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Fara Fasat

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  1. OK. Are you referring to 52.244-6(c)(2), which says the contractor may include other clauses as necessary? The point was simply that including 52.245-1 in a CI subcontract does not seem to require special approval. If it does, then OK, lesson learned. If it doesn't, let's not leave people with the impression it does.
  2. I agree with the above (FP, no GFP, tooling not a deliverable), with one caveat: I don't believe 52.245-1 requires special approval to go in a commercial item contract or subcontract. The prescription at 45.107(a)(1)(iii) states that it shall go in contracts awarded under part 12 where government property is furnished. The clause itself then says (at 52.245-1(b)(3)) that the contractor will insert it in subcontracts under which government property is furnished. It sounds like a straightforward application that doesn't require approval. True, 52.245-1 is not listed in Part 12, but we've seen that there are others scattered throughout the FAR that still go in CI contracts via a separate prescription.
  3. 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 solicitations or contracts. And yet commercial items are more likely to be identified by a brand name than a non-commercial item, so why not? Maybe there's a good reason for this clause, but there are a whole lot more that make you wonder why they wouldn't be required. 3. The 'notwithstanding' rule was presented earlier in this discussion as so all-encompassing and so easy to understand and apply, that any question deserved to be in the beginner's forum. Yet as with most things in the FAR, it's not so simple. There are some clauses that are nowhere to be found in Part 12 or 52.212-5, yet definitely belong in CI contracts. For example, 52.216-31, "Time-And-Materials/Labor-Hour Proposal Requirements -- Commercial Item Acquisition", is nowhere in Part 12 or 52.212-5. By 12.301(d), we should exclude it, yet the only reason for its existence is a CI contract. Its prescription is at 16.601(f)(3). The FAR matrix doesn't list it in the CI column, although the DAU matrix caught it. There are a couple others like this. The point is, there are some holes in 'notwithstanding,' and it's not easy to find them.
  4. 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.
  5. 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 as mandatory for CI contracts, but CI contracts are not called out in the prescription. For example, 52.204-23 (the Kaspersky ban) is listed in 212-5, but the prescription simply says all solicitations and contracts. So is 203-3 just another disconnect in the FAR? Should it be added to 212-5 to be consistent with the "all" prescription? Should the prescription say "except solicitations and contacts for commercial items?
  6. 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 the test, only the percent of US content. I see nothing but added complexity to put the Biden EO into practice. How do you measure "the value that is added...through US-based production"? Even more amorphous, what is "US job-supporting economic activity"? That seems like an invitation to claim all sorts of costs as "job-supporting." No matter what your views on the wisdom of Buy American-type laws, I think we can agree that they are confusing enough as is. I would hate to see a change to the one part of it that has been relatively straight-forward.
  7. 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 contractor can put a legend on unlimited rights data, as long as it is clear that it does not limit the government's rights. The decision is at http://www.cafc.uscourts.gov/sites/default/files/opinions-orders/19-2147.OPINION.12-21-2020_1705433.pdf . No doubt the attorneys for Boeing benefitted from the arguments raised in that discussion.😉
  8. 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.
  9. 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.
  10. 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 user data traffic or permit visibility into any user data or packets that such equipment transmits or otherwise handles" is excepted. I guess we can infer that if the equipment does do that, it is the covered equipment. Do we have anything better than that?
  11. 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 answers 'no' for that contract, then the discussion is over. If it answers 'yes' it then has to provide the information at (e) as part of its proposal so the CO can evaluate it.
  12. 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
  13. Any forum members from DCMA or DLA? The list must be out there somewhere.
  14. 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.
  15. 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 go no further. If I were faced with a broad request for records, I would borrow from the accounting definitions and argue that it is limited to documents relating to sales, purchases, and similar transactions. Anything else (internal costs, labor rates, etc) is not a 'transaction.'
  16. 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.
  17. 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.
  18. It's "records involving transactions," so I see the limiting term as "transaction." If it wasn't something different, why not just say "all records" like Part 15 does?
  19. No problem. I was trying to keep it succinct. Let me try this: the Part 15 clause has (b), (c), and (d), whereas the Part 12 clause only has (d). So what are the "all records" covered by the Part 15 clause, that are more than the "transactions" in both clauses? What's the difference, especially since the government only has the right to examine "transactions" under Part 12?
  20. Here 2 help: I think you're missing paragraphs (b) and (c) in 215-2. You compared paragraphs (d) in both 215-2 and 212-5, and of course found them to be very similar. I'm interested in what is covered by (b) and (c) of 215-2, which talk about "all records." It sounds like "transactions" are a subset of "all records," especially since 215 talks about all records and transactions, whereas 212 only talks about transactions. I know that the FAR can be inconsistent, and even sloppy, in its use of terms. But sometimes terms have a precise meaning. Which is it here? While this is not an active issue right now, I do have internal customers who want to know the risks of dealing with the government, and one of the things they always bring up is audit rights. It would be useful to be able to explain exactly what could be audited in a commercial item contract.
  21. Somewhat useful, but I'm looking for more. Not a current issue, just trying to understand. Specifically, what can the government not see under the Part 12 audit clause (transactions) that it can see under the Part 15 audit clause (all records)?
  22. The Part 15 audit clause (52.215-2) has extensive audit rights if the contract is cost-reimbursement, or if certified cost or pricing data was submitted. It also has at (d): "The Comptroller General of the United States, or an authorized representative of the Comptroller General, shall have access to and right to examine any of the Contractor’s directly pertinent records involving transactions related to this contract." The Part 12 audit clause (52.212-5(d)) only has the language concerning Comptroller General access to records involving transactions. Does anyone have experience with an audit under Part 12, and specifically what a "transaction" is? There is no separate definition of a transaction in the FAR, although the word is used extensively.
  23. I go to Federal Acquisition Regulation (FAR) | Acquisition.GOV to download the complete FAR and various agency supplements. Today I went there to get updated versions, and the complete FAR is still there in pdf, word, and html versions. But unless I'm looking in the wrong place, the supplements are only available in individual sections. I can't find a link to download, for example, the entire DFARS, or AFARS, etc. I really don't want to download 52 individual parts for each agency that I work with. Am I looking in the wrong place? Did I miss something?
  24. No dribbling. It's a hypothetical that I added to because we had a split on whether a TO had to be awarded to only a division, or to any division on the corporation. It's a discussion forum after all.
  25. The work it would take would meet the definition of a commercial item and is exempt from CAS.
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