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Does TAA apply to replacement parts supplied under maintenance contract?

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Guest Vern Edwards

1. Given the rather broad and vague definition of "end product," it would be hard to think of anything that is purchased for a contract that is not an end product.

2. In the Uniform Contract Format, the contract schedule includes the specification. So any mention in a specification of requirements for a replacement part would make that part an item in the contract schedule. Unless of course, we interpret "item" to mean contract line item. But then the definition of "end product" in FAR 2.101 seems to indicate that end products, as used in FAR Part 25, include more than just those items identified in contract line items.

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1 hour ago, Vern Edwards said:

Given the rather broad and vague definition of "end product," it would be hard to think of anything that is purchased for a contract that is not an end product.

I agree and therefore my use of "likely" in my most recent post but only U.S. Customs will know for sure.

With regard to Don's most recent post the other issue looming that helps answer any question as to applicability of TAA is whether the "work order" is issued under the authority of the GSA Schedule contract.

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Thanks for all the thoughtful responses. I frequently provide legal counsel re TAA & BAA compliance, but clarity on this one is elusive, so I appreciate your insights. 

The OP is on my team. Allow me to add some details -

  1. Client is on GSA Schedule 03FAC (facilities maintenance services). The contract CLINS are all for services. 
  2. DOD BPA says: "Contractor is to provide all work, materials, and labor required to provide inspection, testing and maintenance . . in accordance with the statement of work, amendments and proposal". The statement of work contemplates "minor repair work", but does not include any mention of materials. 
  3. Work Order. After inspections indicate a need for minor repair work, contractor submits quote to DOD for the repair work. This is usually done via email (both quote submission and approval by DOD). Quote includes labor and materials priced separately. Materials are sometimes referred to generally as "materials" and sometimes by specific description. These work orders are issued under the GSA Schedule and DoD BPA T&Cs, but they do not reference those agreements in any way.  
2 hours ago, Don Mansfield said:

1. Do the replacement parts meet the definition of "end products" at FAR 25.003?

 

In the definition of end product, I am wrestling with the meaning of "for public use".  Here, the materials are installed in government buildings. They become part of the fixtures.  Is that sufficient to be "for public use"?

 

2 hours ago, Don Mansfield said:

2. Are the replacement parts identified in the contract schedule? 

I guess the answer to this depends on what we are calling the "contract schedule". The replacement parts are not identified in  DOD BPA schedule specifically, although the schedule says the contractor must provide the materials needed for repair. The replacement parts are clearly and separately priced as materials v. labor on the repair work orders.

 

What do you think? 

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2 hours ago, Vern Edwards said:

Unless of course, we interpret "item" to mean contract line item.

That may be reasonable. Take a look at FAR 52.225-6, Trade Agreements Certificate, the companion provision to FAR 52.225-5. If an offeror is going to propose an end product that is not a U.S.-made or designated country end product, they must list it by line item number in paragraph (b). Further, paragraph (c) says "For line items covered by the WTO GPA, the Government will evaluate offers of U.S.-made or designated country end products without regard to the restrictions of the Buy American statute."

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.

 

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35 minutes ago, 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.

That is how I have always interpreted it, and I believe (but do not have on hand) some good case law and other guidance documents on point re: CLINs as end products. (Happy to find them if someone really wants to see them). 

The key here is whether the materials listed in the repair task orders amount to CLINs for end product purposes. 

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Vern,

Okay, my bad.  When you asked me "Does FAR say that somewhere else? Do you know of any case law?" regarding an assertion I had not made, I thought you were asking for me to prove something and to provide some case law.  Silly me.  

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3 hours ago, NenaLenz said:

Client is on GSA Schedule 03FAC (facilities maintenance services). The contract CLINS are all for services. 

 My read of the current GSA solicitation for the parent contract on the street provides for  "Ancillary Supplies and/or Services" as line items (CLINS if you will)in several places.  Reference -https://www.fbo.gov/index?tab=documents&tabmode=form&subtab=core&tabid=d0e20d7c37cbe001ef6e9cd7b58e5aef

I take yours and Don's discussion to mean that the GSA Order that the contractor holds only has CLINS for services on it therefore TAA does not apply.    Yet the GSA Schedule Contract is subject to TAA therefore anything ordered  ( material) under the contract must be compliant with TAA whether you have it on a dang BPA, the call under the BPA or even an Order under the contract or not.

I completely understand how foolish my view may sound but think of it this way if all of a sudden you had to replace all the material everywhere, not just a piece here or there and you wanted to get it all from China what would your view then be, skate it under the radar too?

