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ji20874

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Everything posted by ji20874

  1. Vern, Please read end item of supply as simple words strung together, rather than as a term. If it will work better for you, you may change those words to end product, which is a term in the context of the FAR. Nothing changes in this case. I want to avoid conflating “end product” and “component” as identical. I have a different opinion. In my practice, I treat these as different, because FAR Part 25 treats them differently (see the definitions in FAR 25.003) and the clauses at FAR 52.225-1, -3, and -5 treat them differently. I haven’t made that assertion. If you want case law, ask Nena. I’m just sharing information as a contracting practitioner, not as an attorney. As a matter of practice, I am not persuaded that every replacement part in every repair service, or every piece part in a supply end (or end product), must be of domestic or designated country origin. Sometimes in these matters, the same item will be seen as an end item by one person and a component by another person — this happens such as when buying an airplane, as an example — one might say the engines are components while another might say the engines are end items. It depends on the terms of the contract. But I don’t think we’re talking at this level. This discussion would require (1) an understanding that end products and components are different, and (2) an understanding of the exact text and context of a contract.
  2. If the contract is for delivery of remanufactured items, then one might say it is a contract for supplies which could be subject to the TAA and the clause at FAR 52.225-5 (based on the clause prescription at FAR 25.1101(c)(1)). If so, the remanufactured pipe, to continue with the example, would be an end item of supply and would have to be manufactured in the U.S. or a designated country. But remember that the clause only covers end products -- it does not address components -- so the replacement parts used in the remanufacturing still would not be covered by the clause. Note 1: The BAA does cover components (in most cases), but we're not talking BAA. Note 2: The Customs and Border Protection bureau in DHS makes TAA country of origin determinations. Here's a relevant quote from the article Carl shared: "Customs has repeatedly emphasized that it must consider the totality of the circumstances and make such determinations on a case-by-case basis, making it difficult for GSA Schedule holders to apply the test to their own or third-party products, particularly where there is no sufficiently-analogous published determination."
  3. ji20874

    Cancelling Solicitaiton - Sole Source

    Are you suggesting that a contracting officer CANNOT cancel or rescind a sole source solicitation? That would be a very bold suggestion! FAR 1.102-4(e) says a procedure (canceling a solicitation?) may be used if it is in the Government's best interest and is not prohibited anywhere. So Matthew's question is on target -- is there any citation prohibiting a contracting officer from canceling a solicitation?
  4. ji20874

    Funding Incrementation Yes or No

    Is the unforeseen condition a differing site condition (FAR 52.236-2) or a change (FAR 52.243-4)? Or something else?
  5. Nena, For this discussion, what matters is whether the contract is for supplies, services, or services involving the furnishing of supplies. A contract for 100 pipes is a contract for supplies. The clause at FAR 52.225-5 applies (depending on the dollar threshold in FAR 25.1101(c)(1)). The pipes are end products. A contract to repair Government-provided pipes is a contract for services. The clause at FAR 52.225-5 does not apply. The replacement parts used in the repairs are not end items. A contract to repair Government-provided pipes and also to provide a supply of spare parts delivered to a Government warehouse is a contract for services involving the furnishing of supplies. The clause at FAR 52.225-5 applies (depending on the dollar threshold in FAR 25.1101(c)(1)). The replacement parts used in the repairs are not end items, but the spare parts delivered to the warehouse are end items. Don, The clause at FAR 52.225-5 (TAA) clearly refers to end products, in contrast to the clauses at FAR 52.225-1 (BAA) and -3 (BAA/FTA) (these three clauses are a matched set). See the definitions of end product and component in the clauses and also at FAR 25.003 -- but see also the definitions in FAR 2.101 for contrast. Reading the term "end product" in 52.225-5 as reaching both end products and components would be an unreasonable reading of the clause -- there must be a space for end products separate from components. Other than pointing to reasonableness, I cannot prove anything. If a competitor alleges a TAA violation (almost all TAA and BAA violations are raised by competitors; the system is purposefully designed that way), the contractor would probably make a reasonable interpretation argument in its defense. I see the contract described here as one for services, period, so the clause at FAR 52.225-5 does not apply. The replacement parts used in the repairs do not constitute the furnishing of supplies. However, I am operating only on what I see here; I have not read the contract. If the CO in Nena's contract asserts that the contract is one for services involving the furnishing of supplies (and that the clause at FAR 52.225-5 therefore applies), I would want to reply that the replacement parts used in the repair are not end products (thus negating any effect of the clause). Pretty soon, the disputes process may be implicated to provide a resolution. Nena, Don't take my word for it -- I'm just providing insight based on experience as a contracting practitioner. I haven't seen everything yet (but I have seen a lot of TAA and BAA matters).
  6. ji20874

