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ron vogt

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  1. ron vogt

    Help! Protection of Proprietary Data

    Had to laugh at the name "Benny Lava." Hilarious video. As for your question, I think this forum discussed it a few years ago, but I coudn't find it in the archives. IIRC, it was the same issue -- how to protect information that is discussed in a meeting, but that is not a data deliverable and is not marked with any of the official legends. Can anyone help find that again?
  2. I'm not sure what you mean, but in the end it doesn't matter. I agree that the language of 7012 supports your conclusion. It's just odd that DoD can make a deliberate decision not to apply a restriction to any contracts except for the six specified categories, because the costs of implementation would outweigh any benefits, yet allow that restriction to come in through another provision. What happened to the costs of implementation? Then again, you could search in vain for consistency in all of the manufacturing and content restrictions.
  3. Given the history of the Berry Amendment and the clauses, I think it's possible that there is at least an oversight. That's not exactly unprecedented in the FAR and DFARS. At one time the specialty metals clause, 252.225-7014, went in all contracts. The difference between contracts for the six categories (aircraft, ammunition, etc.) and all other contracts was in the flowdown requirement. The decision to separate those categories was part of DoD's struggle to implement the statutory requirement, and was not fully consistent with the statutory language. A 1972 memo (the "Laird memo") concluded that the legislation was never intended to "achieve the impossible" in its implementation, and that there would be no real benefical result to justify the cost of implementing the restrictions in anything other than the six specified categories. Now the specialty metals restriction is at 10 USC 2533b and is separate from the Berry Amendment. The new clauses (252.225-7008 and 7009) are the result. What remains in the Berry Amendment is the original restriction, and is clearly aimed at something other than metal. The restriction (must be produced in the US) covers food, clothing and the materials and components thereof, tents, tarpaulins or covers, cotton and other natural fibers, and individual equipment manufactured from such fibers, yarns, fabrics or materials. It's pretty clear that the restriction is aimed at food, fibers and fabrics. In fact the original Berry Amendment was named for Congressman Ellis Berry from South Dakota, not coincidentally a major food, cotton and wool producing state. I think it is not at all unreasonable to conclude that the Berry Amendment covers food and fabrics, not metal. It may not even have been considered that fabrics and clothing would contain metal. Looking at it another way, if there was a conscious decision by DoD that there would be no beneficial result from applying the specialty metals restriction to anything other than the six categories, why should a restriction come in through the back door in another clause?
  4. I'm not sure why you are saying 252.225-2009 is reserved and that 7014 is now the correct clause. Everything you are citing is the old rule and clauses, which were replaced in July 2009. Please see DFARS Case 2008-D003. I'm interested in the answer because it seems that with the new specialty metals rule, DoD has said that there is a restriction only in contracts for the six listed categories (aircraft, ammunition, etc). So in a contract for uniform items or individual equipment, there would be no specialty metals clause and apparently no restriction on the source of any specialty metal in the equipment. Yet the Berry Amendment clause (DFARS 252.225-7012) says that the item and all components must be produced in the US. Remember, the specialty metals restriction used to part of the Berry Amendment until it was made separate statute a couple of years ago. The specialty metals clause then underwent several revisions until its current version. It seems that the decision to apply the restriction only to contracts for the six listed categories would be nullified by the language of 7012. Then again, maybe it's an oversight.
  5. It appears that we have a new contract type, courtesy of the Court of Appeals for the Federal Circuit. It's the Indefinite Duration, Indefinite Quantity contract. "pursuant to the solicitation, multiple contractors will be awarded indefinite duration indefinite quantity multiple-award task order contracts (IDIQ MATOCs)." WEEKS MARINE, INC. v. UNITED STATES, 575 F.3d 1352; 2009 U.S. App. LEXIS 17730. What next, the Cost Plus, Fully Funded (CPFF) contract? Oh, and by the way, it reversed the Court of Claims decision, which had caused much discussion. http://www.wifcon.com/discus/messages/8524/9072.html
  6. ron vogt


    If it's a project that uses Federal Transit Administration funds, then it is subject to the "Buy America" Act (not the "Buy American Act"). Different law, and the FTA's rules are different than the Buy American Act rules for federal contracts. I can dig up the USC and CFR cites if you need them. As for China, I was not aware that it was covered by any trade agreements. It's not one of the designated countries (WTO GPA, FTA, Least-Developed, etc ) under the FAR.
  7. Both clauses should not be in there. The BAA applies below the appropriate threshold, and the TAA applies above. In fact, the prescription for 225-1 reads: "Insert the clause at 52.225-1, Buy American Act?Supplies, in solicitations and contracts ... if none of the clauses prescribed in paragraphs (b ) and (c ) of this section apply..." (b ) and (c ) then are the TAA clauses.
  8. Not trying to stir up anything. Just saying that knowingly subbing to a small business that will just turn around and sub the work out to a large business, might have trouble meeting a "good faith" test. I would prefer not having to justify it to a CO. If it technically complies with the subcontracting plan and good faith requires nothing more than that, then fine.
  9. Please note that I said the prime knows that it is subcontracting to a small business that is merely a front end for a large. That might be seen as a lack of good faith. Just speculating, but I think I would want a better defense if I were faced with liquidated damages. Then again, maybe the goals of the SB system are satisfied if the small business can record the revenue, even if it goes in one end and immediately out the other.
  10. I can see a problem if a prime has an approved sub-k plan, and subs to a small business that is just a front end for a large business that does the work. If the prime knows this, that may violate its obligation to make a good faith effort to meet the elements of its plan.
  11. ron vogt

