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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.
  14. The TAA only “does” 2 things: 1) It authorizes the president to waive the BAA, (19 U.S.C. § 2511), and 2) It imposes its own set of restrictions by authorizing the president to bar procurement from non-designated countries. (19 U.S.C. § 2512(a)) Everything else are the details about how that happens and various exceptions. 24.402(a)(1) is the FAR implementation of the waiver of the BAA’s requirements. 25.403(c) is the FAR implementation of the TAA baring procurements from non-designated countries. So, when FAR 25.401(a)(1) states that that entire subpart 25.4 (including the two provisions I highlighted above) does not apply to small business set-asides, it is saying that the regulations that implement the TAA’s waiver and restrictions do not apply. You say “that’s it” as if that is not a lot. But, that is literally everything the TAA does. I agree. If all we are doing is looking at FAR 25.1102 and FAR Clause 52.225-11, which was the original question, then there is no need to worry about FAR 25.401(a)(1). FAR Clause 52.225-11 implements BAA requirements and waivers under BAA authority. It has nothing to do with the TAA or FAR 25.401(a)(1). This what I said last night. Don suggested the clause could implement both the TAA and the BAA. I disagree. The clause only references the BAA and the language of the clause directly calls back to the BAA statute and BAA regulations in Subpart 25.2.
  15. Well, Vern clearly did a deeper and more comprehensive dive than I did. But, to answer your specific question here, I will just note that the TAA does not require agencies to waive the restrictions of the BAA. Rather, the TAA authorizes the president to waive all discriminatory purchasing requirements, including the BAA but not small business or minority restrictions, that affect eligible products. FAR Subpart 25.4 implements the TAA, and it states it does not apply to small business set-asides. However, there is nothing prohibiting the government from relying on different statutory authority to waive all or part of the BAA. And, in this case, the BAA itself authorizes the government to waive its requirements in some circumstances. See 41 U.S.C. § 8303(b)(3). This is an authority separate and apart from the TAA waiver authority. If you look at the text of 52.225-11, you will see the exceptions that it authorizes are based on the waiver language of the BAA statute and the exceptions listed at FAR 25.202, which is in Subpart 25.2 - Buy American-Construction Materials.
  16. I think I have the beginning of a solution. But, it is late in the day, and I don't have the time or brain power to follow all the threads. But, if someone else wants to, have at it. Otherwise, I may give it another look tomorrow. Subpart 25.4 primarily deals with the application of the Trade Agreements Act (19 U.S. Code Chapter 13). The Trade Agreements Act does not apply to small business set asides (19 U.S.C. § 2511(f)), and so that exception is properly noted at FAR 25.401(a)(1). Why then would FAR 25.1102 not include the TAA exception for small businesses? Well, despite the fact that 52.225-11 has the words Trade Agreements in its name, it is not implementing the Trade Agreements Act. The clause expressly states, "This clause implements 41 U.S.C. chapter 83, Buy American, by providing a preference for domestic construction material." So, 25.1102 is implementing provisions of the Buy American Act, which does apply to small business set asides. That is why there is no exception.
  17. To follow up on Vern's comment, the total evaluated price must reflect the expected cost to the government. Simply comparing unit pricing, or allowing offerors to submit unrealistic estimated quantities, will run the risk of producing a misleading result. See for example the protest of R&G Food Service, Inc., d/b/a Port-A-Pit Catering, B-296435.4; B-296435.9, which states:
  18. Rather than requiring specific people, why not establish minimum requirements to fill the position? When you evaluate key personnel, what is it that you are looking for? If the important thing is that the key personnel have at least a 4 year college degree, 10 years of experience in a field, and 3 years experience with certain equipment, then make those the minimum contract requirements. Then, even if the identified person leaves, the replacement will have the qualifications you want. If you want to make some sort of trade off in the evaluation and pay more for a more qualified candidate state that you will incorporate the qualifications of the identified key personnel into the awarded contract which must be met by any replacement. This, in combination with the DFARS clause listed by Neil (or similar language if not DOD) would seem to cover the matter.
  19. If you work for DoD, take a look at Force Health Protection Guidance (Supplement23) Revision 3, Attachment 8, 20 December 2021. It may be applicable to your situation.
