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Fara Fasat

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Everything posted by Fara Fasat

  1. DPAS

    Scenario: a subcontractor has accepted a rated order from a prime. Sub has made deliveries on time, but prime has failed to pay. In accordance with its standard practice, sub wants to put a hold on future deliveries until prime pays. However, can a contractor do that under a rated order? A contractor's primary obligation under a rated order is to deliver on time, even if it requires delaying deliveries on non-rated orders. Must the sub therefore keep delivering even if the prime is not paying, and seek other remedies? I have searched the DPAS regs thoroughly, and gone through all training materials from DoD, DoC, and even the DAU DPAS course. None of them answer this question. However, none of them mention any exception to the obligation to deliver on time either. My conclusion so far is that the sub must continue delivering on the current order, but if anyone knows of an exception to this ....
  2. DPAS

    I’ve read the article and a couple of the cases in it that sounded promising. The article itself was very general and thus not of much use. One case was a bankruptcy case (193 B.R. 204), and the bankruptcy court cited the DPAS acceptance/rejection criteria to assert that a supplier could withhold performance. It looked at 700.13(c), which gives a supplier the right to reject an order, and asserted that this explicitly allows a supplier to refuse to ship when its terms aren't met. I don't buy it. The court took contract formation criteria and applied it to contract performance. The Sterling Millwrights case (26 Cl.Ct. 49) was more on point. Complicated facts before the Claims Court in a T for D case, but one Sterling defense was that various government delays and failures excused its own failure to meet the DPA. The Claims Court disagreed and said that “the court must conclude that the government’s indolence in performing its contract obligations did not excuse Albany Steel [a subcontractor] and Sterling from performing in accordance with the DPA.” Sterling has been cited many times, but not on DPAS. It remains the only case I can find on this issue, and it concluded that a supplier had to continue performance in the face of government failures. The full context of Sterling makes a direct comparison difficult, but it's a red flag.
  3. DPAS

    Thanks for the responses. Here are my thoughts: C Culham: I don't think 700.13 (d)(3) helps. That applies when the supplier "finds that shipment will be delayed" which suggests production difficulties or other inability to meet the delivery date. Here, the supplier has made the product but wants to withhold shipment. It hasn't 'found' that delivery will be delayed; it wants to delay. Vern: trying to get that BP now. That quote concerns me. OIS accepted orders, wanted to stop production, and refused delivery. In response, SIES issued a directive to OIS to perform, and presumably could have taken enforcement action. That's what concerns me unless there is clear authority excusing performance of deliveries. Given the regs' priority requirements, DPAS clearly expects suppliers to put themselves in potentially breaching positions with other customers in order to meet a rated order's deliveries. That tells me that the overall mandate of DPAS is "meet your delivery date regardless of other impacts."
  4. FWIW, I think you're making too much of the sub's business into your business. In 25+ years doing this, I have dealt with all the major primes and hundreds of smaller. I have seen all of their standard terms and non-standard terms. With the exception of a FAR clause that specifically requires it, none of them require the sub to separately confirm or verify their compliance with any flowdown clause. My company is also a major prime, and we don't do it. There are some that might require some monitoring of a sub, like the counterfeit parts clause, but certainly not EEO, AA, etc.
  5. Where in that clause do you see a requirement to provide proof to you of enrollment within 30 days? Unless I'm missing it, even the prime is not required to provide proof (and to whom, the CO?). Why do you consider it the prime's job to verify that your sub enrolled in E-Verify? Do you require your subs to verify to you that they have filed their EEO reports; have AA plans; notify their employees of rights under the NLRA; etc, just to name a few other mandatory flowdown clauses?
  6. That may be, although I interpreted sjst1 as saying that they required the FC identification in the subcontract itself, outside of 52.222-54. We'll have to see what sjst1 says.
  7. Why are you, as the prime, making it your business to tell your sub how to register in E-Verify? Why are you making their identification a condition of entering into a subcontract with your company? The clause requires you to flow it down to your subs. You've done that. It doesn't tell you to verify how your sub registers, or to ride herd on your subs to make sure they properly (according to you) identify themselves. If the subcontract contains that clause, it becomes the sub's contractual responsibility to register in E-Verify. You completed your contractual obligation by inserting the clause in the subcontract. Don't make subcontracting more difficult than it needs to be.
  8. For construction contracts under the Buy American Act (BAA), construction material must be domestic, which means it must be made in the US and have at least 50% US content; otherwise it will be be subject to the evaluation penalty. Under the Trade Agreements Act (TAA), construction material must either be domestic or be made in a TAA country. Therefore under both, construction material must meet the domestic definition. HOWEVER, emergency life safety systems, such as fire alarm systems, are treated as a single item no matter how the individual products are brought to the construction site (see definition of domestic construction material in FAR Part 25). Therefore, it is the content of the entire system that must be at least 50% US. Question: what is included in the system for purposes of calculating the content? Is it just the working components of the system, such as control panels, alarms, detectors, annunciators, strobes, etc? Or does it include incidental things like wire, conduit, boxes, etc, that are used to connect and install the system? This is an important issue, because inclusion of those incidental products could make the difference in meeting the 50% test.
  9. content of fire alarm system

