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Tzarina of Compliance

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  1. Thanks, Vern. So since the two definitions are similar but different, would you say that contracts to "furnish supplies or services for performance of the prime contract" and "agreements calling for supplies or services required for performance of the prime contract" mean different things? One is carrying out part of the scope and the other means anything purchased to carry out scope? I am not an expert in nuances of this and I am having a disagreement on interpretation of what could be counted towards small business participation.
  2. Question which may have been answered here but I can not find, so grateful for any redirection. When creating or reporting on small business utilization under FAR 52.219-9 individual plan for each contract, what is considered a subcontract? The definition in FAR 52.219-9 states that Subcontract means any agreement (other than one involving an employer-employee relationship) entered into by a Federal Government prime Contractor calling for supplies or services required for performance of the contract or subcontract. FAR 44 defines Subcontract means any contract as defined in subpart 2.1 entered into by a subcontractor to furnish supplies or services for performance of a prime contract or a subcontract. It includes but is not limited to purchase orders, and changes and modifications to purchase orders. Does this mean that only subcontracts (as defined in FAR 44) are counted towards the SB goals or "any agreements", including auxiliary services and goods procured by the Prime which are not specifically required in the performance of the scope (e.g. purchase of supplies, use of travel agents for airline tickets, hotels, legal services to help interpret labor law in a specific jurisdiction where the contract is performed etc)? FAR 52.19-9 allows inclusion of portions of subcontracts allocated to indirect pools which contribute to performance to be counted, so presumably this means that such "subcontracts" are not the same as FAR 44 subcontracts requiring consent, flow downs etc. Anyone has any thoughts on this?
  3. Contractor prevailed and rightly so. So we had to do a J&A, new period of performance and new fixed fee as I thought we would. You all rock! I love this place.
  4. Yep.... I like discretion, provided it is not abused to avoid a more complicated but better solution. In my world, the work is almost proportionally overseas and not overseas under the same contract, and there are plenty of small businesses who want and can do it, so technically I should be doing market research and then setting-aside in every case that FAR 19 tells me to.... but the pressure form the "big" guys is for me to use "discretion" not to set aside, because they do not want smalls getting the work and then growing to compete with them. And, no, the contract does not require it to be done one way or another (in or out of US), it just has to be done. But more importantly, why should it matter where the performance is if there are two (or many more) US small businesses who can do it? Isn't this the whole idea? Wouldn't the "discretion" be better exercised in analyzing the market and capability of smalls to do the work?
  5. If you are providing technical assistance services and writing reports and part of the team is in Egypt and the other is in Arlington VA, is the contract performed overseas?
  6. @Vern Edwards @Don Mansfield well, the final rule is out and the response to questions. They still do not describe what they mean by "performance" or "outside the US". So if services are "performed" BOTH in the US and overseas under the same contract, I am still not clear if I must set-aside or I may set-aside. Any other reads on this?
  7. I thank you @Don Mansfield and @Vern Edwards very much for continued engagement and I am definitely one of those who is not okay with ambiguous rules, especially when they very clearly affect people's livelihoods or fair competition. I wonder if the revised FAR 19 rule "clarification" will respond to the ABA comments that you all shared (thank you!) and reconcile the SBA's "regardless of place of performance" rule with "applies only in the United States" language. Would be most grateful if you all hear something on this and share here. Many thanks again!
  8. My question was really to do with the specific situation but also for almost all agency contracts, which are "delivering services" outside the US, but the services are performed by contractor personnel who are located in the US and outside the US. The COs are also based in the US and/or in overseas locations - sometimes both. Do COs know that some services or a lot of services will be performed in both US and overseas locations? In most cases, yes, because these are cost reimbursable contracts which require large US based recruitment efforts with some personnel traveling overseas and some not. To Vern's point, FAR 19.000(b) does not say "performance", it just says "applies in the United States" and does not explain what this means. The new proposed rule to explain that it means "discretional" application for contracts outside the United States, again means nothing. What does "in the United States" mean? The question is really about the small businesses in this industry. The agency mostly takes the position that because the contracts are performed "almost entirely overseas" ( a term which is not defined) COs may use discretion in setting aside contracts, but are not mandated to do so under FAR 19 even if there are multiple small businesses capable of performing the work. The small businesses disagree and would like to argue that there is no presumed exception for the agency's contracts. The issue is not more rules, but clearer rules as to when US small businesses do not have to be considered and why. I am assuming that the agency's above interpretation of FAR 19.000 (b) "applies in the US" to include consideration of location of performance and the "entire" or not "entire" concept is due to the definition which relates to small business subcontracting plans. FAR 19.702 (b)(3) sets the requirements for small business subcontracting plans under the authority of 15 USC 637(d) and states that the requirement for small business subcontracting plans does not apply " For contracts or contract modifications that will be performed entirely outside of the United States and its outlying area" So there we have it - prime contract set-aside requirements only apply "in the US" and small business subcontracts requirement applies only for contracts "performed entirely outside the US and its outlying areas". What does a pro-US small business CO to do? Thank you all for an interesting discussion.
  9. I am leaning towards it is NOT, although my choice would just be considered "discretionary". Until it is clear what is considered "performance in the US" and how that is determined, people will continue to wing it. At least in this industry, which is non-DOD. I this case, the Foreign Assistance bilaterals do not restrict sources, so it just defaults to the rest of the FAR.
  10. Thats a good point. Having read through all the info provided here, I am thinking that the way the agency obligates funding to specific country accounts before the funding is used to what is called "sub-obligation" to contracts may support the whole "overseas contracting" argument, even though the actual "performance" is in the US if you count it by dollar value or by number of personnel and where they work from. Very confusing. If the whole thing is exempt, then say its exempt and all the set-asides and SB sub plans are completely discretionary. If it is not exempt, then everyone follows the same rules....
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