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Lionel Hutz

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  1. Aaaaaand we're back on... https://www.govexec.com/workforce/2022/04/appeals-court-reinstates-bidens-vaccine-mandate-federal-employees/365413/
  2. The language you quoted does not support your first statement. The UN designates countries as LDCs. The USTR then may select countries off of the UN's list to make them eligible countries under the TAA. If the USTR does not designate an LDC under the TAA, it is still a designated UN LDC, it just does not get the benefit of being an eligible country under the TAA. Now, if you want to revise your statement to say that the authority to designate an LDC as a designated country under the TAA comes from the TAA, then yes, I agree with you. Also, I think you have misconstrued my previous statement. I stated that if the "waiver authority" of the TAA (i.e., 19 U.S.C. § 2511(a)) were struck down, 52.225-11 would not be affected. The authority to designate an LDC as a designated country (19 U.S.C. § 2511(b)) is separate from the waiver authority and also affects the TAA's "Authority to bar procurement from non-designated countries." 19 U.S.C. § 2512(a)(1)(A)(i). The BAA (41 U.S.C. § 8303(b)(1)(B)) expressly incorporates into its waiver the list of LDCs designated under the TAA and listed at FAR 25.4. So, if the TAA designation authority were struck down, and there were no more TAA designated LDC's, then I'm sure FAR 25.4 and 52.225-11 would be amended to remove the list of countries. But, in the end, the clause relies on the BAA, not the TAA, for its authority to waive the list of countries at 25.4. In my opinion, referring to a list of TAA designated countries (as directed by the BAA) is not "implementing" the TAA. Don, it is unclear to me what your position is. Are you saying that 52.225-11 only implements the TAA? Or, are you saying it implements both the TAA and the BAA at the same time? If it is the latter, how do you account for the fact that the TAA and BAA have different tests to determine whether a material is foreign or domestic? The TAA uses a substantial transformation test, while the BAA has a component cost percentage test. There are situations in which material could be domestic under the BAA but foreign under the TAA, and vice versa. How would that work under a clause implementing both statutes? I'd note that 52.225-11 implements the BAA's component test.
  3. No. The UN designates countries as LDCs. (https://unctad.org/topic/least-developed-countries/recognition) See also the definition of LDCs in the TAA: "The term 'least developed country' means any country on the United Nations General Assembly list of least developed countries." 19 U.S.C. § 2518(6).
  4. No. The BAA states it does not apply to any articles, materials, or supplies procured pursuant to a least developed country designation. 41 U.S.C. § 8303(b)(1)(B). So, even if the TAA no longer excepted materials from least developed countries, the BAA still has its own exception that applies.
  5. Yes it does. I don't support a broad interpretation of 25.401(a)(1). I do not think FAR 52.225-11 is attempting to implement 25.401(a)(1).
  6. Yes, it implements the trade agreements listed. The clause even has Alt 1 that accounts for acquisitions that exceed most of the agreement thresholds, but not all of them. The BAA allows the government to waive its application if the price of foreign construction material is unreasonable. This is implemented in the clause (paragraphs (b)(4), (c ), and (d)) by allowing the contractor to submit evidence that the cost of domestic construction materials exceeds the cost of foreign material by more than 20 percent. The KO can then add that domestic construction material to the list of materials to which the BAA requirements do not apply. (Paragraph (b)(4).) The Trade Agreements Act does not provide for a waiver based on “unreasonable cost.” If the clause were implementing the TAA, it would say the contractor is required to provide domestic or designated country construction materials, with the only exception being a KO determination that there were no offers for such products or that the offers for those products are insufficient to fulfill the requirements of this solicitation. See, e.g., FAR 52.225-5(b) and FAR 52.225-6(c).
  7. Yes, it implements the BAA, which has provisions to account for the WTOGPA. And the WTOGPA is listed in FAR 25.400.
  8. No, it does not. FAR 25.401(a)(1) exempts small business set-asides from the applicability of FAR Subpart 25.4. FAR Subpart 25.4 contains regulations that implement the Trade Agreements ACT. An acquisition can be outside the scope of Subpart 25.4 and yet still be covered by other laws, such as the BAA, that ALSO have provisions that deal with the WTOGPA. Each statutory authority stands on its own. Conceivably, you could have 10 different statutes that implement portions of a trade agreement. Or perhaps its the other way around and the one trade agreement addresses the requirements of 10 different statutes. Either way, if one of those statutes and its implementing regs says it does not apply to a subset of acquisitions, that does not mean the other 9 also do not apply.