    FAR 52.204-21

    Oops! It is 12.301(d)(3) -- you need to read it as well as FAR 12.301(d) -- it will provide the answer you are seeking. Here is a LINK.
  7. ji20874

    FAR 52.204-21

    I don't see a discrepancy. You may be conflating prime contracts and subcontracts. PRESCRIPTION FOR PRIME CONTRACTS FAR 4.1903 says the contracting officer shall insert the clause at 52.204-21, Basic Safeguarding of Covered Contractor Information Systems, in solicitations and contracts when the contractor or a subcontractor at any tier may have Federal contract information residing in or transiting through its information system. · If you’re awarding a contract covered by FAR Subpart 4.19, you follow those instructions for the award of the prime contract – you include the clause in the solicitation and the contract. · However, if you’re awarding a contract for commercial items, then FAR 12.301(d) trumps 4.1903, and you follow the instructions at 12.301(d)(3) – you include the clause in the solicitation and contract except for acquisitions of COTS items. PRESCRIPTION FOR SUBCONTRACTS Para. (c) of the clause at FAR 52.204-21 gives instructions for including the clause in subcontracts.
  8. Nina, Except that let's change one sentence: "If inspection indicates minor repair/maintenance is required, then the contractor will purchase the necessary materials, and install them on government fixtures and charge the government for the parts." A services contract for repair might or might not provide for separate payment for repair parts.
  9. ji20874

    Funding Incrementation Yes or No

    Does your contract contain the clauses at FAR 52.236-2 and 52.243-4? These apply to fixed-price construction contracts above the SAT. If so, is the unforeseen condition a differing site condition (FAR 52.236-2) or a change (FAR 52.243-4)? Or, does your contract contain the clause at FAR 52.243-5? This applies to fixed-price construction contracts below the SAT. If so, which paragraph of FAR 52.243-5 covers your unforeseen condition -- para. (a) or para. (b)?
  10. Nena, If it is a contract for services, then the clause at FAR 52.225-5 is inapt. See FAR 25.1101. If it is a contract to repair a Government-provided pipe, that is a contract for services -- and the clause at FAR 52.225-5 does not apply. TAA application for services contracts is at FAR 25.402(a)(2) -- the FAR does not prescribe a clause for TAA coverage for services contracts that do not involve the furnishing of supplies. FAR Part 25 differentiates between end products and components. See the definitions in FAR 25.003. We must not conflate them as being the same. In your example, the replacement parts seem to be components, not end items. The TAA clause at FAR 52.225-5 covers end products, not components, and we're talking about TAA, so we're not talking about components. Note, however, that this is different from the BAA, which covers both end products and components. We also have to understand what "furnishing of supplies" means -- in your example, installing replacement parts on the pipe is not furnishing supplies to the Government -- the contract is 100% for services, and 0% for supplies. The replacement parts are used in the repair process by the repair contractor as part of the repair service, and are not separately furnished to the Government as supplies.
  11. The clause at FAR 52.225-5 applies to contracts for supplies, or contracts for services that involve the furnishing of supplies. See FAR 25.1101. But your client's task order seems to be for the furnishing of services without any delivery of end products. So, maybe the clause isn't operative in your client's task order (even though the clause is included in the task order's parent schedule contract). For services, the TAA's implementation in the FAR simply requires the contracting officer to determine the origin of the services by the country in which the firm providing the services is established. See FAR 25.402(a)(2). You should be able to assume that the schedule contracting officer did this when awarding the parent schedule contract. This is just a thought from a federal contracting practitioner. For a reliable legal answer on TAA application, you may want to consult an attorney.
  12. ji20874

    Stop Work / Protest

    FAR 52.242-15 is an inapt reference, but 52.233-3 is a good reference. An unsuccessful offeror thinks it should have gotten the award, and is protesting the Government’s award to you. The protester’s goal is to have your contract canceled (terminated) and have the award re-directed to itself. If you have inside or outside counsel, you might want to make them aware.
  13. I’m with here_2_help — negotiate fee as a fixed dollar amount. Problem solved.
  14. SCA is irrelevant. I can contract for a contractor to provide a physician (non-SCA) to staff a clinic 8 hours a day, every Monday-Friday (excluding federal holidays). It doesn't have to be the same physician person every day -- but when the customarily-assigned physician is absent for any reason, the contractor must provide a substitute. We should write each contract to get us what we need.
  15. ji20874