2 hours ago, NenaLenz said:

some good case law and other guidance documents

Yep hard to find but have you looked at the CROSS search engine found here https://rulings.cbp.gov/home   Interesting reading when you search on something like 19 U.S.C. §§ 2511 that might just suggest the materials you are providing could be an issue in all sorts of ways.

 

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Guest Vern Edwards
1 hour ago, ji20874 said:

Vern,

Okay, my bad.  When you asked me "Does FAR say that somewhere else? Do you know of any case law?" regarding an assertion I had not made, I thought you were asking for me to prove something and to provide some case law.  Silly me.  

What I asked you is what I asked you and nothing more. It's clear that your answers should have been a simple No and No. As for "silly," that's your call. "Silly" is not the adjective I would have chosen.

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Guest Vern Edwards
5 hours ago, NenaLenz said:

In the definition of end product, I am wrestling with the meaning of "for public use".  Here, the materials are installed in government buildings. They become part of the fixtures.  Is that sufficient to be "for public use"?

Yes. If the buildings are owned or leased by the government, and if the public is paying for the materials, in what sense would the use be private?

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Guest Vern Edwards
5 hours ago, NenaLenz said:

I guess the answer to this depends on what we are calling the "contract schedule".

I think GSA schedule contracts are written in the Uniform Contract Format. If so, the contract "schedule" is sections A through J.

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3 hours ago, Vern Edwards said:

I think GSA schedule contracts are written in the Uniform Contract Format. If so, the contract "schedule" is sections A through J.

Actually if you were to look at a solicitation I do not believe they follow UCF.  It is a moot point however as everything one can find provides that TAA applies to order level materials.   Here is one more reference that you all might want to read.  PS - It is dated in 2018.

https://www.gsa.gov/cdnstatic/OLM Q%26A - 672018.pdf

Also this from the current GSA solicitation for Schedule 03FAC does not look like UCF to me -

TABLE OF CONTENTS

Please click on an item in Table of Contents below to go to the respective location within this document.

Part I - GOODS & SERVICES........................................................................................ 1

SIN Group -- Energy Management, Water Conservation and Support Services........................................ 7

SIN Group -- Facilities Maintenance and Managment Solutions for Real Property................................14

Part II - CONTRACT TERMS AND CONDITIONS....................................................27

52.204-18 -- COMMERCIAL AND GOVERNMENT ENTITY CODE MAINTENANCE (JUL 2016)......27

52.204-21 -- BASIC SAFEGUARDING OF COVERED CONTRACTOR INFORMATION SYSTEMS

(JUN 2016)................................................................................................................................................ 27

52.209-1 -- QUALIFICATION REQUIREMENTS (FEB 1995)................................................................29

52.212-5 -- CONTRACT TERMS AND CONDITIONS REQUIRED TO IMPLEMENT STATUTES OR

EXECUTIVE ORDERS - COMMERCIAL ITEMS (NOV 2017) (ALTERNATE II - NOV 2017).............. 30

52.216-18 -- ORDERING (OCT 1995) (DEVIATION II - FEB 2007)......................................................35

52.223-11 -- OZONE-DEPLETING SUBSTANCES AND HIGH GLOBAL WARMING POTENTIAL

HYDROFLUOROCARBONS (JUN 2016)................................................................................................ 35

52.223-20 -- AEROSOLS (JUN 2016).......................................................................................................37

52.223-3 -- HAZARDOUS MATERIAL IDENTIFICATION AND MATERIAL SAFETY DATA (JAN

1997)..........................................................................................................................................................37

52.223-3 -- HAZARDOUS MATERIAL IDENTIFICATION AND MATERIAL SAFETY DATA (JAN 1997)

(ALTERNATE I - JUL 1995)..................................................................................................................... 38

52.225-19 -- CONTRACTOR PERSONNEL IN A DESIGNATED OPERATIONAL AREA OR

SUPPORTING A DIPLOMATIC OR CONSULAR MISSION OUTSIDE THE UNITED STATES (MAR

2008)..........................................................................................................................................................40

52.232-40 -- PROVIDING ACCELERATED PAYMENTS TO SMALL BUSINESS SUBCONTRACTORS

(DEC 2013)............................................................................................................................................... 45

52.252-2 -- CLAUSES INCORPORATED BY REFERENCE (FEB 1998)............................................... 46

552.211-78 -- COMMERCIAL DELIVERY SCHEDULE (MULTIPLE AWARD SCHEDULE) (FEB

1996)..........................................................................................................................................................49

