Fara Fasat

Yes, and I had determined that none of the factors there applied. However, we were told that location 2 needed its own CAGE Code because, well, because it was required.

Situation: business unit has its headquarters at location 1 and manufacturing sites at other locations, call them locations 2 and 3. Location 1 is registered in SAM and has a CAGE Code. Business is about to sell a product to the government that is manufactured at location 2. Question: does location 2 need to have a CAGE Code?

Unfortunately, your assessment is true. Thanks for not leaving the discussion.

Thanks Yankees, but this is not kevlar.

Help: Maybe it wasn't clear, but I'm asking from the contractor side, not the government, so a protest is not our concern. And getting the answer is a big deal. The fiberglass maker is moving operations to Mexico. Finding another US source for the fiberglass, IF it is required, could be a time-consuming and costly exercise. There is IP involved, both in the fiberglass and the shell formula. Using another source for the fiberglass might require tooling and machinery to be changed as well. These and other changes would be unnecessary if we could be certain that a protective helmet is not clothing. If the helmet manufacturer makes these changes and it turns out they weren't required, then its costs went up for no reason, making the product less competitive. Uncertainty is the biggest enemy of business planning. It would be helpful if there is a government buyer on this forum who has bought protective gear before and can say what he or she did. If not, then yes, this thread will end.

I'm not holding my breath.

The "on the one hand...but on the other hand" arguments are nice for an academic discussion, but it doesn't solve the problem. We're making a product - a firefighter's protective helmet. The fiberglass in the shell will now come from Mexico. Protective clothing and helmets are in FSC 8415. If the helmet is clothing, the helmet and all components must be made in the US. If it is not clothing, the Berry Amendment will not apply. So for the contracting officers out there, what is it? Do you buy this as clothing and require Berry compliance? Or do you not consider this clothing? You represent the government; you apply the laws to your acquisitions and put the applicable clauses in your contracts. We'll do what you say, but we need to know whether it's OK as is, or whether we need to request a DNAD for the non-US fiberglass.

I agree that not everything in the clothing FSCs are clothing. However it does include headgear. In addition, the acquisition of these helmets has been treated as Berry-required for years. Nevertheless, I would welcome it if someone on the government side would weigh in and tell us whether a protective helmet (not a ballistic helmet) is clothing and thus falls under the Berry Amendment..

The research took awhile. I was tempted to do like the Supreme Court and just conclude that Congress didn't really mean "fiber" when it used the word "fiber." However, I dug in to the article and the cases, and concluded as follows: Basically, as applied to non-food products, the Berry Amendment applies in two ways: 1. If the end item is clothing (DFARS 225.7002-1(a)(2)) or individual equipment in FSC 8465 that contains any of the fibers or fabrics listed in 2 below (225.7002-1(a)(10)), then the item and all materials and components must be made in the US. The only exception is things that are not normally associated with clothing, such as sensors, electronics, etc. 2. For the following: cotton or other natural fibers (225.7002-1(a)(4)), woven silk or blends (22507002-1(a)(5)), synthetic fabrics or coated synthetic fabrics and the fibers and yarns used in the fabrics (225.7002-1(a)(7)), canvas products (225-7002-1(a)(8)), and wool, in the form of fiber or yarn or contained in fabrics or materials (225-7002-1(a)(9)), ​These must be made, grown, or processed in the US, whether bought as end items themselves, or as components of end items. An example of the latter is a wooden chair with a fabric seat cushion. The chair does not need to be made in the US because it is not clothing or individual equipment. But the cushion does, because it is a fabric on the list and it is a component of the end item. Short version: any of the listed fabrics and fibers contained in an end item must be made or produced in the US. Any clothing, or individual equipment that contains fabrics or fibers, must be made in the US, AND have all components made in the US. There are also numerous exceptions that are beyond the scope of a short explanation. Now, as applied to the helmet: the helmet is clothing, specifically special purpose clothing. Therefore #1 above applies, and the helmet and all components must be made in the US. The fiberglass is a component of the shell substance, and must be made in the US. It is not any of the fibers from the list, but because it is a component of clothing, it must be produced in the US. Comments, contrary conclusions?

