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Don Mansfield

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Posts posted by Don Mansfield

  1. 6 hours ago, Neurotic said:

    It could potentially be cost plus, but not percentage of cost, since the profit amount does not vary regardless. 

    The profit doesn't have to be a percentage of cost in a CPPC arrangement. When agencies run afoul of the CPPC prohibition, it's typically because they have agreed to pay for an indirect cost as a percentage of another incurred cost.

  2. 3 hours ago, Lionel Hutz said:

     

    Why then would FAR 25.1102 not include the TAA exception for small businesses?  Well, despite the fact that 52.225-11 has the words Trade Agreements in its name, it is not implementing the Trade Agreements Act.  The clause expressly states, "This clause implements 41 U.S.C. chapter 83, Buy American, by providing a preference for domestic construction material."  So, 25.1102 is implementing provisions of the Buy American Act, which does apply to small business set asides.  That is why there is no exception.

     

    Why do you think that because the clause says that it's implementing the Buy American Act, it is not implementing the Trade Agreements Act? Why can't it be implementing both? The Trade Agreements Act clearly applies to construction material and there is no other FAR clause that implements that policy for construction. The Trade Agreements Act requires agencies to waive the restrictions of the Buy American Act for construction material from Free Trade Agreement countries and WTO GPA countries. That's what the clause provides for, right?

  3. 2 hours ago, C Culham said:

    52.225-11 is a Buy American clause not a Trade Agreements clause.

    What do you mean? The title of the clause is "Buy American--Construction Materials Under Trade Agreements". The clause implements the policies and procedures of FAR subpart 25.4 titled "Trade Agreements".

    1 hour ago, ji20874 said:

    It's complicated, and I don't remember everything I learned from the USTR -- the answer goes all the way back to the source statutes.  Whenever I think of a BAA or TAA question, I have to put everything else aside and focus solely on that question.  But one thing I remember:  contracts for supplies are treated differently than contracts for construction -- they are different -- that's why the FAR text treats them separately.  One other thing I remember:  the pertinent text in FAR part 25 and in the applicable clauses is very precise, and should be followed.  If a contracting officer will simply include the right clauses pre-award according to their prescriptions, and if a contracting officer will simply read the text of the pertinent clause and do what it says post-award, everything will be so much easier.  A contracting officer should not try to superimpose his or her better judgment on the text.

    Thanks for your answer. I think that's good practical advice. One more question. Paragraph (b)(1) of the clause at FAR 52.225-11 says: "In addition, the Contracting Officer has determined that the WTO GPA and Free Trade Agreements (FTAs) apply to this acquisition." How does the contracting officer make that determination without looking in FAR subpart 25.4? 

  4. @ji20874

    I think you're correct regarding the interpretation of the prescription. However,  @MileHighAcq is asking for an explanation of why the FAR would prescribe a provision and clause implementing the policies and procedures of FAR subpart 25.4 in an acquisition set aside for small businesses in light of the exception at FAR 25.401. That's a good question. I can't figure it out. Do you know?

  5. It looks like the only exception to the "organized for profit" requirement is for small agricultural cooperatives. From 13 CFR 121.105:

     

    Quote

     

    § 121.105 How does SBA define “business concern or concern”?

    (a)(1) Except for small agricultural cooperatives, a business concern eligible for assistance from SBA as a small business is a business entity organized for profit, with a place of business located in the United States, and which operates primarily within the United States or which makes a significant contribution to the U.S. economy through payment of taxes or use of American products, materials or labor.

    (2) A small agricultural cooperative is an association (corporate or otherwise) acting pursuant to the provisions of the Agricultural Marketing Act (12 U.S.C.A. 1141j) whose size does not exceed the size standard established by SBA for other similar agricultural small business concerns. A small agricultural cooperative's member shareholders are not considered to be affiliates of the cooperative by virtue of their membership in the cooperative. However, a business concern or cooperative that does not qualify as small under this part may not be a member of a small agricultural cooperative.