    Buy American Act

    It's possible that the general counsel may be using one of the other eceptions, and not the fact that the distributor is in the US.
  12. ron vogt

    Buy American Act

    In response to your question about an American distributor, I would not read it that way. The Buy America provision in ARRA states that the goods must be "produced" in the US. Both the FAR and the OMB implementation state that goods must be produced or manufactured in the US. The focus is on the place of manufacture, not the source of the purchase or the location of the seller.
  13. ron vogt

    Buy American Act

    The Buy American Act is not part of the stimulus bill ("ARRA"). Rather, section 1605 of ARRA has a Buy America provision in it that reads as follows: "(a) None of the funds appropriated or otherwise made available by this Act may be used for a project for the construction, alteration, maintenance, or repair of a public building or public work unless all of the iron, steel, and manufactured goods used in the project are produced in the United States." After listing three exceptions, it then states: "(d) This section shall be applied in a manner consistent with United States obligations under international agreements." (d) was added in the 11th hour after concerns that the provision would set off trade wars. Section 1605's wording is closer to the Buy America provisions in statutes that provide federal funding, such as transportation-related projects under the FTA. Also note that section 1605 only applies to construction, whereas the Buy American Act applies to supply contracts as well. ARRA provides funds in two primary ways. First, it provides money to federal agencies for their own spending. Second, it provides funds to federal agencies to disperse to state and local governments and other entities in the form of grants, loans, and other vehicles. Thus ARRA is being implemented in two ways. Provisions related to federal spending, i.e. acquisitions, are being implemented in the FAR. The Buy America provisions are the subject of a new subpart in Part 25 -- subpart 25.6. Provisions related to federal funding are being implemented via OMB guidance to federal agencies in a new 2 CFR part 176. The Buy America provisions are at 176.60 through 176.170. There are some differences between the Buy American Act for government acquisitions, and ARRA's Buy America provisions. However the FAR implementation of ARRA does retain the exception for trade agreement countries if the project is over the trade agreements threshold -- $7,443,000 (except for Caribbean Basin countries).
  14. Correct me if I'm wrong, but I believe much of the stimulus money will be going out in the form of grants, not acquisitions. In other words, xxx billion goes to the federal transit agency to fund transportation projects, xxx billion goes to DOE for energy-related projects, etc. The funds go to state and local governments, and other recipients, who then award contracts for the projects. As such, this will all occur under the agencies' grant regulations, not acquisitions. If so, does FedBizOPS, and even the FAR, come into play at all, at least for the money that gets disbursed through grants?
  15. ron vogt

    Contractor definition

    Apparently the GAO reads Wifcon. In Computer Cite, B-400830 (Feb 3, 2009), the GAO held that only a wholy-owned subsidiary must register in CCR in order to obtain a contract, not the parent. The GAO satated that the registration requirements pertain to "the offeror itself" which implicitly answers what "the contractor" is. That should answer what the entity is for purposes of filling out reps and certs as well, and I would use the same logic to conclude that when the subsidiary obtains a contract with DFARS 252.203-7000 in it, the hiring restriction would apply only to the subsidiary and not flow up to the parent. It doesn't necessarily answer whether the parent company must include all subsidiaries in its reps and certs, or whether a parent contract with DFARS 252.203-7000 in it would restrict subsidiaries as well. Based on the above I would argue that they are separate entities and that requirements would not flow down just as they don't flow up.
  16. The prime has two obligations under 52.219-9 with respect to subs. 1 - include the clause (52.219-9) in all subcontracts that offer further subcontracting opportunities, and 2 - require all subcontractors (except small business concerns) that receive subcontracts in excess of $550,000 with further subcontracting possibilities to adopt a subcontracting plan. Note that both requirements are conditioned on there being further subcontracting opportunities, which you apparently do not have. Note also that paragraph c of that clause says that the offeror shall submit and negotiate a subcontracting plan, where applicable. It sounds like your prime does not have to include the clause in your subcontract. Even if it includes the clause, it does not have to require you to have a plan. If all it has done at this point is put the clause in your contract, but has not required you to submit a plan, you probably don't have a problem. If it tells you to submit a plan, you need to point out the above requirements and the fact that you are not permitted to subcontract anything. That would seem to make "further subcontracting opportunities" nonexistent.