    Thanks. Still has some subjectivity, but I think we can say that if something is specified to go with the system (such as a certain type of wire) then it can be included in the single-item 'system' for purposes of the BAA. Now, since you introduced it , are you saying that a sprinkler system falls within the category of 'emergency life safety systems'? I hadn't thought about it before because my concern was the alarm system, but I agree it should. However, note that its purpose is different from that of the examples in the FAR. Its purpose is to suppress a fire, even in non-occupied structures, whereas the FAR examples warn people and help in their evacuation, hence 'life' safety. Nevertheless, a sprinkler system saves lives too, so I would include it.
  10. content of fire alarm system

    Just checked with someone who works with fire systems. He says that while the listed items are good indicators of what comprises the 'system', it is not completely accurate. One manufacturer might list wire for a system, but another might not - sometimes the wire specifications are in the installation instructions. So the listing does not definitively answer what is in the system for the FAR's 'single item' definition. Conduit, boxes, etc, usually are not listed. Back to the drawing board? Any answer from your friend? It remains an important question, because the inclusion of wire, conduit, boxes, etc, can make the difference in the 50% US content. One argument I've heard is that the system is useless if it is not connected, so of course the wire and conduit and other elements are part of the system.
  11. content of fire alarm system

    That sounds right. I don't know the details of the UL approval process, but I believe that products are tested and then listed for a particular fire system. If you don't use a product on the list, the system will not get approved. If a specific wire is listed for a system, then only that wire can be used. Wouldn't mind hearing from your friend though.
  12. content of fire alarm system

    Joel, I sent a reply to your message. Thanks. As for COTS, I'm not confused about the definition. I fully agree that each of the components - alarms, panel, etc, are usually COTS items. The problem is that special definition for an emergency system. If we are to treat the whole system as a single item, then it is that single item that is delivered to the government. Accordingly, it is that single item that must meet the COTS definition. I don't think you can jump back and forth and treat the system as a single item for BAA purposes, but then look at the individual components for COTS purposes. That would be like breaking down a unique military item and saying that if each component is COTS, then the end item is COTS as well. It certainly would be easier if we could do that, but I just don't think you can have it both ways like that.
  13. content of fire alarm system

    Joel, what then do you think the FAR means when it says that the entire system is "evaluated as a single and distinct construction material...."? Your post above seems to be saying that each item in the system (control panel, detectors, strobes, pull-boxes, etc) is an item of construction material, rather than the whole system being one item.
  14. content of fire alarm system

