Don Mansfield

Are you referring to offeror responses to FAR 52.222-22 and -25?

That's a good question. We'll have to wait until the proposed SBA rule is issued to see what it says. If it's silent, somebody needs to ask that question.

I could not find anything saying that imposing a Q&A deadline is prohibited, nor could I find anything that requires the Government to extend the deadline for receipt of proposals because it receives a last minute question. Instead of imposing a deadline, you could advise offerors that it may take you up to X days to respond to a given question. Thus, if they want their question answered before the solicitation closing date, they should have it in by [insert date]. Questions received after [insert date] may not be answered prior to the solicitation closing date. This doesn't impose a deadline for questions and it would communicate to offerors that the timing of their questions will have no effect on the solicitation closing date.

GeoJeff, What can I say? You were the type that was more responsive to negative reinforcement.

ron, We agree on 1, 2, 3, and everything you wrote after that. As far as the prescription for DFARS 252.225-7021 being carelessly written or written exactly as intended, I believe it's the former. The prescription for the clause used to read: I pointed out that "Trade Agreements Act" needed to be changed to "WTO GPA" and they changed it. I'm not buying that the omission of a reference to the list at DFARS 225.401-70 was the product of thoughtful deliberation.

For acquisitions below $204,000, you wouldn't apply the TAA for commercial IT or foreign use. The prescription for the implementing clause, FAR 52.225-3, states (FAR 25.1101( b )(1)(i)): If you're wondering why we don't have the same exceptions when the WTO GPA applies, I'm not sure. My guess is that the WTO GPA does not provide for such exceptions.

Retreadfed, The FMR can be read the way you are reading it. However, I don't think that's the correct interpretation. In Matter of: Financial Crimes Enforcement Network, B-317139, June 1, 2009, the GAO stated: See also Matter of Incremental Funding of U.S. Fish and Wildlife Service Research Work Orders, B-240264, February 7, 1994:

Yes, I think it does. The authority granted by 10 U.S.C. 2410a is not specific to a particular type of appropriation. Here's what the statute says:

Hi, Ron, You wrote: I agree with everything you wrote, but I don't understand how it corrects what I wrote. You then wrote: DFARS 225.003 defines "eligible product" as follows: Instead of listing all of the "eligible products" in the clause (i.e., free trade agreement country end products, etc.), I just referred to them as "eligible products", the same way the term is used at DFARS 225.7501( b ). Also, I'm not confused by the difference between an "eligible product" and a "designated country end product." DFARS 252.225-7021 defines the term as follows: Given the definition of "eligible product" above, "designated country end products" includes the foreign end products described in ( i ) of the definition of "eligible product", least developed country end products, and Caribbean Basin country end products. You also wrote: The TAA applies to the acquisition of end products as long as the value of the acquisition exceeds $25,000 (the lowest trade agreement threshold), the end product is in one of the FSGs listed at DFARS 225.401-70 and there are no exceptions. Period. The BOPP can also apply for acquisitions under $204K. Saying that the TAA applies to an acquisition does not imply that the WTO GPA applies--it may or may not. Lastly, you wrote: I don't think use of the term "trade agreements" is ambiguous. If you look at the table in FAR 25.402( b ), the column with the heading "Trade Agreement" lists the WTO GPA and the FTAs. I don't think it would reasonable to interpret the term "trade agreements" as just the FTAs. I would not infer anything from the absence of a reference to DFARS 225.401-70 in the prescription for DFARS 252.225-7021. As complicated as the BAA/TAA/BOPP scheme is, I think I get it. Not to say there was not a garbage can full of crumpled up notebook paper with half-written decision trees along the way. Let me know if I'm missing something.

