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StePa

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  1. @here_2_help Those were my thoughts exactly and what the DCMA rep told me as well. It seems to be a case of a prime trying to bully a sub into accepting an order for either (a) keeping the price low, (b) ensuring the parts are delivered on time or (c) both. From what @Neil Roberts has stated, it seems like 700.13(c)(1) is the best citation. Just wanted to confirm my thoughts and it seems everyone does agree with me. Thanks all.
  2. Hello Neil. The Sub has a contract with the prime for several parts. This particular part was not listed on the contract with a price. The part was listed as "quote". Prime asked for quote, sub quoted a price for x quantity. Prime submitted rated order for parts at random price which is lower than quoted price. They took a stance that sub must accept rated order regardless of the dispute in pricing. Sub disagrees. Value of the transaction is not in excess of TINA threshold and exception exists if it did. (commercial item). The language "terms of sale" in (c)(1) was what was undefined for me. Whether pricing is included in the terms of sale as defined in (c)(1) was unclear so I did not want to rely on it. I also spoke to someone from DCMA who said (c)(1) wouldn't apply..which confused me but I accepted.
  3. @ji20874 If the prime would make the correction, this would work. They refuse to though. @Neil Roberts Thanks Neil. My concern was that 700.13 outlines acceptance and rejection of rated orders and I wasn't sure if the sub fell under any of the "optional rejections" outlined in subsection (c). I agree with you that non acceptance is the right step but wasn't sure if the regs back us up somewhere.
  4. Hello all, Just putting this topic here because I saw a former topic here. (Apologies if it is the incorrect section) It is similar in nature to this thread. In my scenario though, sub has received a rated order. Prime has put the incorrect price (of course, lower) and sub is rejecting the notion of accepting the order as the prime has put incorrect pricing on the order. Prime is arguing that sub MUST accept the rated order and disputes on price can be made at a later date as the sub performs the contract. I have looked at 15 CFR 700. 700.13(c) (1) (under Optional rejection) does not seem it would apply in this case. "If the person placing the order is unwilling or unable to meet regularly established terms of sale or payment;" at least according to person I spoke with at the DCMA. The person did mention that incorrect pricing is a valid argument for not accepting the rated order but could not cite anything. I was hoping anyone here has experience in a similar fact pattern and could advise. I still think that 700.13(c)(1) could be argued to reject the rated order as regularly established terms of sale should include agreement on pricing/payment. Thanks again everyone. Feel free to ask me to clarify or provide further details.
  5. From what I can gather then.. NDAs are the preferred industry "best practice" for this particular scenario as no other suggestions have been made. I just wanted to make sure I wasn't missing other steps we could take to protect the data. Thanks all.
  6. @Neil Roberts Reviewed the clause cited and believe it is only applicable to computer software. I did read the equivalent in 252-227-7013(k)(5). I understand that the Prime has an obligation but that does not mean that the sub cannot use any and all means to ensure their data is protected. I just wasn't sure if there is any other methods out there to protect the data in lieu of another NDA.
  7. @Neil Roberts Thanks Neil I will read #1. @Retreadfed I am unaware of what the full CDRL will contain but it should be subject to a patent (existing) while some of the data would be subject to copyright. (mostly data that is readily available to the public) The copyrighted data would not really concern us as it's already out there. The data which is subject to a patent and is considered a trade secret/ proprietary is where our senior execs are concerned.
  8. Sorry about the confusion. So, in this situation, yes the prime is asking for our permission to remove our proprietary markings when the prime submits the data to the USG. From my reading and understanding of DFARS 252.227-7013(h), if we did not give the prime the permission and they submitted the data, our proprietary marking could be removed as being nonconforming. In order to avoid this situation, I believe it best to give permission but also negotiate/ dictate the terms of the prime removing the markings. So I guess my question is: What are the best industry practices to ensure the data is protected by both the prime and USG when proprietary markings are removed? From my understand, DRA Table and proper markings should be enough for the USG. Not sure if there is an best practice for the prime though. I read in NCMA 2012 presentation (would've linked it but unfortunately, cannot find the link) that we should move for a revised NDA. I was wondering if other practices were out there to gauge which would be best.
  9. Hi all, Background: Prime has given us a set of instructions on how Data Rights should be asserted/marked, etc for a contract. DFARS 252.227-7013 (instructions on how to mark GPR, LR, etc) . They include a note that we (the sub) have to give permission to remove our proprietary markings for submission the USG. We are asserting limited /unlimited rights on the technical data. From my reading of the clause, I understand the regulations are clear on what can or can not be marked when submitting to the USG. Question: What are the best ways to protect our limited rights data from both the prime/ USG if we have to give permission to the prime to remove our proprietary markings? I've done some research with some mentioning that a specific NDA should be signed to address these things and specifying that the prime must assert the same limited rights statement on their submission as the original. I just wanted to pick everyones' brains and see if others have dealt with this in different manners or if they even see it as an issue? Senior management is pushing that we push back, not give our explicit permission and inform them that they can notify us if any data with limited rights asserted will be needed to submit to the USG and we would give our written permission once evaluating the request. Would you say that's a standard approach as well? Just trying to see if there is an industry standard on how this is addressed. Thanks in advance.
  10. Apologies all. I am unsure if the Prime contract is commercial. My reference was to the subcontract aka our contract with the prime being commercial. StePa is just a shorter version of my first and last name @Neil Roberts . Sorry for the confusion. Thanks for the links Don. I will read up on them before adding anything else. Thank you everyone for contributing so far.
  11. Apologies. I accidentally quoted Subsection (e) from 252.246-7008 instead of 7007. Thank you for the assistance!
  12. Hello, they have quoted the clause in the Purchase Order. We have not accepted it. My understanding is that they are required to include it in all their contracts but I am unsure if we are required to comply when I read it even if it is on the PO (subcontract).
  13. Hello I was reading the above DFARS clause and am struggling to figure out if this would apply to a contract ( I am a subcontractor). The clause starts with: " "The following paragraphs (a) through (e) of this clause do not apply unless the Contractor is subject to the Cost Accounting Standards under 41 U.S.C. chapter 15, as implemented in regulations found at 48 CFR 9903.201-1." The contract would be FFP contract for commercial items. It is my understanding that if commercial items are involved, you are exempt from CAS. This originally would lead me to believe that paragraphs a through e would not apply. I read the rest of the clause to be thorough and ran into paragraph (e) for subcontracts. "The Contractor shall include the substance of this clause, including this paragraph (e), in subcontracts, including subcontracts for commercial items, that are for electronic parts or assemblies containing electronic parts, unless the subcontractor is the original manufacturer." I believe I should be reading this as this DFARS clause is applicable to us because our prime is subject to the CAS but we are not required to flow down to our subs. Is this a correct reading? Or..should I be reading this as, this is not applicable to us as I should be reading this as not applicable per the first quoted line? Thank you
  14. @jayandstacey @Loul Thanks for your feedback/suggestions.
  15. @Retreadfed @here_2_help Thanks. I had assumed this as well but they all mentioned they had some presentation by a law firm years ago which included something about it. Of course, the presentation and slides are no where to be found and my senior leadership can't recall which firm gave that presentation. Thanks again everyone for your input.
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