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rmeman2k

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About rmeman2k

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  1. rmeman2k

    Is This a Violation?

    Thank you for the additional input. The Berry Amendment is an anomaly in the world of confusing statutes and regulations, very few cases discuss how it should be interpreted, and I can not find a case that pertains to its substance let alone the particular facts of this procurement.
  2. rmeman2k

    Is This a Violation?

    Thank you for the response, we are following the opinion of my legal advisor. I discovered the NASA case while researching the applicability of the Government response to the contractor’s proposal. The nonconforming items fell into two categories. Material in storage and material delivered to units in the field. We reached a negotiated settlement where the contractor would replace all of the nonconforming items in storage at no cost to the Government and a dollar value that represents a fair and reasonable value of the appropriated dollars spent on the unrecoverable nonconforming items. In that the “Preference for Certain Domestic Commodities “clause is silent on the subject of post acceptance remedies, the contractor has offered and the Government has agreed to accept supplies as consideration for the fair and reasonable value of the appropriated dollars spent on the unrecoverable nonconforming items. My legal advisor is not sure if this can be done but likes the idea. The NASA BCA case was the closest I found to addressing the issue of post acceptance remedies.
  3. rmeman2k

    Is This a Violation?

    Southern Pipe & Supply Co, NASABCA No 570-7, 72-2 BCA ¶ 9512, NASABCA No 570-7, 73-2 BCA ¶ 10,118
  4. What happens when the Government accepts articles containing synthetic fabric or coated synthetic fabric, only to realize later that the item is noncompliant? As a general matter, under the standard “Inspection” clause once final acceptance has occurred, the Government has no remedy under the contract itself. Acceptance is only inconclusive if there are latent defects in the items, fraud, or gross mistakes amounting to fraud. In March of 2013 a defense contractor self-reported to me, the contracting officer, that it delivered components which were not compliant with DFAR 252.225-7012 Preference for Certain Domestic Commodities clause in 14 of its contracts from 2005 to 2010. They also submitted a proposal to compensate the Government for the contractual non-conformance. I found that the National Aeronautics and Space Administration Board of Contract Appeals has examined whether a failure to follow a domestic preference requirement could constitute a “gross mistake amounting to fraud.” In that case, three years after it accepted and paid for steel tubing, the Government realized that the tubing violated the Buy American Act provisions in the contract and sought either an equitable adjustment in the contract price or replacement tubing from the contractor. The board found that neither remedy was available, reasoning that the “Inspection” clause was not meant to cover mistakes on a “collateral matter” such as a Buy American Act violation. Thus, the Government’s acceptance was final, and the Government could not invoke its pre-acceptance remedies. The board further found that the Buy American Act clause itself provided no express remedy for a violation of its terms. I believe the same reasoning logically should apply with equal force to the Berry Amendments synthetic fabric restrictions. The same kind of domestic preference policies are involved, and the “Preference for Certain Domestic Commodities “clause is equally silent on the subject of post acceptance remedies. My legal advisor’s opinion is, “if the contractor self-reported than it must be a Berry violation” and we should accept the compensation.
  5. rmeman2k

    Does Berry Apply

    Don, The carrying case is not incorporated in the optical sight. It is a stand alone bag used to safely transport the sight when not mounted on a weapon system. I agree the DFARS clause does not mention component.
  6. rmeman2k

    Does Berry Apply

    Thank you for the response. I read an article on DAU Acquisition Community Connection (https://acc.dau.mil/communitybrowser.aspx?id=526692) that indicated “The Berry Amendment applies to BOTH end items and components.“ Component, as defined in 41 U.S.C. § 403, is “any item supplied to the Federal Government as part of an end item or of another component.” For the procurement in question if the bags are viewed as a component of the end item, optical sight, do I apply the 10% rule to the component only? This procurement is in excess of SAP.
  7. rmeman2k