That's better. Since you referred to 2410a, I assume you work for DoD. According to Volume 3, Chapter 8, of the DoD Financial Management Regulation, nonseverable services must be fully funded at the time of award. See 080303 ( C )(2): It's possible to have a line item for a nonseverable service and another line item for a severable service in the same contract (don't say "severable contract). In such a contract, you would be required to fully fund the line item for the nonseverable service at award, but not the line item for the severable service. I'm not sure what you're asking with your last question. If you had multi-year appropriations, you wouldn't need the authority at 10 USC 2410a, right? Also, are you sure that you are funding a severable service with a multi-year appropriation?

Vern.

ji20874, No, I didn't specify. This was what I wrote:

I know this will do nothing to convince Vern, but I asked someone on the FAR Team responsible for Labor Law if they thought a mobile storage unit (as described by the OP) was a public work for purposes of the Wage Rate Requirements (Construction) statute. This was the response I received:

I agree. The foreign acquisition regs are a maze. My nomination for most difficult to clause prescription is at DFARS 225.1101(2)(i) (I had to make a decision tree to understand it):

My comment that "everyone is doing it" was meant as an observation, not to suggest a course of action.

What you are describing is a combination FFP/Cost reimbursement contract. I don't think that such a contract is FFP or FP/EPA and would, thus, be prohibited by statute and regulation. Having said that, everyone is doing it and nobody is getting in trouble.

joel, I had to look up "Philadelphia Lawyer." This is what I found: Whichever way you meant it, I take it as a compliment. Thank you.

Fara Fasat, You wrote: Correct. Correct. Not exactly. If the BOPP applies and the TAA does not apply, then you will use DFARS 252.225-7000 and -7001. These treat qualifying country end products the same as domestic end products. There's no special treatment of eligible products. If both the BOPP and the TAA applied, then you would use DFARS 252.225-7035 and -7036. These would treat both qualifying country end products and eligible products the same as domestic end products.

Fara Fasat, Based on what you've written, neither the BAA or the TAA would apply to your acquisition. However, the Balance of Payments Program (BOPP) may apply. The BOPP works like the BAA, except it applies to end products and construction materials for use outside the United States. See DFARS subpart 225.75. Martin, The BOPP is a discriminatory provision that would be waived under the TAA. The BOPP used to apply across the Federal Government, but now it only applies to DoD. Also, for purposes of applying the TAA in DoD, it doesn't matter where the end products or construction material will be used. All that matters is the value of the acquisition, whether an exception applies, and for end products, whether the item is in one of the FSGs listed at DFARS 225.401-70.

There's no blanket prohibition on contracting with universities using a BPA. The FAR even promotes contracting with certain types of universities at FAR 26.302.

metteec, Some more questions-- 1. For sole source actions that require a J&A, do you get the J&A approved before beginning negotiations? 2. Do you create a solicitation with proposal instructions and evaluation criteria, then send it to the prospective contractor to begin negotiations? 3. Using your procedure, wouldn't the prospective contractor be able to figure out that the action was not competitive, given the fact that you haven't synopsized it or (I assume) made the solicitation available through FBO?

metteec, You said you wait until negotiations are done before issuing the FBO announcement. How long do you wait to award after the FBO announcement?

Maureen, Before awarding most contracts, even those that are awarded on a sole source basis, the contracting officer must determine that the prospective contractor is responsible (i.e. meets the standards at FAR 9.104-1). Why isn't that sufficient "to be sure that the contractor will deliver what we are expecting"?

If I were an SSA, I don't think I would use ratings at all. I would have the evaluation team evaluate the proposals against the evaluation factors stated in the solicitation, document the relative strengths, deficiencies, significant weaknesses, and risks (as required by FAR 15.305) and report back. I would then use those findings to make my decision. I don't see how having the evaluation team assign ratings would make my life easier.

I don't agree with that. The second sentence of the definition says the term includes, without limitation, a list of both things and activities. No need to invoke the context rule. I quoted the definition in FAR 2.101 because in post #20 joel said he didn't have a regulatory or statutory definition of "public building or public work", so I was helping him out.