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NenaLenz

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  1. Thank you for your help on this. I have what I need. This thread ended up heading in the same direction of a prior thread on the topic.
  2. @Retreadfed, you're right -- that is a complicated analysis that requires broad expertise and inappropriate for this forum. For the purpose of this discussion, my question is limited to how accepting/performing federal work orders would impact an affiliate. If we forgo formal subcontracts, wouldn't the affiliates then be viewed as part of the "prime contractor" and be subject to the prime contractor's obligations?
  3. Fortunately, my choice of the word "subcontract" in the original post was inaccurate - the company is currently using work orders to facilitate this work. There are no formal subcontracts at this time. I am trying to help them figure out the compliance obligations on the contract holder and affiliates performing the work. Originally, I was thinking subcontracts were a good idea, but it sounds like executing formal subcontracts may be ill advised. My concern with not using subcontracts is that the compliance obligations that apply to the contract holder would then also apply to all performing affiliates without the "flow down" filter/buffer that insulates subcontractors from many prime contractor obligations. Does that make sense? For example, not all affiliates need affirmative action plans at this point. Would the use of a "make program" somehow trigger AAP obligations for all affiliates under the parent? Or just the ones accepting/performing work orders that trigger the requirements? (Again, the concept of a "make program" is new to me, so these may be rather simple questions. I appreciate any wisdom this group can offer.)
  4. I like this conclusion. But I am new to the "make" versus "buy" concepts. Does the concept of a "make program" impact the entire enterprise? Does this pull the whole network of affiliated entities under contractual compliance requirements? For example - How do we decide which affiliates must have affirmative action plans? I would greatly appreciate any general guidance on make/buy you can offer.
  5. Good suggestion. Did not find clarity there.
  6. Would you report the subcontracts themselves, though?
  7. Is there any reason that subcontracts to affiliates would not be reportable under FAR 52.204-10? (Assuming all other reporting thresholds are met). I ask because subcontracts to affiliates are not reportable on eSRS per FAR 52.219-9(l) "(l) The Contractor shall submit ISRs and SSRs using the web-based eSRS at http://www.esrs.gov. Purchases from a corporation, company, or subdivision that is an affiliate of the Contractor or subcontractor are not included in these reports. Subcontract awards by affiliates shall be treated as subcontract awards by the Contractor. Subcontract award data reported by the Contractor and subcontractors shall be limited to awards made to their immediate next-tier subcontractors." I do not see any similar caveat to the FSRS requirement. Do you? FYI - Under 52.304-10, “First-tier subcontract” "means a subcontract awarded directly by the Contractor for the purpose of acquiring supplies or services (including construction) for performance of a prime contract." Thanks for your insight.
  8. @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.
  9. 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.
  10. @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.
  11. This is incredibly helpful! That you all for weighing in. ... Now to help my client design a new compliance protocol and amend some subcontracts ....
  12. 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.
  13. 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?
  14. 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?"
  15. 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.
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