  20. When deobligating funds and closing out a contract, unless the government is making a payment or waiving some contractual requirement as consideration for the release of claims, the government will have a hard time enforcing any release signed by the contractor. See, e.g., Supply & Service Team GmbH, ASBCA No. 59630 (March 1, 2017), ("Moreover, SST received nothing from the government from its agreement to sign these de-obligation modifications, which means that that they lacked consideration and they could not be deemed to be binding upon SST in any event.") I know that doesn't answer your question and you will have supervisors and policy memos that tell you to try to get a "bilateral" mod to deobligated funding. But, from an enforceability standpoint, they are both administrative actions/notifications by the government that are not binding on the contractor. It's just that in some cases you get the contractor to acknowledge that you have deobligated funding, and in other cases you don't.
  21. You've received good advice. I'll just add one more thing for application of this and other E.O.s in the future - make sure you are using and interpreting the correct terminology. You've asked whether contractors whose contract period of performance have expired are "still incumbents." Incumbent means, "holding an indicated position, role, office, etc., currently." This has led to your question. Is a company, whose contract period of performance has expired, considered an incumbent, i.e., current, contract holder? However, the word incumbent does not appear anywhere in the E.O. Rather, the order states, "When a service contract expires, and a follow-on contract is awarded for the same or similar services, the Federal Government’s procurement interests in economy and efficiency are best served when the successor contractor or subcontractor hires the predecessor’s employees, thus avoiding displacement of these employees." (Emphasis added.) It then directs inclusion of a clause in solicitations, contracts and subcontracts for services "that succeed a contract for performance of the same or similar work." In part, the clause requires the contractor to provide the contracting officer with a list of names of contractor employees working during the last month of contract performance. So, there is no requirement that there be uninterrupted service, only that the contracting officer determine that the contract is a follow-on for same or similar services. Barring guidance from the FAR Council or agency regulations, I would expect such a determination to be made on a case by case basis within the discretion of the contracting officer, subject to a protest that the determination is unreasonable. Also, keep in mind that unless the existing (or recently completed) contract has a clause requiring the contractor to provide a list of names, the government might not have a list of contractor employees to give to the successor contractor, and the existing contractor is under no obligation to provide the information.
  22. Two interesting (to me) points from the opinion: (1) While the court enjoined the vaccine mandate, the injunction stated that the OMB Determination and FAR Council Guidance likely complied with the APA and 41 U.S.C. § 1707, stating "Although the procedural path taken by the agencies was, at times, inartful and a bit clumsy, the Court finds based on the record before it that the Defendants likely followed the procedures required by statute." (2) The court found the EO exceeded the president's authority under the FPASA stating, "FPASA’s goal is to create an 'economical and efficient system for…procurement and supply.' Kahn, 618 F.2d at 788 (emphasis added). While the statute grants to the president great discretion, it strains credulity that Congress intended the FPASA, a procurement statute, to be the basis for promulgating a public health measure such as mandatory vaccination." It also states, "neither OSHA nor the executive branch is permitted to exercise statutory authority it does not have.... In this case, the FPASA was enacted to promote an economical and efficient procurement system, and the Defendants cannot point to a single instance when the statute has been used to promulgate such a wide and sweeping public health regulation as mandatory vaccination for all federal contractors and subcontractors." In other words, FPASA is a statute aimed at promoting economical and efficient procurement system, and the E.O.'s vaccine mandate is a "public health regulation" that exceeds the scope and purpose of the statute. However, later in the opinion, the court rejected the plaintiff's argument that improving procurement efficiency was pretextual and stated, "the subsequent OMB Determination provided ample support for the premise that a vaccine mandate will improve procurement efficiency." Putting these two points together, the Court seems to be saying that the the government has offered ample support that a vaccine mandate will improve procurement efficiency (which meets the intent and scope of FPASA) and that the government likely followed the administrative procedures required by statute to implement the mandate. However, because the mandate ALSO involves implementing public health measures, the mandate exceeds the government's authority under the FPASA. I think the Court's statement that "Defendants cannot point to a single instance when [FPASA] has been used to promulgate such a wide and sweeping public health regulation as mandatory vaccination for all federal contractors and subcontractors," is a red herring. FPASA was passed in 1949. How many global pandemics have we faced since that time? The lack of examples has less to do with the scope and authority of FPASA and more to do with the lack of a public health emergency that could even rise to the level of potentially impacting procurement efficiency. I make no prediction as to the final outcome. But I am interested to see if an appellate court will find that an E.O. issued under and facially compliant with FPASA exceeds the scope of FPASA because it also involves matters of public health.
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