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  • Question

    Could FAR 52.225-11 be used in a shipbuilding contract, or is it only for construction of buildings or other infrastructure projects


    Answer

    Good question, the answer is only for construction of buildings or other infrastructure projects.  The reason is because of the definitions in the FAR and Agency Supplements, see FAR 2.101 Definitions:
     
    Supplies” means all property except land or interest in land. It includes (but is not limited to) public works, buildings, and facilities; ships, floating equipment, and vessels of every character, type, and description, together with parts and accessories; aircraft and aircraft parts, accessories, and equipment; machine tools; and the alteration or installation of any of the foregoing.
     
    Construction” means construction, alteration, or repair (including dredging, excavating, and painting) of buildings, structures, or other real property. For purposes of this definition, the terms “buildings, structures, or other real property” include, but are not limited to, improvements of all types, such as bridges, dams, plants, highways, parkways, streets, subways, tunnels, sewers, mains, power lines, cemeteries, pumping stations, railways, airport facilities, terminals, docks, piers, wharves, ways, lighthouses, buoys, jetties, breakwaters, levees, canals, and channels. Construction does not include the manufacture, production, furnishing, construction, alteration, repair, processing, or assembling of vessels, aircraft, or other kinds of personal property (except that for use in Subpart 22.5, see definition at 22.502).
     
    22.502 “As used in this subpart—
    “Construction” means construction, rehabilitation, alteration, conversion, extension, repair, or improvement of buildings, highways, or other real property.
     
    But again, not ships or vessels.
     
    “Building or work” means construction activity as distinguished from manufacturing, furnishing of materials, or servicing and maintenance work…..
     
    And again not ships or vessels.  Note: bold added by me for emphasis.
     
    A review of the DFARS, NMCARS and HSAR reveal no implementing or supplementing requirements or definitions that change those in the FAR and the answer to the question.
     

    As a result, you should follow the guidance for Buy American Supplies and see if there is an exception (see FAR 25.103 and DFARS 225.103) or a waiver (see FAR 25.4* and DFARS 225.401-70).
     
    * The FARSite at Hill has not yet been updated to reflect the latest trade agreement thresholds, but the acq.gov FAR site has.
     
    Based on your exception or waiver analysis, you will use the DFARS Provisions and Clauses found at DFARS 225.1101 [e.g. 252.225-7000 and 252.225-7001, or 252.225-7020 and 252.225-7021, or 252.225-7035 and 252.225-7036 and/or one of their Alternates]
     
    A great place to start would be taking DAU’s newly revised and completely updated CLC 027 Buy American training.


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