    (b) A business concern may be in the legal form of an individual proprietorship, partnership, limited liability company, corporation, joint venture, association, trust or cooperative, except that where the form is a joint venture there can be no more than 49 percent participation by foreign business entities in the joint venture.

    (c) A firm will not be treated as a separate business concern if a substantial portion of its assets and/or liabilities are the same as those of a predecessor entity. In such a case, the annual receipts and employees of the predecessor will be taken into account in determining size.

     

     

  6. 16 hours ago, Vern Edwards said:

    I have changed my mind. I'm not going to comment. I watched the video that Carl posted, and I think it would be pointless to do so. The standard appears to be the product of a big committee.

    I hear you. I guess I'm a little more hopeful. I think if they received thoughtful comments, they would act on them. However, I wouldn't expect the committee to accept everything.

    Regardless of what the committee does with the comments, I think it would be a fun exercise to develop what we (me, you, @C Culham, @Matthew Fleharty, and others in the Wifcon community) think would be a good CMS. We could brainstorm with criticism. I'll do all the work. Our product couldn't be worse than the current CMS.

    Who's in?

     

     

  7. 12 minutes ago, Fara Fasat said:

    True, but my issue is not whether DoD has posted an accurate copy of the CFR. It's whether DoD has posted an accurate version for their practitioners to use. They have not.

    Then DoD shouldn't be surprised when their contracting officers aren't compliant with their class deviations.

  8. 49 minutes ago, Fara Fasat said:

    I was asking if something existed, like the version the Farsite had, where the deviations were integrated into the DFARS. It seems to me that's the most user-friendly solution. If there is no such thing any more, I could do what you and Don are saying. And so could thousands of other 1102s, contract managers, etc, at a tremendous waste and duplication of effort. 

    I am not averse to research, but this is not something that should require everyone to do his or her own research. These are clauses - they belong in the DFARS. In fact those 'official' versions, by using the clauses that have been replaced by a deviation, are not correct, are they? After all, the prescriptions for the deviations say they shall be used. 

    I feel your pain. This was one of the the reasons I created the DAU Provision and Clause Matrix. I spoke to the folks at Wolters Kluwer about incorporating something in their FAR Matrix Tool that would note the existence of class deviations for a clause or provision. They seemed interested in adding that feature, but I don't know if they ever did.

  9. 20 minutes ago, Fara Fasat said:

    Even if you downloaded the full pdf that Don suggested, what search terms would you suggest we use to find just the additional clauses, not the ones that replace an existing clause? It's over 400 pages long.

    Search for "-79". The subsection number of clauses that exist only in a deviation will start with 79. Usually, for multiple clauses that apply to a single part, the subsection numbering starts with "-7999" and goes down.

  10. 45 minutes ago, Fara Fasat said:

    Maybe I'm expecting too much. I'd like to see a full DFARS with the deviations in place along with the other clauses.

    The now defunct FARSite used to have the deviations embedded in the FAR and DFARS. I don't know of a place you can see that now.

    The DAU matrix at least clues you in to the fact that there's a deviation to a given FAR/DFARS clause.

  11. 17 hours ago, Vern Edwards said:

    I'll bet they're still teaching traditional brainstorming in civil service management classes.

    I know I taught that as part of the DAU curriculum.

    17 hours ago, Vern Edwards said:

    Sometimes I wonder how much that I've been told is true, and believe is true, is really true. I worry about that.

    I think a good goal is to discover you were wrong about something at least once a day. It's not that hard for me.

  12. 10 minutes ago, joel hoffman said:

    Ok, pricing information, consistent with current DAR and DFARS emphasis - which is what the DoD-IG is complaining about. 

    Right. The IG still thinks cost data is relevant when contractors use market pricing. It's likely more of a distraction when dealing with the type of CO @here_2_help described, which may be why Transdigm didn't provide it.

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