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Fara Fasat

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  1. Thanks for all the information. It is very useful. The only thing I will add is that I did not dribble anything out. I posted what I knew at that time. Since I was dealing with DoD, I focused on their clause and SBA supporting materials. I then went to the Nash 3-volume IP treatise to see what it said about SBIR. That's where I noticed the FAR language. Interestingly it did not comment on the difference between the FAR and DFARS treatment of a large business's SBIR data, especially since it is a significant difference. Once I found it, I added it to the discussion. If that's a dribble, so be it.
  2. 1. because there was no corresponding definition in the DFARS clause and I hadn't found the FAR one at the time of my post. 2. I just learned about that difference. Apparently you just did too. Let's skip the snark and just stick to the discussion, OK?
  3. I'm a bit concerned about the difference between the FAR and the DFARS. The FAR definition made me think I might be missing something in the DFARS version. But seeing nothing to the contrary in this discussion, I'll take the clause as it is. Thanks for the contributions.
  4. Maybe the discussion is beneath you, but I first asked a couple of experienced practitioners, and they said an LB could not do it. When I showed them the clause, their reaction was "hmmm, it does seem to say that. There must be a catch." That's why I thought I would tap into the broader knowledge and experience of this forum. I should also point out that the FAR has a definition of SBIR data that is "data first produced by a Contractor that is a small business concern." The DFARS does not have that definition, and just defines SBIR data rights. It also defines "generated" as "technical data or computer software first created in the performance of this contract." It does not say first created by a small business. So you see, there is a difference in treatment under the FAR and DFARS. Seems like a legitimate area of inquiry, for Pete's sake. πŸ˜‰
  5. I asked because it seems contrary of the intent of the SBIR program, which grants special status to the work of a small business. It also seems that it allows a large business to get a benefit it would not otherwise get. I'm not saying it's wrong or that I disagree with it; I just wanted to confirm my reading, sometimes loosely referred to as a sanity check. πŸ™‚
  6. I'm asking whether a large subcontractor on an SBIR prime contract can deliver data that was developed on its subcontract (i.e. with government funds) with SBIR data rights instead of unlimited rights. If the clause is flowed down into its subcontract without alteration except to identify the parties, then the clause would say it can.
  7. Scenario – a small business has an SBIR contract. One of its subcontractors is a large business. The SBIR data rights clause (DFARS 252.227-7018) is in the prime contract. The clause grants SBIR data rights to all technical data developed under the contract (essentially equivalent to limited rights). The clause (at (k)(2)) says that it is to be inserted in all subcontracts without alteration except to identify the parties. It also says that no other clause shall be used to enlarge or diminish the rights of the government, or the contractor in any subcontractor's technical data. The question – can the large business assert SBIR data rights in any data it has to deliver, thus getting the same 20-year protection as the SBIR prime? On the one hand, the clause does not limit its application to only small business subcontractors. If it goes in the subcontract without alteration, as (k)(2) says, then the large sub can deliver any data it develops with SBIR data rights. Also, SBA materials on its SBIR website do not distinguish between large and small subcontractors, which suggests they get treated the same. I could find nothing that limits the SBIR data rights protection only to a small business subcontractor. On the other hand, one would think that the favorable treatment of data developed under an SBIR contract would only be extended to the SBIR contractor or to other small businesses.
  8. CaptJax - there is nothing in the definition of a commercial product that requires it to be used for the same purpose as it is used commercially. The definition focusses on the product, not the intended use. Even if they have to meet some government requirement, they might still qualify under the 'modified' or 'of a type' parts of the definition.
  9. It seems that writing clear, grammatically correct regulations is a lost skill in DoD. I'm referring to the recent tantalum restriction mandated by the 2020 NDAA. Despite commenters asking for clarification of sentences that made no sense, DoD stood its ground and said there was no need to clarify. If I have time I'll start a new thread to avoid cluttering up this one. I'll just say that while the NDAA itself was not a model of clarity, DoD completely mucked it up. Was the new rule written, reviewed, and approved by people with college degrees? Likely.
  10. I made that point (date of award refers to when to apply the dollar threshold) to the prime and also in my first post here. This is an administrative and process problem not a legal one, although getting a cert after the award decision has been made may technically violate the requirement to make a responsibility determination before award (especially debarment). We will decide how to handle this, and it will be an informed decision.
  11. No that wasn't what I was hoping for. The first 8 words of your first post were sufficient. The rest -- . I should add that our order management people say that they can't do what the prime is asking, and I believe them. They came to me as the contracts person to ask whether the prime was correct and to make sure we weren't making a bad argument. I gave them my opinion. It makes a difference to me because they asked for my support on the regulatory question. They still have to figure out what to do, and they are exploring every possible workaround, but they can do it with confidence that they won't be embarrassed down the road. At some point they may have to balance the amount of business against the extra work, and make a business judgment whether it is worth any changes to our processes. Had the answer been otherwise, I would have told them the customer is right, our processes do not meet the requirement , and we need to fix them.
  12. Yes it does. Our process requires that we enter their cert in DocuSign, route to the person with signature authority, get it signed, and return to the prime. It usually doesn't happen in one day, and it can't be backdated. Also the prime will not accept one signed and dated on any day before they issue the PO. They claim that the 'same-day certification' is required by their DCMA auditors. Their certification states "Seller certifies as of today, the date of award, the Seller, or its principals can, ______ certify –or‐ _____ not certify ...." (Italics mine) They further have stated regarding a PO that "we are required to issue the PO on the same day that debarment and anti-lobbying are certified so since this form is dated 8/23, it is considered expired.
  13. We're running into a problem with a prime and I was interested in the views of the forum. The prime is demanding the debarment and lobbying certifications signed as of the date of a PO award, even if you submitted them with your proposal or quote. They cite 52.203-12(g) as their support: "The Contractor shall obtain a declaration, including the certification and disclosure in paragraphs (c) and (d) of the provision at 52.203-11, Certification and Disclosure Regarding Payments to Influence Certain Federal Transactions, from each person requesting or receiving a subcontract under this contract that exceeds the threshold specified in FAR 3.808 on the date of subcontract award." They say it means that the certification must be obtained on the date of award. We say that 'on the date of award' refers to when you look at the contract value. In support of our view, all reps and certs are submitted with a proposal, and we can find no requirement that any be recertified on the date of award. After all, the purpose of reps and certs is to allow the buyer to determine whether a proposed seller is responsible. That decision has been made when the contract is awarded. Furthermore, the required cert in 52.203-12(g) is 50.203-11, is submitted with proposals, and so is the debarment cert. So - are we missing anything and is there any requirement to sign and submit a debarment and lobbying certification on the date of a contract award?
  14. The pdf FAR and DFARS have bookmarks in that navigation panel on the side. I find these much easier to use than the TOC at the beginning. It's also easier to create bookmarks in a pdf document than to create a TOC in a Word document. Of course, that may be a personal preference. Nevertheless, I agree there's no excuse today for not creating a document that can be navigated.
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