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Loveablackcat

Trade Agreements (TAA)

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We have a GWAC (not a schedule like GSA Advantage). The GWAC is issued by GSA.
52.225-5 Trade Agreements is in the GWAC contract Section I. Marked as applicable to all task order types.
52.225-6* Trade Agreements Certificate is in the GWAC contract Section H. Marked as applicable to all task order types. AND " * " denoting: Provision numbers followed by an asterisk (*) require fill-ins by the OCO if determined applicable and incorporated into the Order.

Under that GWAC we have a task order.  There are no FAR part 25 clauses specified in the task order. The task order is for mostly labor, but includes CLINs for ODCs, Tools and Materials which are not defined at the onset of the task order.

If we need to purchase items (for example iPads, printers) in support of this task order, do the items need to be TAA compliant? Why or why not?

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It was not clear to me whether you are a Contracting Officer that already issued a contract and are attempting to understand what contract obligations to expect performance from the contractor, or you are the contractor. Can you please clarify?

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Love,

If the items are for the use of your employees, then they need not be TAA compliant.  They only need the be TAA compliant if you are furnishing them as deliverables to the Government.   See para. (b) of the clause at FAR 52.225-5, Trade Agreements, in the parent GWAC contract.

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If you are a contractor, Love, I commend you for reading the contract to solve your question. "What's in your contract" is a common refrain. I am not sure why you mention FAR Part 25 in connection with your contract. Generally speaking, Part 25 guides Contracting Officers and are not contract clauses or provisions like Part 52. Did you have some experience or belief that they were incorporated into government contracts or that some Part 25 language is made expressly applicable to contractors even if not in the contract? 

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I am a contractor.  I speak about Part 25, meaning there were no 52.225 clauses in our task order, although they there were in the IDIQ.  Everything I read about the Trade Agreements Act references 'schedule' contracts and the items you list for sale.  That's the reason there are no iPads on GSA Advantage, but if they are being purchased for the government as an ODC (not a line item deliverable), is it allowable if they are not TAA compliant?  iPads is just an example, but we are coming across several ODC items that we are questioning.

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Are you questioning whether 52.225-5 is applicable to the task order you received because the task order is not for the acquisition of supplies or the acquisition of services involving the furnishing of supplies? If so, I think you have a good argument that even though the clause is included in the terms of the task order, it is inapplicable. The government may have included this clause on the outside chance that some task order may involve the acquisition of supplies or the acquisition of services involving the furnishing of supplies. As ji20874 indicated above, to be applicable, the services and/or supplies are those deliverable to the government. The task order appears to be your schedule in this case. If ODC items are required to be furnished/delivered to the government per your task order requirements, my opinion is they need to be compliant with 52.225-5.  To me, the key is not what your internal accounting system calls the purchase. Instead, the key is whether the task order requires an ODC, Tool or Material item be delivered to the government. Your company's requisitioning and accounting system in my mind should indicate that the such a supply item is "charged" to the task order  government contract and must meet the terms and conditions of the such contract.

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5 hours ago, Loveablackcat said:

I am a contractor.  I speak about Part 25, meaning there were no 52.225 clauses in our task order, although they there were in the IDIQ.  Everything I read about the Trade Agreements Act references 'schedule' contracts and the items you list for sale.  That's the reason there are no iPads on GSA Advantage, but if they are being purchased for the government as an ODC (not a line item deliverable), is it allowable if they are not TAA compliant?  iPads is just an example, but we are coming across several ODC items that we are questioning.

So, you would buy the iPad for Government use? It's not for your use?

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48 minutes ago, Don Mansfield said:

So, you would buy the iPad for Government use? It's not for your use?

Correct.  I think I'm going to err on the side of caution and make sure we note what we supply either is or is not TAA compliant. 

Thanks everyone!

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Love,

When your company submitted its offer for the GWAC contract, you provided a certificate in the provision at FAR 52.225-6.  Under the orders under the GWAC contract, you may deliver only U.S.-made or designated country end products except to the extent you specified delivery of other end products in that certificate.  Did you specify any in your fill-in for para. (b) of the provision at FAR 52.225-6?

The clauses in your parent GWAC IDIQ contract flow down to all of the children orders under the contract.  So yes, the clause at FAR 52.225-5, included in your parent contract, applies to the orders under the contract.

If an iPad is not TAA-compliant, and if you did not list iPad in your certificate in the provision at FAR 52.225-6 when you submitted your offer for the GWAC contract, then you may not provide iPads under orders under the GWAC contract.

If a Government agency needs an iPad (and assuming, arguendo, that the iPad is not TAA-compliant), there are other ways.  For example, if the purchase is a micro-purchase, then neither the BAA nor TAA restrictions apply.  The BAA kicks in at the micro-purchase threshold and the free trade agreements start to kick in at $25,000.  So between the micro-purchase threshold and $25,000, the BAA applies -- but the BAA has an exception for information technology that is a commercial item.  I suppose an iPad would count as information technology that is a commercial item, so the BAA restrictions would not apply to an open market iPad purchase of less than $25,000.  So yes, other contractors might be providing iPads to the Government -- but you cannot provide iPads to the Government under your GWAC unless you listed iPads in your certificate in the provision at FAR 52.225-6 when you submitted your offer.

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