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Does TAA apply to replacement parts supplied under maintenance contract?


PennGC57

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20 hours ago, Don Mansfield said:

Carl,

My read of GSAR 552.238-82 and GSAR Subpart 538.72 is that "order level materials" refers to materials under a T&M order. What if a repair service is fixed-price and the contractor will be required to replace worn out parts? Assume the only line item in the order is for repair services (i.e., no line item for materials). Do you think TAA would apply to the replacement parts?

Don , where did you determine that order level materials are only priced under time and materials orders?  Are you saying that they can’t be included at a fixed price or in a fixed price order?  

 

 

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Guest Vern Edwards
10 hours ago, C Culham said:

I have concluded that FAR drafters in creating the term "end product" have convoluted TAA applicability.  

Of all the rules in FAR, the ones for the socio-economic programs seem to me to be the most convoluted. Think Parts 19, 22, 23, and 25. They started out simple but became increasingly complex as Congress enacted statutory changes, additions, variations, and exceptions, and the FAR councils have been forced to follow suit.

FAR Part 25 was completely rewritten in 1999, see 64 Fed. Reg. 72416, Dec. 27, 1999. FAR Subpart 25.4 and 52.225-5, combined, have been revised 99 times since then.

In a December 2000 briefing paper published in the aftermath of the rewrite, Domestic & Foreign Product Preferences, 00-13 Briefing Papers 1, the attorney-authors open with this:

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Federal procurement law boasts a thicket of statutes and implementing regulations designed to afford particular advantage to supply and service providers that meet certain criteria. In particular, the statutes and regulations that create preferences in Government procurement for the acquisition of U.S. domestic goods and services (or for goods and services of certain U.S. trading partners) have never been more important than today when a single manufacturer typically relies on parts and labor from around the world to produce something as advanced as a single laptop computer or as mundane as a shovel. Unfortunately, the domestic and foreign product preference statutes and regulations are confusing, complex, and often so ambiguous as to render uniform application nearly impossible.

The interaction of two of the most important of these statutes, the Buy American Act (BAA) and the Trade Agreements Act (TAA), often has proven particularly troublesome. Recent amendments to the regulations implementing these statutes, which went into effect in February 2000, have simplified some areas of the law but have rendered other areas nearly incomprehensible.

Footnotes omitted. See also Howell, The Trade Agreements Act of 1979 Versus The Buy American Act: The Irresistible Force Meets The Immovable Object, Public Contract Law Journal, Spring 2006:

The OP said: 'I am helping a contractor determine whether and how TAA applies to their contract." ji20874 gave some very good advice in his very first post in this thread: "For a reliable legal answer on TAA application, you may want to consult an attorney." I find that ironic in light of the OP's team membership. I don't know how I'd feel if I were paying for professional advice and found the people I hired at a website seeking opinions from anonymous persons.

Wifcon is fun for discussion, debate, and bickering among us, and useful for guidance to sources of information (if people had sources and were willing to identify them), but I worry about questions from the OP in threads like this one, especially when I think what's potentially at stake and how often each of us has been wrong about something or other over the course of the years. Of course, our input is free, and you get what you pay for. Well, sometimes.

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Guest Vern Edwards
On 8/29/2018 at 1:21 PM, Don Mansfield said:

Reading the provision and clause together, I think that "items in the Schedule" as used in FAR 52.225-5(b) can reasonably be interpreted to mean line items.

I'm not sure what you meant by that. Were you saying that in order to be an end product an item has to be a line item? In any case, in the 1999 Part 25 rewrite the FAR councils changed to definition of "end product" in FAR 2.101 to read as follows:

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End product means supplies delivered under a line item of a Government contract.

See 64 Fed. Reg. 72416, Dec. 27, 1999.

Two years later the FAR councils reverted to the old definition, which does not include any reference to "line item".

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End product means those articles, materials, and supplies to be acquired for public use.

See 66 Fed. Reg. 65349, Dec. 18, 2001. The definition in 2.101 was changed to read:

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End product means supplies delivered under a line item of a Government contract, except for use in part 25 and the associated clauses at 52.225-1, 52.225-3, and 52.225-5, see the definitions in 25.003, 52.225-1(a), 52.225-3(a), and 52.225-5(a).

The FAR councils said that they reverting to the old definition based on comments they received after publication of the rewrite final rule. That reversion strikes me as indicating that the FAR councils decided they did not want to limit end products to line items. An end product can be a line item, but it doesn't have to be.

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5 hours ago, joel hoffman said:

Don , where did you determine that order level materials are only priced under time and materials orders?  Are you saying that they can’t be included at a fixed price or in a fixed price order?

joel, I think I misread the clause. It provides coverage for T&M orders, it doesn't limit application to T&M orders.

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2 hours ago, Vern Edwards said:

The FAR councils said that they reverting to the old definition based on comments they received after publication of the rewrite final rule. That reversion strikes me as indicating that the FAR councils decided they did not want to limit end products to line items. An end product can be a line item, but it doesn't have to be.

Sounds like the work of the FAR Subcommittee for Vagueness and Obscurity.