    GSA - Under SAT - LPTA

    RightSaidFed, Thanks for pointing to FAR 8.405-5(d) -- I wasn't previously aware of that. Professional discussion is good. Original Poster (I cannot use the screen name), In light of the above, I'll adjust my advice-- Step 1. Ask each of the four for a discount. See FAR 8.405-4. Not "revised pricing," but discount. This might solve your problem. If not, go to Step 2. Step 2. Consider FAR 8.405-5(d). This might solve your problem. If not, go to Step 3. Step 3. Re-read (and really read!) https://www.gao.gov/decisions/bidpro/402519.htm. This definitely will solve your problem.
  16. ji20874

    GSA - Under SAT - LPTA

    After getting discounts, if you still have a two-, three-, or four-way tie, see https://www.gao.gov/decisions/bidpro/402519.htm.
  17. ji20874

    GSA - Under SAT - LPTA

    Ask each of the four for a discount. See FAR 8.405-4.
  18. ji20874

    Business Development

    I did not discern a question in the original posting...
  19. ji20874

    Use of 52.217-9 to extend IDIQ Ordering Period

    Or maybe, the DFARS supplementation adds to the FAR text for DOD personnel by addressing a matter which the FAR does not address -- they could have put their rule in 216.505 with the same effect of directing DOD personnel to limit a contract's ordering period to five years. But wherever they put it, the FAR text's meaning is unchanged by an agency's supplementation.
  20. ji20874

    Use of 52.217-9 to extend IDIQ Ordering Period

    Yes. FAR Subpart 17.2 was written long before the FAR envisioned task and delivery order contracts. The DFARS supplementation proves nothing about the text of the FAR.
  21. ji20874

    Use of 52.217-9 to extend IDIQ Ordering Period

    DFARS 217.204(e) limits the ordering period for an IDIQ contract to 5 years. But the FAR does not, and if MAD-D's agency is outside the reach of the DFARS, well, let's just say that the DFARS limitation will not apply. Everything in FAR Subpart 17.2 is written for options that purchase supplies or services. Nothing in FAR Subpart 17.2 is written for options extending the ordering period of task and delivery order contracts. In my mind, if the option exercise that is being considered is for the purchase of supplies or services, then FAR Subpart 17.2 applies. If the option exercise being considered is for the extension of the ordering period of task and delivery order contracts, then FAR Subpart 17.2 cannot be blindly or rigidly applied because FAR Subpart 17.2 was not written for options extending the ordering period of task and delivery order contracts.
  22. But you probably wouldn't, right? I wouldn't write a contract for a guard or fire watchman in your examples where the contractor employee gets to decide if and when to show up at the worksite, with an understanding that we'll pay only for those hours where the contractor employee actually performs. For other possibilities (not the guard or fire watchman), I'm okay with a FFP LOE with a +/- 5% for sake of administrative efficiency, but I wouldn't want to set up that CLIN with HR as the unit -- I would rather do it on a LOT or JOB basis (or maybe MONTH) with the specified level of effort in the text -- and I wouldn't want to make payments to the contractor based on the hour, but would prefer to make payment based on the LOT or JOB, or with milestone payments. But sometimes, don't we see evidence in our work and read postings here on WIFCON of putative firm-fixed-price contracts (based on CLINs and clauses) where the manner of administration has effectively turned those contracts into T&M/LH contracts? Yes, others have seen poorly-written contracts. I suppose most of us have seen evidence of putative firm-fixed-price contracts (based on CLINs and clauses) where the manner of administration has effectively turned those contracts into T&M/LH contracts.
  23. And, both of these can be firm-fixed-price.
  24. FAR 13.303-2( c )( 3 ) authorizes BPAs with schedule contractors. As Joel mentioned, FAR 8.404( a ) points to 13.303-2 ( c )( 3 ). FAR 13.303-5( b )( 1 ) mentions a general limitation on purchases against BPAs and provides an exception for BPAs with schedule contractors. But yes, while Part 13 provides the general background for all BPAs, the particular procedures for BPAs with schedule contractors are in FAR Subpart 8.4.
  25. If you'll read FAR 13.303 carefully, you will see that it does indeed cover BPAs issued under schedule contracts.
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