552.211-8 -- TIME OF DELIVERY (SEP 1999)....................................................................................... 50

552.212-4 -- CONTRACT TERMS AND CONDITIONS - COMMERCIAL ITEMS (JAN 2017)

(DEVIATION - FEB 2007) (DEVIATION - FEB 2018)............................................................................ 51

552.212-4 -- CONTRACT TERMS AND CONDITIONS - COMMERCIAL ITEMS (JAN 2017)

(DEVIATION - FEB 2018) (ALTERNATE I - JAN 2017) (DEVIATION - FEB 2007)............................. 58

552.212-71 -- CONTRACT TERMS AND CONDITIONS APPLICABLE TO GSA ACQUISITION OF

COMMERCIAL ITEMS (JUN 2016).........................................................................................................71

552.212-72 -- CONTRACT TERMS AND CONDITIONS REQUIRED TO IMPLEMENT STATUTES OR

EXECUTIVE ORDERS APPLICABLE TO GSA ACQUISITION OF COMMERCIAL ITEMS (JUN

2015)..........................................................................................................................................................72

552.215-73 -- NOTICE (JUL 2016).......................................................................................................... 72

552.216-70 -- ECONOMIC PRICE ADJUSTMENT - FSS MULTIPLE AWARD SCHEDULE

CONTRACTS (SEP 1999) (ALTERNATE I - SEP 1999).......................................................................... 73

552.216-70 -- ECONOMIC PRICE ADJUSTMENT - FSS MULTIPLE AWARD SCHEDULE

CONTRACTS (SEP 1999) (ALTERNATE I - SEP 1999) (DEVIATION II - JUL 2016)........................... 74

552.216-72 -- PLACEMENT OF ORDERS (JAN 2016) (ALTERNATE I -- AUG 2010)..........................75

552.216-74 -- TASK-ORDER AND DELIVERY-ORDER OMBUDSMAN (JAN 2017)............................76

552.228-5 -- GOVERNMENT AS ADDITIONAL INSURED (JAN 2016).................................................76

552.238-71 -- SUBMISSION AND DISTRIBUTION OF AUTHORIZED FSS SCHEDULE PRICELISTS

(SEP 1999) (DEVIATION -- JUN 2016)................................................................................................... 76

552.238-78 -- SCOPE OF CONTRACT (ELIGIBLE ORDERING ACTIVITIES) (JUL 2016)................. 77

552.238-82 -- SPECIAL ORDERING PROCEDURES FOR THE ACQUISITION OF ORDER-LEVEL

MATERIALS (JAN 2018)...........................................................................................................................79

C-FSS-370 -- CONTRACTOR TASKS / SPECIAL REQUIREMENTS (NOV 2003).................................80

C-FSS-411 -- FIRE OR CASUALTY HAZARDS, OR SAFETY OR HEALTH REQUIREMENTS (OCT

6FEC-E6-030292-B Refresh: 34

1992)..........................................................................................................................................................81

C-FSS-425 -- WORKMANSHIP (OCT 1988)............................................................................................82

C-FSS-427 -- ANSI STANDARDS (JUL 1991)..........................................................................................82

C-FSS-439 -- ENVIRONMENTAL PROTECTION AGENCY REGISTRATION REQUIREMENT (APR

1996)..........................................................................................................................................................83

CI-FSS-056 -- FEDERAL ACQUISITION REGULATION (FAR) PART 51 DEVIATION AUTHORITY

(FEDERAL SUPPLY SCHEDULES) (JAN 2010).....................................................................................83

CI-FSS-151-N -- ADDITIONAL EVALUATION FACTORS FOR AWARD TO NEW OFFERORS (OCT

2015)..........................................................................................................................................................84

CI-FSS-151-N -- ADDITIONAL EVALUATION FACTORS FOR AWARD TO NEW OFFERORS (OCT

2015) (ALTERNATE I - JUL 2016)...........................................................................................................85

CI-FSS-151-S -- ADDITIONAL EVALUATION FACTORS FOR AWARD TO SUCCESSFUL FSS

PROGRAM CONTRACTORS (OCT 2015)............................................................................................... 87

CI-FSS-151-S -- ADDITIONAL EVALUATION FACTORS FOR AWARD TO SUCCESSFUL FSS

PROGRAM CONTRACTORS (OCT 2015) (ALTERNATE I - JUL 2016)................................................ 88

F-FSS-202-F -- DELIVERY PRICES (APR 1984).................................................................................... 90

