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Found 7 results

  1. Someone asked a similar a similar question a few years ago, and it got one somewhat cautious response. I'd like to ask it again more directly and see what anyone thinks. Over the years, I have seen numerous prime contractors' standard subcontract terms for commercial items, and many of them include 52.219-9, the requirement to have a small business subcontracting plan. I believe that a subcontracting plan is not required at all in subcontracts for commercial items. My opinion is based on the language in 52.219-9(j), which states: "Subcontracting plans are not required from subcontractors when the prime contract contains the clause at 52.212-5, Contract Terms and Conditions Required to Implement Statutes or Executive Orders-Commercial Items, or when the subcontractor provides a commercial item subject to the clause at 52.244-6, Subcontracts for Commercial Items, under a prime contract." Since all contracts should have one or the other of those clauses, a subcontractor providing a commercial item is not required to have a plan. Looking at it another way, the only subcontract required to have plan is under a non-commercial prime (which includes 52.244-6) and the subcontract is for non-commercial items. There are obviously a lot of people who think differently, because several large primes (who shall remain nameless) include 52.219-9 in their commercial item subcontract terms. Their reason is that FAR 19-704(a)(9) states that a subcontract plan shall include "... assurances that the offeror ... will require all subcontractors (except small business concerns) that receive subcontracts in excess of $750,000 ... to adopt a plan that complies with the requirements of the clause at 52.219-9, Small Business Subcontracting Plan." Also 52.219-9(d)(9), which states that an offeror's plan will include "Assurances that the Offeror ... will require all subcontractors (except small business concerns) that receive subcontracts in excess of the applicable threshold specified in FAR 19.702(a) on the date of subcontract award, with further subcontracting possibilities to adopt a subcontracting plan that complies with the requirements of this clause." Sure looks like conflicting instructions, but here are my thoughts: first, ignore the FAR text at 19-704. It doesn't go in a prime contract; only 52.219-9 does. Next, read 52.219-9(d)(9) and (j) together: (d)(9) says to require a plan of all subcontractors, but (j) narrows it by saying 'but not from subcontracts for commercial items.' So - is a subcontracting plan required from a commercial item subcontractor?
  2. Representative Thornberry has introduced a discussion draft of his proposed FY19 acquisition reform efforts. In it he proposes to separate the definition of "commercial item" into "commercial product" and "commercial service." The following is the proposed definition of "commercial product" (emphasis added below): I'm curious to hear others' interpretations of the meaning of paragraph 4 (in bold above). Thanks in advance to anyone willing to share her/his thoughts.
  3. Hello again, We are currently subcontractors to a program and the prime has asked us for several commercial item determinations out of the blue. My company asserts commerciality of our parts on all quotes. They have always taken the stance that during valid period of the quote, and before a purchase order is placed, our company will provide any price analysis and assist in any commercial item justifications (CIJ). Should any price analysis or CIJ be provided, we do expect something in writing on the Prime's letterhead stating they accept our assertion of commerciality on the part numbers provided. That's a bit of background. Now, the prime has requested CIJ for several parts. Some of these parts were ordered years ago and some have open orders currently. To my knowledge, it is the Prime's responsibility to have done the price/cost analysis and price comparison at all times. Our prime is insisting that we, the sub, must provide CIJs with fair & reasonable price analysis for the parts requested. Our senior leadership insists this is not the case. I have reached out the DCMA to ask on the issue and they seem to side with us that ultimately, that responsibility was and is still the Primes but also encouraged us to work with the Prime if the DCMA is requesting the information. Sorry if this is a long read, my question is: Is our company correct in our assertion that this is all the Prime's responsibility and we are not obligated to provide CIJ? Is there a certain point from the RFQ, to the quote, to the purchase order where our obligation to provide ends? Going further, do we even have a obligation when during the RFQ, quote phase to provide anything? I believe the sub most likely does not have an obligation since the Prime can just move on before awarding any sub a contract if they refuse to provide a CIJ. Thank you.If there is any confusion, please let me know and I will do my best to answer it.
  4. For a small woman owned business (OEM manufacturer), what is the true advantage for insisting on selling its product solely as commercial items? If selling as non-commercial items, CAS does not apply as company is a small business. Technical Data Rights clauses do apply but with careful planning, company's technical data can remain its own. It seems that most FAR and DFARS clauses of import would revolve around providing of certified cost and pricing data (FAR 52.215-10 thru 14) and (FAR 52.215-20 and 21), and Audit rights (FAR 52.215-2). It seems to me that the government and primes have a hard time or are unwilling to evaluate "commercial item" justifications. Occasionally, even if the prime has accepted the commerciality assertion, DCMA will do their audit or engage a third party (like the Navy Price Fighters), who reject the CID. All this results in solicitations being issued as FAR Part 15. To state the question above differently: What is the true danger in selling as non-commercial items?
  5. Here is a question: A subcontractor made a proposal to design, manufacture and sell widgets that did not include a commercial item assertion. Subcontractor was selected as a sole source for these products and has been selling these for a number of years. Can a subcontractor now assert commerciality for these parts? Thanks
  6. I found an interesting speech about HR 1670 from 1995 (which I do not believe was signed into law) at http://www.defense.gov/Speeches/Speech.aspx?SpeechID=948. Here are some quotes. I wonder if the speaker meant to include FASA from 1994 when he said "current acquisition reform proposals". Does his statement about HR 1670 apply today? Here was the speaker's perception about attitudes in 1995 when he (the deputy DoD inspector general) was delivering this speech. I wish the speaker had given more data to back up the following claim. Is that so? Here is part of the conclusion of the speech. What do you think about the statement that CICA and TINA together "help add suppliers and reduce prices"? I do not know if there are many people outside a government oversight agency that see things the same way as the speaker. What do you think?
  7. A few years ago, an official (Army? Corps of Engineers?) issued what I think was a policy letter explaining why construction is not a commercial item/service. Has that letter (that I can't find now) been superseded or rescinded by another letter or DFAR/FAR regulation? After many internet, DFAR, & FAR searches, I turn to you for help! Thanks!
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