    Todd - thank you for taking the time to answer, as people usually avoid BAA/TAA issues. Summarizing your answer, you seem to be saying that the wire, conduit, etc, are necessary, and therefor part of the overall system. That means they are included in the calculations for the 50% content test. However, regarding your COTS statement: I think it is very unlikely that a fire alarm system could be COTS. Since it is, by definition, a single item of construction material, it is unlikely that that item would be sold to the government, without modification, in the same form in which it is sold in the commercial marketplace. What are the odds that the same system configuration would be sold to the government as in a commercial building, let alone in substantial quantities?
  15. Background: solicitation was issued on SF33 as a noncommercial item. Apparently no market research was conducted, as the solicitation is for ... a switch. The buyer apparently believes that because it goes on a military aircraft, it cannot be commercial. Contractor submits a proposal along with a commercial item justification, and wants the contract awarded as a commercial item contract, with only the clauses and requirements that apply to commercial items. Buyer says this can't be done - a change would have to be made the military database; it would take several months because it has to be approved through the Navy, Airforce...etc; it has to go through all the military branches engineering department for approval to change this part number; and so on. Question: if the contractor proposes the item as a commercial item and satisfactorily justifies it, can a contract be awarded that deletes the clauses that are inapplicable to commercial item acquisitions?
  16. solicit as noncommercial; award as commercial?

    sorry that's 52.212-4.
  17. solicit as noncommercial; award as commercial?

    True, but they've already started down the wrong path. The question is how do you get on the right path? I'm not government, so I don't know if the lengthy and complicated process cited above is correct, or whether they just don't want to bother (or admit it's commercial). If it's actually that complicated, then I suspect their answer will be to reject the commercial item justification. So - can a solicitation that starts off on an SF33 be awarded as a commercial item by deleting the inapplicable clauses (and probably adding 542.212-4)? If not, can this simply be cancelled and re-solicited under Part 12 without the lengthy process above?
  18. When a non-manufacturer of a product, such as a reseller or distributor, applies for a GSA contract, it must provide a Letter of Supply (LOS) from the manufacturer. An LOS typically requires 3 statements from the manufacturer: 1) that it will meet all orders, 2) that the products are Trade Agreements Act compliant, and 3) that its products meet the EPA's CPG guidelines, if applicable. Recently, for schedule 70, the GSA's LOS template now requires a disclosure of the manufacturer's discount to the reseller, and a price reduction notification. As far as I can tell, these are not in the templates for other schedules. Does anyone know why these were added to the schedule 70 LOS? I have searched the GSA website, and all reference materials, and cannot find an answer.
  19. Letters of Supply

    " You asked a question related to this one in July 2014" No, that was a different question. The July question was about the CSP and it was satisfactorily answered. This is about what goes in an LOS, and why it is now different for schedule 70. " Why do you want to know?" Do we now have to justify our reasons for asking questions? " How would it change your life if you knew?" Is that the criterion? I believe there have been some less-than-life-changing questions (and responses) here before. " How would it change the way you work?" See below. " If you want to know just to satisfy your own curiosity, why not do your own research?" No it's not, and I did. Read my post again. " Have you called anyone in the GSA FSS program?" No, I'm asking here, which is what I thought was the purpose of this forum, which presumably includes GSA members who might know something about the issue. Not that I have to justify my question, here's why: A manufacturer that wants to get its products on a GSA contract, but either does not want or is not set up to handle the administrative burdens, can list its products through a reseller. The burden got reduced to simply agreeing to the requirements in the LOS; primarily TAA compliance. Significantly, pricing issues were the GSA reseller's concern, not the manufacturer's. It was the reseller's customers, discount practices, and price reductions, that mattered, not the manufacturer's. Now the LOS, and only for schedule 70, requires a manufacturer to to disclose its discount to the GSA reseller. This should be irrelevant to the GSA, as the basis of negotiations and of award is the reseller's discount practices. In addition, there is often more than one reseller in the distribution chain, and manufacturers typically do not disclose their discounts to other than their direct customer. Furthermore, the LOS would now require the manufacturer to notify the GSA reseller of any changes in its prices or discount practices. This erodes one of the benefits of selling products through a reseller and not holding your own GSA contract. Again, what should matter is the GSA resellers' price to its customers, which is what the GSA is. Why is this important? All I need to say is that it is important to the manufacturers I work with. In deciding whether to disclose this information, or indeed whether to even do this any more, it is important to know more about the requirement. The LOS is a template, so is the information mandatory; a policy; a recommendation? Is there a reason for the difference between schedule 70 and all others? Can a reseller get products added without this information? These and other reasons will help in making an informed decision.
  20. We're currently dealing with a CO from DLA who is insisting on unredacted invoices for a commercial item. This is for a competitive solicitation. Nothing else is sufficient -- not the fact that there is competition, not a table of sales and prices, not redacted invoices. She claims it is required so that she can determine the price is reasonable. Our practice has been to submit redacted invoices -- when invoices are even required. Seemed to satisfy everyone in the past. Unfortunately there is nothing in 15.4 that would prohibit her demand, other than the admonition to not request "more than is necessary."
  21. Is there a place within DoD where you can get a determination on whether a product is a commercial item, or is that decision made on each individual contract by every CO? Here's the situation - before issuing the last solicitation, the CO asked whether we could show any commercial purchase orders for the part. No? Then it's not a commercial item. No questions about "of a type", no questions about whether it was modified, no questions about whether any other manufacturer made it. That was obviously lazy and inadequate market research, but challenging her only made her mad. So is there a board, office, division, whatever, where you can get a determination that will apply to all purchases of a part, or a class of parts? Or are we stuck with the whims of an individual CO in every buying office for every purchase?
  22. DoD, TAA and GSA