G-FSS-900-C -- CONTACT FOR CONTRACT ADMINISTRATION (JUL 2003)....................................90

G-FSS-906 -- VENDOR MANAGED INVENTORY (VMI) PROGRAM (MAS) (JAN 1999).................... 91

G-FSS-907 -- ORDER ACKNOWLEDGEMENT (APR 1984).................................................................. 92

G-FSS-910 -- DELIVERIES BEYOND THE CONTRACTUAL PERIOD-PLACING OF ORDERS (OCT

1988)..........................................................................................................................................................92

I-FSS-103 -- SCOPE OF CONTRACT WORLDWIDE (JUL 2002)..........................................................92

I-FSS-106 -- GUARANTEED MINIMUM (JUL 2003)............................................................................. 93

I-FSS-108 -- CLAUSES FOR OVERSEAS COVERAGE (MAY 2000)...................................................... 93

I-FSS-109 -- ENGLISH LANGUAGE AND U.S. DOLLAR REQUIREMENTS (MAR 1998)................... 93

I-FSS-140-B -- URGENT REQUIREMENTS (JAN 1994)........................................................................ 94

I-FSS-163 -- OPTION TO EXTEND THE TERM OF THE CONTRACT (EVERGREEN) (APR 2000)...94

I-FSS-40 -- CONTRACTOR TEAM ARRANGEMENTS (JUL 2003)........................................................94

I-FSS-50 -- PERFORMANCE REPORTING REQUIREMENTS (FEB 1995)..........................................95

I-FSS-597 -- GSA ADVANTAGE! (OCT 2014).........................................................................................95

I-FSS-597 -- GSA ADVANTAGE! (OCT 2014) (DEVIATION I -- AUG 2011)........................................ 95

I-FSS-599 -- ELECTRONIC COMMERCE - FACNET (FEB 2018)........................................................ 95

I-FSS-60 -- PERFORMANCE INCENTIVES (APR 2000)........................................................................ 97

I-FSS-600 -- CONTRACT PRICE LISTS (OCT 2016).............................................................................. 97

I-FSS-624 -- OFFICE COPIER UTILIZATION GUIDELINES (MAY 2000).........................................101

I-FSS-626 -- SERVICE POINTS (AUG 1986).........................................................................................101

I-FSS-639 -- CONTRACT SALES CRITERIA (MAR 2002).................................................................... 101

I-FSS-644 -- DEALERS AND SUPPLIERS (OCT 1988)........................................................................ 102

I-FSS-646 -- BLANKET PURCHASE AGREEMENTS (MAY 2000).......................................................102

I-FSS-680 -- DISSEMINATION OF INFORMATION BY CONTRACTOR (APR 1984)........................ 102

I-FSS-965 -- INTERPRETATION OF CONTRACT REQUIREMENTS (APR 1984)..............................102

I-FSS-969 -- ECONOMIC PRICE ADJUSTMENT â## FSS MULTIPLE AWARD SCHEDULE (OCT

2014) (ALTERNATE II - JUL 2016)........................................................................................................103

I-FSS-969 -- ECONOMIC PRICE ADJUSTMENT-FSS MULTIPLE AWARD SCHEDULE (OCT

2014)........................................................................................................................................................104

Part III - VENDOR INSTRUCTIONS.........................................................................107

52.204-16 -- COMMERCIAL AND GOVERNMENT ENTITY CODE REPORTING (JUL 2016)......... 107

52.204-17 -- OWNERSHIP OR CONTROL OF OFFEROR (JUL 2016)............................................... 108

52.209-5 -- CERTIFICATION REGARDING RESPONSIBILITY MATTERS (OCT 2015)....................108

52.209-7 -- INFORMATION REGARDING RESPONSIBILITY MATTERS (JUL 2013)....................... 110

52.215-20 -- REQUIREMENTS FOR CERTIFIED COST OR PRICING DATA AND DATA OTHER

THAN CERTIFIED COST OR PRICING DATA (OCT 2010) (ALTERNATE IV - OCT 2010).............. 111

52.215-6 -- PLACE OF PERFORMANCE (OCT 1997)......................................................................... 112

52.216-1 -- TYPE OF CONTRACT (APR 1984)..................................................................................... 112

52.222-52 -- EXEMPTION FROM APPLICATION OF THE SERVICE CONTRACT LABOR

STANDARDS TO CONTRACTS FOR CERTAIN SERVICES--CERTIFICATION (MAY 2014)............ 112

52.225-18 -- PLACE OF MANUFACTURE (MAR 2015).......................................................................113

52.225-6 -- TRADE AGREEMENTS CERTIFICATE (MAY 2014).........................................................114

52.233-2 -- SERVICE OF PROTEST (SEP 2006)...................................................................................115

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Guest Vern Edwards
5 hours ago, C Culham said:

Actually if you were to look at a solicitation I do not believe they follow UCF. 