    Does Berry Apply

    A contractor self reported what they believe is a Berry Amendment violation. One of their sub-contractors is providing a fabric carrying case that contains nondomestic fabric. The firm fixed priced supply contract for Optical Weapon Sights includes the following clauses: 52.225-1 Buy American Act--Supplies (JUN 2003). 252.225-7012 Preference for Certain Domestic Commodities (JUN 2010) After review of both clauses in the contract in relation to the end item delivered to the US Army, $15,000.00 optical sight, and the component fabric case, $17.00 (the price of the case is included in the end item price), I believe this is a de minims issue. In other words, the case contains incidental amounts of natural fibers with a value less than 10% the value of end item, thus not evoking a Berry Amendment violation. Similar application of Buy American restrictions would require a 50% threshold. After review of the issue described, I believe the contractor is acting in good faith in delivery of the subject case and that this is not a Berry Amendment violation. I welcome feedback.
  8. I like the suggestion. I am reviewing the contract file for award. I shall have a discussion with the KO. Thank you Vern.
  9. A commercial solicitation with an estimated award value in excess of $10M was issued for commercial concealable body armor. The basis of award is Low Price Technically Acceptable. The contract type is a three-year IDIQ contract. The solicitation informed offerors that the Government will make up to two IDIQ contract awards. Eight proposals were received and they were all found technically acceptable. One offeror submitted two designs and they were the two lowest priced proposals. The award decision by the contracting officer is to award one IDIQ contract to the lowest priced offeror and since the second lowest priced offer is from the same offeror, award a second IDIQ contract to the third lowest priced offer. The rational is, that in order to compete future delivery orders IAW FAR 16.505((1) Fair Opportunity, the two awards must go to two different offerors. The agency’s legal advisor concurred. I am having some difficulty with this decision because the solicitation did not state only one design will be considered. That said, reading FAR 16.504©(1)(i) when making multiple awards of IDIQ contracts the contracting officer must give preference to two or more sources. Any thoughts or comments?
  10. rmeman2k

    BAA and RDT&E Budget Activities

    Thank you for the additional references. I submitted the same question to my legal advisor I received the response below this morning, it is similar to yours. The definitions of 6.1 and 6.2 funds clearly fall within the language of FAR 35.016. 6.5 funds clearly encompass efforts that fall within the exclusionary language of FAR 35.016. 6.5 funds focus on programs which have already gained a specific focus, not the basic "new idea" initiative for which the BAA process is intended. 6.4, like 6.5, appear to be focused on specific components and subsystems. While I cannot say that efforts falling within the definition provided for 6.4 funds are categorically ineligible for the BAA process, any BAA proposed to be funded with 6.4 funds should be specifically justified as "not related to the development of a specific system or hardware procurement".
  11. IAW FAR 35.016 (a), the broad agency announcement is used for the acquisition of basic and applied researched and that part of development not related to the development of a specific system or hardware procurement. DoD Financial Management Regulation (DoD 7000.14-R), Volume 2B, Chapter 5 paragraph 050201 provides six detailed definitions of RDT&E budget activities, with budget activity 1 being basic research and budget activity 2 being applied research. My contracting center supports a program office whose mission is to develop, procure and sustain soldier protective equipment. RDTE funds are budgeted for development and improvement of the equipment and/or hardware. The funds the program office receives are designated as budget activity 4 and budget activity 5 RDTE funds. The program office believes that a BAA may be used for all six budget activities. Are they correct or is a BAA limited to budget activity 1 and 2 funds only?
  12. To close the loop on this posting; we held a meeting with the Prime and their tier one sub and shared the contents of U.S. Code Title 10 Subtitle A Part IV Chapter 137 Section 2306a (a)(1)( C ). Neither the Prime nor the sub was familiar with that section of USC Title 10. The subcontractor agreed to provide pricing data. Even though I drew the wrong conclusion from my research I have to say thanks to Vern Edwards for the FAR Bootcamp. The training to research, read, interpret and apply the Federal Acquisition Regulation (FAR) came into play here. I still have work to do on my interpretation Vern.
  13. Each of the six sub elements has individual components. Some of those components, not all, are used when the six sub elements are put together to make an assembly. The prime takes that assembly and integrates it on an existing non commercial end item. The prime?s cost and price data shows pricing for the subcontractor?s assembly. The subcontractor owns the sub elements and will not release cost or pricing data for the assembled item because the sub elements are commercial.
  14. I am afraid the subcontractor is going to tell the CO to get lost. The sub is the manufacturer of the six sub elements and sells them commercially. They have provided pricing of the six sub elements. The problem is that an unknown percentage of each sub element is put into the assembled component.
  15. My office issued a sole source FFP non commercial supply RFP with an expected award value that will exceed $1 million. The contractor was required to submit cost or pricing data. This effort is to assemble a component and integrates it onto a non commercial end item. A subcontractor is assembling the component and has asserted the six subsystem elements of the component meet FAR 2.101 definition of a commercial item, therefore the assembled component is a commercial item with minor modifications. The subcontractor has refused to provide cost or pricing data to the prime. The subcontractor is not currently selling the assembled component to anyone. The Government is not able to determine price reasonableness of the Prime?s proposal without cost or pricing data of this key component. The Prime has requested Government assistance in addressing this issue with their subcontractor. I believe U.S. Code Title 10 Subtitle A Part IV Chapter 137 Section 2306a (a)(1)( C ) requires the subcontractor to submit cost or pricing data. Is my position valid?
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