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NenaLenz

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  1. @Vern Edwards I think you're selling everyone short in this comment. The frequent Wifcon posters, particularly those engaged in this thread (@Don Mansfield, @C Culham, @joel hoffman, and @ji20874) are a wonderful resource for practitioners of all stripes, including lawyers. The collective breadth and depth of regulatory knowledge within this community is exceptional. After all, you find "discussion, debate and bickering" over federal contracting regulations to be fun. As to whether it is appropriate for lawyers to consult this community when providing counsel to clients -- Even seasoned lawyers conduct legal research to answer client questions -- especially practitioners in complex and dynamic areas of law, such as government contracts. Two important steps in legal research are to figure out: (1) which rules apply in a given situation and (2) what do regulators think those rules require. This community is a good source for that. Although I don't always agree with the conclusions here, I find this community to be an incredibly useful place to help with legal research. And you're right that advice given here is really just a starting point. But it is a good starting point.
  2. It has a paragraph listing what clauses are not applicable to order level materials. TAA is not listed. Further clarification that Yes -TAA does apply to replacement parts supplied under maintenance contract. To put an even finer point on this conclusion, see the GSAM 538.7203(b) . . . . 538.7203 Administering Order-Level Materials in FSS contracts. (b) Except as stated in 552.238-82 (d)(10)(11), all terms and conditions that otherwise apply to the FSS contract also apply to order-level materials. For example, order-level materials must comply with the Trade Agreements Act clauses, the Environmental Attributes clause, and the Industrial Funding Fee and Sales Reporting clauses.
  3. @Vern Edwards - I rely on the Customs and Border Protection decisions and cases in the Court of International Trade for TAA country of origin guidance. Customs and CIT have the authority to make country of origin determinations for TAA purposes. To find lines of cases that speak to what is an end product, search for "substantial transformation" analyses. When examining whether a product complies with TAA, CBP first decides which product is subject to the requirement -- and that requires determining which product is the end product. The country of origin is where that end product was last "substantially transformed". The specific facts matter in each case, so the decisions are hard to analogize to other situations, but here is a quick rundown of factors that inform whether something will be considered an "end product" and thus subject to the TAA country of origin requirements. There's a lot of discussion about systems as end products when products are purchased together: Whether the parts are directly incorporated into the system. The more the part is directly integrated into the “system,” the more likely it is found to be a component, rather than an end product. The purpose of the government solicitation. If the purpose of the solicitation is to obtain a single system, the government will consider whether the purpose of the solicitation is met only by a combination of parts, or if the parts, in isolation, meet that same purpose in some meaningful way. If the parts do not achieve the government’s purpose in a meaningful way, they are more likely to be viewed as components. The language of the solicitation. Even if the language does not expressly explain which contract items are end products, the solicitation language may be useful in determining the purpose of the procurement. The usefulness of the system parts in isolation. If a contract item has no use except as an integrated feature of the system, the item is more likely to be viewed as a component. Whether the parts are available for individual purchase as replacement parts. If a contractor offers contract items for sale as replacement or ancillary items, the items are more likely to be considered end products than components.
  4. This is incredibly helpful! That you all for weighing in. ... Now to help my client design a new compliance protocol and amend some subcontracts ....
  5. That is how I have always interpreted it, and I believe (but do not have on hand) some good case law and other guidance documents on point re: CLINs as end products. (Happy to find them if someone really wants to see them). The key here is whether the materials listed in the repair task orders amount to CLINs for end product purposes.
  6. Thanks for all the thoughtful responses. I frequently provide legal counsel re TAA & BAA compliance, but clarity on this one is elusive, so I appreciate your insights. The OP is on my team. Allow me to add some details - Client is on GSA Schedule 03FAC (facilities maintenance services). The contract CLINS are all for services. DOD BPA says: "Contractor is to provide all work, materials, and labor required to provide inspection, testing and maintenance . . in accordance with the statement of work, amendments and proposal". The statement of work contemplates "minor repair work", but does not include any mention of materials. Work Order. After inspections indicate a need for minor repair work, contractor submits quote to DOD for the repair work. This is usually done via email (both quote submission and approval by DOD). Quote includes labor and materials priced separately. Materials are sometimes referred to generally as "materials" and sometimes by specific description. These work orders are issued under the GSA Schedule and DoD BPA T&Cs, but they do not reference those agreements in any way. In the definition of end product, I am wrestling with the meaning of "for public use". Here, the materials are installed in government buildings. They become part of the fixtures. Is that sufficient to be "for public use"? I guess the answer to this depends on what we are calling the "contract schedule". The replacement parts are not identified in DOD BPA schedule specifically, although the schedule says the contractor must provide the materials needed for repair. The replacement parts are clearly and separately priced as materials v. labor on the repair work orders. What do you think?
  7. Thanks, @Don Mansfield. We looked hard to find this answer before putting it out to the group. As compliance counsel to the contractor, I get nervous when I cannot find authority to justify my conclusion that a reg doesn't apply. In this case, we don't want to ask the CO because the contractor has been operating as if TAA doesn't apply here. But they just asked the question: "are we right?"
  8. Great. Thanks, @ji20874. To confirm - for the purpose of this analysis, it does not matter whether the contractor charges the government separately for the repair parts.
  9. @ji20874 thanks for the input. I like your conclusion, and want to make sure I'm following the logic. [Let's set aside any discussion of BAA/TAA distinction for the time being] Because this is a contract for inspection/maintenance/minor repair, it is 100% for services. If inspection indicates minor repair/maintenance is required, then the contractor will purchase the necessary materials, install them on government fixtures and charge the government for the parts. Because the materials are used in repair work, they are not supplies that are furnished to the government. On the other hand, the following is an example of a contract for supplies and services: government purchases replacement parts as individual CLINS and repair services under separate CLINS on the same contract. In that case, the replacement parts would be subject to BAA/TAA requirements.
  10. @ji20874 I think the question is: what qualifies as an "end product" in this situation. If the Contractor must repair a pipe, and repair requires a pipe fitter to install replacement parts on the existing equipment, are those replacement parts end products? Does it make a difference whether the replacement part is specifically listed and priced on the work order? This seems like it could be an end product within the scope of TAA -- but that casts a really broad definition of end product.
  11. @REA'n Maker Good questions. I don't think this would qualify for an upgrade, and it's not part of a larger effort to overhaul existing systems. The inventory is in the sustainment stage, as you put it. And it is accurate to say "replacing" items with a similar (currently available) capability. Sounds like DLA where we need to go . . . .
  12. That makes a lot of sense. Can you think of any similar kinds of government-wide upgrades? It would be helpful to show folks a model
  13. Good tip. I think the hardware in this instance will evolve and remain in use for the foreseeable future.
  14. @Vern Edwards Thanks for the typo correction. Yes, it's 7012. Agreed on your statements of general contract breach risks to late reporting. I am not seeing any consequences specific or unique to late reporting. It sounds like there aren't any.
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