  9. One thing that I think will help people see the difference is that the BAA’s restrictions and waiver for designated countries is different than the TAA’s waiver and restrictions. First, let’s look at the BAA-Construction Materials as implemented in 52.225-9, which provides that contractors may not provide foreign construction material unless the Government (i.e., the KO) determines that an exception to the Buy American statute applies. Among others, there are exceptions for COTS construction materials, information technology, and foreign construction material excepted by the KO. The KO can except construction material if the “cost of domestic construction material would be unreasonable.” The clause the states that the cost is unreasonable if the domestic material exceeds the cost of foreign material by more than 20 percent, and it allows the contractor to submit data to support the determination and exception. 52.225-11 is similar but adds the exception that if the value of the acquisition exceeds the WTOGPA threshold, then the domestic restriction is waived, but only for designated country construction materials. In other words, you treat domestic and designated country materials equally. But, the agency can still purchase foreign materials if the contractor demonstrates the cost of domestic or designated country material exceeds the cost of foreign material be more than 20 percent. Now, let’s look at the Trade Agreements Act. In general, when applicable the TAA does two things: (1) It waives the BAA, and (2) It imposes its own purchase restrictions. The first thing to note is that the TAA waiver is similar to the BAA waiver in that it requires designated country products to be treated the same as domestic products. But, as implemented under the FAR, the TAA does not waive the BAA when the contract has been set aside for small businesses, a significant difference. In addition, the TAA purchase restriction is different. As implemented in FAR 25.403, it states that only U.S.-made or designated country end products or services may be purchased unless such end products or services are either not received or are insufficient to fulfill the requirements. There is no exception in the TAA or FAR Subpart 25.4 that allows you to purchase foreign construction material based on an “unreasonable cost” determination. Further, the manner in which you determine whether an article is domestic/US-Made vs designated country vs foreign is different between the BAA and TAA. This is why you cannot have one clause implementing both the BAA and the TAA. They have different and conflicting requirements. As a law firm noted in this article, “where the TAA applies, the BAA does not apply.” The BAA and TAA are similar in many ways and there is overlap in their subject matter coverage. If different regulations had been promulgated, the line differentiating the application of the two could have been different. But, as practitioners, KOs should follow the line that has been established by the applicable regs and follow the clause prescriptions.
  10. You follow the clause prescription - "Insert the clause at 52.225-11, Buy American-Construction Materials under Trade Agreements, in solicitations and contracts for construction that is performed in the United States valued at $7,032,000 or more." That dollar value in the prescription changes to match the WTOGPA threshold. So, it will only be used to apply the BAA to construction contracts that are covered by the WTOGPA, i.e., "Construction Materials under Trade Agreements." You are not using that clause because 25.4 applies. You are using that clause because the BAA itself has a waiver for construction materials purchased under trade agreements and 52.225-11 implements the BAA restrictions and applicable waiver. Yes, you use the clause for small business set-asides because the BAA applies to small business set-aside contracts. If the value of the contract is below the threshold, you follow the applicable prescription - "Insert the clause at 52.225-9, Buy American-Construction Materials, in solicitations and contracts for construction that is performed in the United States valued at less than $7,032,000."
  11. I'm saying FAR 52.225-11 implements the BAA as applied to construction contracts that exceed the applicable WTOGPA threshold.
  12. 52.225-11 There is a difference between trade agreements and the Trade Agreements Act. Trade agreements can be implemented in a number of different ways. The TAA is one of them. However, trade agreements can also be implemented under the BAA. The BAA (at 41 U.S.C. 8303) provides that construction contracts must use domestic construction materials. However, it also provides as an exception the following: "This section does not apply - ... (B) to any articles, materials, or supplies procured pursuant to a reciprocal defense procurement memorandum of understanding (as described in section 8304), or a trade agreement or least developed country designation described in subpart 25.400 of the Federal Acquisition Regulation." If you look at the language of 52.225-11, it states, "In addition, the Contracting Officer has determined that the WTO GPA and Free Trade Agreements (FTAs) apply to this acquisition. Therefore, the Buy American restrictions are waived for designated country construction materials." The BAA itself allows for the exception found in the WTO GPA, and the clause then implements that exception in the contract. If the Supreme Court struck down the waiver authority of the TAA, clause 52.225-11 would not need to be changed as it does not rely on TAA authority. As for why there is not a separate TAA clause for construction, I would ask why would there need to be? The BAA itself waives the restriction, and the existing clause implements the requirements of applicable trade agreements.
  13. I agree a KO should comply with the FAR clause prescription as well. We are in agreement all around.
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