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Fara Fasat

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  1. The dust has settled now, and I have completed my review of the applicability of clauses to CI contracts (larger project, not relevant here), so have a couple observations: 1. I missed the 'notwithstanding' in 12.301. I knew it from way back, but got too wrapped up in the 'all contracts' language. My fault. 2. There can be some honest debates over whether some clauses should or should not apply to CI contracts, as evidenced by the discussion over the gratuities clause. For example, the "Brand Name or Equal" clause, 52.211-6, is not listed in 12.301 and therefore not required in CI s
  2. Thank you for the response, 'beginners' comment notwithstanding. 12.301 trumps everything else. Fine, that's the answer. "All" doesn't mean "all." I'm not the only one who thought it might. Makes me wonder whether there are any other general policy statements that override specific prescriptions.
  3. Maybe I'm missing something simple, so feel free to point out my error. I'm trying to figure out whether the Gratuities clause, 52.203-3, goes in commercial item contracts. the prescription says all contracts over the SAT, but it is not listed in 52.212-5 as a mandatory clause for commercial item contracts, and it is not listed as a CI clause in the FAR Matrix I thought I remembered something from a few years ago that said a clause was not applicable to CI contracts unless the prescription specifically said it did. So I checked a couple others, and they are in 212-5
  4. The current US content test for a domestic product is simple. It just considers the cost of the parts and components you buy to make your product. No labor, no "value-added"; no profit or overhead. I call it a shopping list test. Make a list of all the parts and components you need to buy to make your product; put the US-made parts in one column, all others in another column; add them up. The price of the US column must be greater than the other column (i.e., at least 50% of the total) for your end product to be "domestic." The revision of the FAR to implement Trump's EO did not change t
  5. This sort of falls in the "what happened" category, but Bob can move it to a more appropriate topic if he decides. Anyhow, several years ago we had an extensive discussion about whether a contractor can put a proprietary legend on unlimited rights data. Part 1 is here: http://www.wifcon.com/arc/forum9a.htm and Part 2 is here: http://www.wifcon.com/arc/forum9b.htm . Even Prof. Nash weighed in. At times the discussion got quite heated, to say the least. I won't say what side anyone was arguing, but the Fed Circuit has now spoken in a Boeing case issued on December 21. It said that a co
  6. Thanks Neil. I think we just have to go with that. There's nothing better coming from the FAR. One would think they would define a term before imposing such draconian measures .... And it's only getting worse. The prohibition is bad enough, but the "use" ban goes into effect in August unless it is repealed or revised before then. It would ban any company from getting government contracts if it simply uses the prohibited equipment in its operations.
  7. Bob, thanks, but the report doesn't provide any further info. Formerfed - if what you are saying is that the prohibition applies to any equipment manufactured by the named companies ("the focus is on the manufacturer..."), then I disagree. There wouldn't be any exceptions if it applied to the whole company. I believe it applies to "telecommunications equipment" and am looking for more information on what that is.
  8. As everyone knows, section 889 of the 2019 NDAA prohibited the use of telecommunications equipment made by Huawei, ZTE, and others. It was implemented in the FAR in August and December 2019 with two certifications and a clause. My question is this: what is 'telecommunications equipment'? It was not defined in the NDAA, nor in the certifications or the clause. There is no definition anywhere else in the FAR. The term is used in Part 39, but it is not defined. The closest the FAR comes to a definition is in the list of exceptions, which states that equipment "that cannot route or redirect u
  9. Coming late to this but I had another question on the telecommunications prohibition and was searching for earlier discussions. Anyhow, I think this discussion is missing the certification at 52.204-26 and the interplay between it and 204-24. 204-26 is the broader certification and it is in SAM. It asks if the contractor provides the prohibited equipment to the government on any contract. Then in a specific proposal, if the contractor answered 'no' to 204-26, it does not have to fill out 204-24. If it answered 'yes', then it fills out 204-24 for that proposal. In 204-24, if it answer
  10. I've attached my latest list, in case it helps identify where it came from. I also see that some were approved by individual agencies (Army, AF), but most were by DLA or USDAT&L. Approved DNADs.docx
  11. Any forum members from DCMA or DLA? The list must be out there somewhere.
  12. Does anyone know where there is a list of current DNADs for the Berry Amendment? I downloaded one a few years ago that was current up to 2013, but need to update it. Unfortunately I cannot find one anywhere -- DCMA, DLA, DoD Acquisition and Sustainment, etc.
  13. OK, here's what I found: 52.212-5 was originally proposed in 60 FR 11198; March 1, 1995 and 60 FR 15220; March 22, 1995. However, the earlier version omitted the audit provisions for some contracts. To remedy this, a correction was issued (60 FR 17184, April 4, 1995) that added subparagraph (d). That's it -- no explanation for the use of the word "transaction" or how it differs from "all records" in the Part 15 clause. Unless someone has actual experience they can relate (i.e., 'we objected to their document request because it was not related to a transaction'), then I guess we can
  14. Slight correction to your post Neil: we're not saying that transactions are excluded from anything. Transactions are in both clauses. 215-2 talks about all records and transactions, whereas 212 only talks about transactions. We're trying to find out what the difference is, and if there is anything in "all records" that would not be a "transaction. That would shed a light on what could be excluded from an audit in a commercial item contract.
  15. I read Lilly, and it only addresses the scope of the "records directly pertinent ...", not the difference between all records and transactions. I would argue that the "directly pertinent" discussion would apply to transactions as well, but it still doesn't help on the difference. There doesn't seem to be much else out there, so I'll try to trace back in the federal register to when 212-5 was first added to see if there was an explanation, or any public comments on it.
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