 1605 of the American Recovery and Reinvestment Act of 2009 (Pub. L. 111-5) (Recovery Act) and the Buy American Act do not apply to Recovery Act designated country 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 iron, steel, and other manufactured goods used as construction material in the project are produced in the United States; and (ii) The Buy American Act providing a preference for unmanufactured domestic construction material. (2) The Contractor shall use only domestic or Recovery Act 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. 52.225-24 Notice of Required Use of American Iron, Steel, and Other Manufactured Goods--Buy American Act--Construction Materials under Trade Agreements. As prescribed in 25.1102(e), insert the following provision: Notice of Required Use Of American Iron, Steel, and Other Manufactured Goods--Buy American Act--Construction Materials Under Trade Agreements (MAR 2009) (a) Definitions. ``Construction material,'' ``domestic construction material,'' ``foreign construction material,'' ``manufactured construction material,'' ``Recovery Act designated country construction material,'' ``steel,'' and ``unmanufactured construction material,'' as used in this provision, are defined in the clause of this solicitation entitled ``Required Use of Iron, Steel, and Other Manufactured Goods-- Buy American Act--Construction Materials Under Trade Agreements'' (Federal Acquisition Regulation (FAR) clause 52.225-23). (b) Requests for determination of inapplicability. An offeror requesting a determination regarding the inapplicability of section 1605 of the American Recovery and Reinvestment Act of 2009 (Pub. L. 111-5) (Recovery Act) or the Buy American Act should submit the request to the Contracting Officer in time to allow a determination before submission of offers. The offeror shall include the information and applicable supporting data required by paragraphs (c) and (d) of FAR clause 52.225-23 in the request. If an offeror has not requested a determination regarding the inapplicability of section 1605 of the Recovery Act or the Buy American Act before submitting its offer, or has not received a response to a previous request, the offeror shall include the information and supporting data in the offer. (c) Evaluation of offers. (1) If the Government determines that an exception based on unreasonable cost of domestic construction material applies, the Government will evaluate an offer requesting exception to the requirements of section 1605 of the Recovery Act or the Buy American Act by adding to the offered price of the contract-- (i) 25 percent of the offered price of the contract, if foreign iron, steel, or other manufactured goods are used as construction material based on unreasonable cost of comparable manufactured domestic construction material; and (ii) 6 percent of the cost of foreign unmanufactured construction material included in the offer based on unreasonable cost of comparable domestic unmanufactured construction material. (2) If two or more offers are equal in price, the Contracting Officer will give preference to an offer that does not include foreign construction material excepted at the request of the offeror on the basis of unreasonable cost. (d) Alternate offers. (1) When an offer includes foreign construction material, other than Recovery Act designated country construction material, that is not listed by the Government in this solicitation in paragraph (b)(3) of FAR clause 52.225-23, the offeror also may submit an alternate offer based on use of equivalent domestic or Recovery Act designated country construction material. (2) If an alternate offer is submitted, the offeror shall submit a separate Standard Form 1442 for the alternate offer and a separate cost comparison table prepared in accordance with paragraphs (c) and (d) of FAR clause 52.225-23 for the offer that is based on the use of any foreign construction material for which the Government has not yet determined an exception applies. (3) If the Government determines that a particular exception requested in accordance with paragraph (c) of FAR clause 52.225-23 does not apply, the Government will evaluate only those offers based on use of the equivalent domestic or Recovery Act designated country construction material, and the offeror shall be required to furnish such domestic or Recovery Act designated country construction material. An offer based on use of the foreign construction material for which an exception was requested-- (i) Will be rejected as nonresponsive if this acquisition is conducted by sealed bidding; or (ii) May be accepted if revised during negotiations. (End of provision) Alternate I (MAR 2009). As prescribed in 25.1102(e), substitute the following paragraph (b) for paragraph (b) of the basic provision: (b) Requests for determination of inapplicability. An offeror requesting a determination regarding the inapplicability of section 1605 of the American Recovery and Reinvestment Act of 2009 (Pub. L. 111-5) (Recovery Act) or the Buy American Act shall submit the request with its offer, including the information and applicable supporting data required by paragraphs (c) and (d) of FAR clause 52.225-23. Alternate II (MAR 2009). As prescribed in 25.1102(e), add the definition of ``Bahrainian, Mexican, or Omani construction material'' to paragraph (a) and substitute the following paragraph (d) for paragraph (d) of the basic provision: (d) Alternate offers. (1) When an offer includes foreign construction material, except foreign construction material from a Recovery Act designated country other than Bahrain, Mexico, or Oman that is not listed by the Government in this solicitation in paragraph (b)(3) of FAR clause 52.225-23, the offeror also may submit an alternate offer based on use of equivalent domestic or Recovery Act designated country construction material other than Bahrainian, Mexican, or Omani construction material. (2) If an alternate offer is submitted, the offeror shall submit a separate Standard Form 1442 for the alternate [[Page 14633]] offer and a separate cost comparison table prepared in accordance with paragraphs (c) and (d) of FAR clause 52.225-23 for the offer that is based on the use of any foreign construction material for which the Government has not yet determined an exception applies. (3) If the Government determines that a particular exception requested in accordance with paragraph (c) of FAR clause 52.225-23 does not apply, the Government will evaluate only those offers based on use of the equivalent domestic or Recovery Act designated country construction material other than Bahrainian, Mexican, or Omani construction material. An offer based on use of the foreign construction material for which an exception was requested-- (i) Will be rejected as nonresponsive if this acquisition is conducted by sealed bidding; or (ii) May be accepted if revised during negotiations. [FR Doc. E9-7031 Filed 3-30-09; 8:45 am] BILLING CODE 6820-EP-P
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