I have that article, and will review it and the other resources today. My recollection though is that they don't get this specific.

Thanks Joel, but I don't think that answers the question. The type of helmet we are concerned with is a personal protective helmet and is not made of kevlar. I'm not even sure whether kevlar contains fiberglass, but I don't know. At any rate, all that the PGI says is that a kevlar helmet is not clothing. The helmet at issue is. What is really need to know is whether the fiberglass that is mixed in the substance to make the helmet is the type of fiber that the Berry Amendment applies to.

Question on the Berry Amendment, the original, not specialty metal. Basically it applies to certain fibers and fabrics in certain categories of products, such as clothing. Question: a helmet is molded from a substance that contains fiberglass. In its liquid state it is poured into a mold to make the helmet. Is the fiberglass used in the substance the type of "fiber" that the Berry Amendment applies to?

Not confused at all. Just looking for opinions on the agency rationale, and whether it has any validity. As for the references: 121.404: this deals with when size is determined. Not really relevant to the issue. 121.406 and 125.6: well yes, that's what the questions are about. I've provided the agency interpretations above. For the record, here are my views. Q1: the NMR applies to any SB that offers a product that it does not itself make. Allowing a SB manufacturer to offer a product made by a LB ignores the NMR. Q2: the LOS applies to each product. The SBA definitions of "cost of manufacturing", "cost of materials" and "subcontracting" at 13 CFR 125.1 make it clear that it applies on a product basis, not the contract as a whole. The FAR uses those terms in the LOS but does not separately define them.

Contractor, although I would think the proper reading of the regs is party-neutral. Q1: does the NMR apply to all SBs, not just distributors, that don't make the product themselves? Q2: does the LOS apply to the contract as a whole, or to each end item?

Don't worry, the facts aren't dribbling out. Same facts as part 1. Just separating the agency rationale to allow for a more focused discussion. Recap: DoD agency has set aside a solicitation as a total small business set-aside. There are 13 line items for different products. For some of them, there is only one known small business manufacturer. In the RFP, the agency has stated that a small business can team with others to offer all products. For the ones it doesn't make, it can get through subcontracts with its team members. It even says the SB can offer products made by a large business, as long as it meets the Limitation on Subcontracting (LOS) rule (FAR 52.219-14; also in SBA regs). Two issues here: First, the agency ignores the non-manufacturer rule (NMR)(FAR 52.219-6 and other places; also in SBA regs and in law itself) for the products the SB doesn't make. It claims the NMR only applies to distributors. Therefore, in its own explanation in the RFP, a SB distributor can only offer products made by SBs, but a SB manufacturer can offer products made by a LB. Second, the agency claims that a SB teaming arrangement only has to comply with the LOS clause and the 50% requirement. However, it applies the 50% to the contract as a whole (i.e. all end items added together) rather than each end item. Therefore the SB prime can include products made by a LB, as long as it stays below 50% of the total contract manufacturing cost. Again, thoughts on agency's analysis?

Scenario: DoD agency has set aside a solicitation as a total small business set-aside. There are 13 line items for different products. For some of them, there is only one known small business manufacturer. FAR 19.502-2( b ) says there must be a reasonable expectation that: "(1) Offers will be obtained from at least two responsible small business concerns offering the products of different small business concerns." The agency has said that even though there is only one manufacturer for some products, they meet the Rule of Two because two small distributors could offer these products, or there could be two small business teaming arrangements offering these products. In either case, the agency reads "the products of different small business concerns" as meaning two offerors, even if they offer products made by the same small manufacturer. This doesn't seem right. Not only does the plain meaning of the words seem to require the products to be made by two different concerns, but allowing products to come from only one manufacturer seems to be a sole source acquisition. Thoughts on the agency interpretation?

No DoD buyers out there?

Any DoD buyers out there? What do you do - do you buy anything from a GSA contract, or do you check first to see if it is in one of the listed FSGs?