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On 8/31/2018 at 9:04 AM, Vern Edwards said:

I find that ironic in light of the OP's team membership. I don't know how I'd feel if I were paying for professional advice and found the people I hired at a website seeking opinions from anonymous persons.

Wifcon is fun for discussion, debate, and bickering among us, and useful for guidance to sources of information (if people had sources and were willing to identify them), but I worry about questions from the OP in threads like this one, especially when I think what's potentially at stake and how often each of us has been wrong about something or other over the course of the years. Of course, our input is free, and you get what you pay for. Well, sometimes.

@Vern Edwards I think you're selling everyone short in this comment. The frequent Wifcon posters, particularly those engaged in this thread (@Don Mansfield, @C Culham, @joel hoffman, and @ji20874) are a wonderful resource for practitioners of all stripes, including lawyers. The collective breadth and depth of regulatory knowledge within this community is exceptional. After all,  you find "discussion, debate and bickering" over federal contracting regulations to be fun.

As to whether it is appropriate for lawyers to consult this community when providing counsel to clients -- Even seasoned lawyers conduct legal research to answer client questions -- especially practitioners in complex and dynamic areas of law, such as government contracts. Two important steps in legal research are to figure out: (1) which rules apply in a given situation and (2) what do regulators think those rules require. This community is a good source for that. Although I don't always agree with the conclusions here, I find this community to be an incredibly useful place to help with legal research. And you're right that advice given here is really just a starting point. But it is a good starting point. 

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Guest Vern Edwards

@NenaLenz

6 hours ago, NenaLenz said:

I think you're selling everyone short in this comment.

I know them better than you do. 😊

Anyway, I'm certain that they'll appreciate your praise.

6 hours ago, NenaLenz said:

As to whether it is appropriate for lawyers to consult this community when providing counsel to clients -- Even seasoned lawyers conduct legal research to answer client questions -- especially practitioners in complex and dynamic areas of law, such as government contracts. Two important steps in legal research are to figure out: (1) which rules apply in a given situation and (2) what do regulators think those rules require. This community is a good source for that. Although I don't always agree with the conclusions here, I find this community to be an incredibly useful place to help with legal research. And you're right that advice given here is really just a starting point. But it is a good starting point. 

I don't buy the above if the time spent here is considered billable. I don't consider Wifcon to be a valid source for legal research. It's a source for chat. I enjoy chat, and chat might be informative, but I wouldn't charge a client for reading it or participating in it. Otherwise, if you're learning things here and enjoying yourself, have at it.

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Guest Vern Edwards
On 8/27/2018 at 9:20 AM, PennGC57 said:

Are replacement parts supplied to repair equipment required to comply with the TAA?

@NenaLenz I'll add that the OP's question, above, is a matter of contract interpretation. If I were the contractor I would have put that question to the contracting officer, and I would have asked for the answer in writing. It doesn't matter one whit what your legal research turns up. What people here think matters even less. What matters is what that CO is going to decide. There are procedures for resolving any dispute between your client and the CO over the CO's answer.

The best legal research might be to write a letter for your client on your letterhead asking the CO for his or her interpretation.

But, then, I'm old school. Just ignore me.

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Guest PepeTheFrog
16 minutes ago, Vern Edwards said:

I wouldn't charge a client for reading it or participating in it.

 

6 hours ago, NenaLenz said:

Although I don't always agree with the conclusions here, I find this community to be an incredibly useful place to help with legal research.

 

For Vern, @NenaLenz, and any others:

Would you charge a client for reading a law firm's blog?

Would you charge a client for reading any website other than Westlaw or LexisNexis or an official website for government records?

Would you charge a client for speaking to a trusted and knowledgeable colleague on the phone about a research topic?

PepeTheFrog thinks its reasonable to charge a client for speaking to @Vern Edwards or anyone at his level about a research topic.   

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I submit itemized time records along with my invoices, showing how I spent my time (and their money). I charge my clients for research time. It's clearly identified on my time records.

I do as much research as the issue warrants. I use as many sources as the issue warrants.

In a decade of consulting, no client has ever questioned being billed for research time.

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Guest Vern Edwards
3 hours ago, PepeTheFrog said:

For Vern, @NenaLenz, and any others:

Would you charge a client for reading a law firm's blog?

Would you charge a client for reading any website other than Westlaw or LexisNexis or an official website for government records?

Would you charge a client for speaking to a trusted and knowledgeable colleague on the phone about a research topic?

PepeTheFrog thinks its reasonable to charge a client for speaking to @Vern Edwards or anyone at his level about a research topic.   

I won't answer those questions categorically. My answers would depend on whether the research helped the client or just helped me.

If a client hired me to help with a source selection, I would not bill the client for reading to "get up to speed" on the topic of source selection. I would bill the client for research that dealt directly with the client's particular issues. Thus, if asked to help a client decide whether to seek clarification of something in a proposal, I would not bill the client for reading up on the distinction between clarification and discussion, but I would bill the client for gathering the facts, looking at protest decisions bearing on the client's situation, and developing advice about whether clarification would resolve the issue and how to seek it without crossing the line into discussions.

I would certainly not bill the client for time spent on Wifcon asking whether putting a particular set of questions to the offeror would be clarification or discussion.

But that's just me.

 

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