    This question came up in a longer thread on the Buy American Act (BAA), but was never answered. I'm reviving it here under its own thread. DoD only applies the Trade Agreements Act (TAA) to certain listed Federal Supply Groups (FSGs). If a product is not on the listed FSG, the TAA does not apply and the BAA will. That means that all products must be domestic unless an exception applies. A GSA contract is subject to the TAA because all GSA contract are assumed to be over the TAA threshold. That means that products can be made in the US or designated countries. Question: can a DoD buyer buy a non-listed FSG product from a GSA contract? If the product is in a non-listed FSG, DoD does not apply the TAA, so it should be giving a preference to domestic products. Yet products on a GSA contract will also be from TAA countries. In such a case, can a DoD buyer buy a non-listed product off a GSA contract, or must the buyer conduct a separate acquisition for these products and not use the GSA? Are there any government buyers on this forum who have used a GSA contract for non-listed FSGs?
  23. DoD, TAA and GSA

    Don, thanks, but my question isn't about what clauses to add to a GSA order. It's about whether DoD can buy a product from a GSA contract that it wouldn't be able to if it were conducting a separate acquisition. Here's the problem: DoD only applies the TAA to certain FSGs; a GSA contract applies the TAA to all products. That means that the GSA schedules are filled with products that DoD wouldn't be buying if it conducted a separate, non-GSA acquisition, because those products are not made in the US or qualifying countries. So what is the DoD practice? If the product is not in one of the listed FSGs, does the buyer have to forego using the GSA?
  24. BAA/TAA COTS exception

    For those who don't like acronym overload in a post without definitions -- BAA: Buy American Act TAA: Trade Agreements Act COTS: commercial off the shelf item, defined in 2.101 as the same thing that is sold commercially, no modifications or 'of a type.' Both the BAA and TAA require construction material to be "domestic", meaning it must be made in the US and have at least 50% US content. However, the content test is waived for COTS items. Here's the situation: several things used in construction are items that are assembled from several COTS items and brought to the site as a larger assembly. For example, some air handling units consist of ducts, controls, actuators and valves. Each of those things are COTS, in that they are sold as is to all customers. However, the final configuration may be unique to that project. The manufacturers allow customers to configure the air handler from a list of the components in a catalog, and some even have a "configurator" on their web site. So a commercial customer might need valve A, while the government project might need valve B. Here's the question: If the air handler is brought to the project site in its pre-assembled form, is it a COTS item, even if it is not the exact configuration sold to a commercial customer? Related question: Do each of the components remain COTS items, if they get pre-assembled into an air handler offsite? In other words, whether looked at as a whole air handler or as ducts, actuator, valve, etc, is it all COTS?
  25. BAA/TAA COTS exception

    The missing "not" is in the last sentence of the discussion of the Durst case in section 5b. The "substantial change" discussion is section 5a.
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