Would it be just a matter of putting in a DoD-unique term? After all, it's more of a conflict between DoD and the rest of the government. GSA says that the TAA applies to all products on the schedule, and DoD says it will only apply to some. To make it work, DoD would have to add the correct BAA clause and delete the TAA clause, for items that are not in the listed FSGs.

A somewhat related question: DoD only applies the TAA to the FSGs listed in DFARS Subpart 225.4. What does DoD do if it wants to buy something that is on a GSA contract, but not in one of the listed FSGs? Items on a GSA contract only have to be TAA-compliant, not BAA. Presumably, when DoD buys something that is not in the listed FSGs, it must follow the BAA. Does this prevent DoD from buying non-listed items from a GSA contract?

The call was with the people who sent out the presentation. I have left a message for the POC in the FR notice.

On Nov. 1, a new rule goes into effect that will require contractors to disclose in their SAM registration the name and CAGE Code of an "immediate owner" and a "highest-level owner." Unfortunately, the definitions are not clear and we are trying to decipher them. A large company will have many organisational units such as divisions, branches, business units, etc. (collectively, "divisions"). These divisions are not separate legal entities; their entity is the corporation and the legal contracting entity is the corporation, not the division. A large corporation may also own several subsidiaries. These subsidiaries are separate legal entities, incorporated and registered in a jurisdiction, but their stock is owned by the corporation. The legal contracting entity is the subsidiary. Here's the problem: the rule and the discussion in the Federal Register notice do not make it clear whether the disclosure only applies to separate legal entities such as subsidiaries, or whether it applies to all organisational divisions. One would think that only a separate entity could have an "owner", and the FR discussion suggests it only applies to legal entities. However, the definitions and discussion talk about control as well as ownership. Furthermore, a presentation that DLA sent out talks about management offices and locations as being separate entities. There are other statements in the FR discussion that could support either interpretation. We had a call with DLA to discuss this. At first they didn't understand the distinction. After explaining it to them, they claimed to understand the problem and told us they would get back to us. They have been silent since. Nov. 1 is approaching, and we need to put out clear guidance to all of our SAM registrations. Do we have anyone here from DLA who can explain what the rule applies to? If not, I'm interested in the opinions of this forum.

So let me see if I have this straight. Subpart 225.75 (the BOPP) says to acquire domestic end products for use outside the US. One of the exceptions then says, UNLESS the acquisition is covered by the World Trade Organization Government Procurement Agreement (WTO GPA). The WTO GTA applies to procurements over $204k. However, DoD only applies it to the FSGs listed at 225.401-70 (which of course is not mentioned in 225.75). Since the products here are not in the listed FSGs, the WTO GPA will not apply, so DoD must acquire a domestic end product, unless a another exception applies. Under 225.7501(b )(iv), it looks like one exception allows the agency to apply the price evaluation factor of 50% like under the BAA. BTW, under 225.7501(b )(i) and (ii), it looks like the agency can also accept qualifying country end products and eligible country end products, if they are the low offer. Of course, eligible countries are trade agreement countries, and DoD only applies the trade agreements to the listed FSGs, but that's not mentioned here. I guess under the BOPP that's OK. It would not be the only example of convoluted logic in the BAA/TAA regime.

Questions on the Buy American Act and Trade Agreements Act usually don't get many responses, but I figured I would try. Scenario: DoD solicitation for products that will be used outside the US. Contract value will be over the TAA threshold. My conclusion is that neither the BAA nor TAA will apply to it, and I need a sanity check on it. Here's how I arrived at my conclusion. 1. The BAA does not apply outside the US. 2. DoD only applies the TAA to products in the Federal Supply Groups (FSGs) listed in DFARS Subpart 225.4. 3. These products are not in any of the listed FSGs. 4. When the TAA does not apply, you go back to the BAA. 5. Since the products will be used outside the US, the BAA does not apply. Therefore, neither the TAA nor BAA applies. Any flaws in that reasoning?

Thanks Desperado. Since that whole paragraph starts with "if", I read it as saying that if the reseller does have significant sales to the public, the rest of the paragraph would not apply. In other words. no need to get a CSP from manufacturer.