I think you're right. GSA schedule contracts are for commercial items and the UCF does not apply. My bad.

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2 hours ago, Vern Edwards said:

I think you're right.

Thanks Vern.  Its been a long time since I dug into this issue but in re-reading my post I noted this GSA FAR Supplement clause

 

7 hours ago, C Culham said:

552.238-82 -- SPECIAL ORDERING PROCEDURES FOR THE ACQUISITION OF ORDER-LEVEL

MATERIALS (JAN 2018)

It has a paragraph listing what clauses are not applicable to order level materials.  TAA is not listed.  Further clarification that  Yes -TAA does apply to replacement parts supplied under maintenance contract.

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48 minutes ago, C Culham said:

It has a paragraph listing what clauses are not applicable to order level materials.  TAA is not listed.  Further clarification that  Yes -TAA does apply to replacement parts supplied under maintenance contract.

This is incredibly helpful! That you all for weighing in.

... Now to help my client design a new compliance protocol and amend some subcontracts ....

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Guest Vern Edwards

I searched the decisions of the boards of contract appeals and did not find a single case in which the interpretation of "end product", as defined in FAR 52.225-5, Trade Agreements Act, was in dispute.

I scanned about 60 GAO decisions in which the Trade Agreements Act certificate was an issue and did not find any in which the definition of "end product" was the focus. I may have missed something.

I don't know what any of that means, and I don't know if any of it is significant.

I haven't had to deal much with FAR Part 25, but on short acquaintance I find it to be nearly indecipherable. There appear to be very few true experts. I don't know whether to be fascinated or repelled.

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@Vern Edwards - I rely on the Customs and Border Protection decisions and cases in the Court of International Trade for TAA country of origin guidance. Customs and CIT have the authority to make country of origin determinations for TAA purposes. To find lines of cases that speak to what is an end product, search for "substantial transformation" analyses.

When examining whether a product complies with TAA, CBP first decides which product is subject to the requirement -- and that requires determining which product is the end product. The country of origin is where that end product was last "substantially transformed". 

The specific facts matter in each case, so the decisions are hard to analogize to other situations, but here is a quick rundown of factors that inform whether something will be considered an "end product" and thus subject to the TAA country of origin requirements. There's a lot of discussion about systems as end products when products are purchased together:

  • Whether the parts are directly incorporated into the system. The more the part is directly integrated into the “system,” the more likely it is found to be a component, rather than an end product.  
  • The purpose of the government solicitation. If the purpose of the solicitation is to obtain a single system, the government will consider whether the purpose of the solicitation is met only by a combination of parts, or if the parts, in isolation, meet that same purpose in some meaningful way. If the parts do not achieve the government’s purpose in a meaningful way, they are more likely to be viewed as components.
  • The language of the solicitation. Even if the language does not expressly explain which contract items are end products, the solicitation language may be useful in determining the purpose of the procurement.
  • The usefulness of the system parts in isolation. If a contract item has no use except as an integrated feature of the system, the item is more likely to be viewed as a component.
  • Whether the parts are available for individual purchase as replacement parts. If a contractor offers contract items for sale as replacement or ancillary items, the items are more likely to be considered end products than components.

 

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2 hours ago, C Culham said:
10 hours ago, C Culham said:

552.238-82 -- SPECIAL ORDERING PROCEDURES FOR THE ACQUISITION OF ORDER-LEVEL

MATERIALS (JAN 2018)

It has a paragraph listing what clauses are not applicable to order level materials.  TAA is not listed.  Further clarification that  Yes -TAA does apply to replacement parts supplied under maintenance contract.

To put an even finer point on this conclusion, see the GSAM 538.7203(b) . . . .  

538.7203 Administering Order-Level Materials in FSS contracts.

(b) Except as stated in 552.238-82 (d)(10)(11), all terms and conditions that otherwise apply to the FSS contract also apply to order-level materials. For example, order-level materials must comply with the Trade Agreements Act clauses, the Environmental Attributes clause, and the Industrial Funding Fee and Sales Reporting clauses.

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18 hours ago, NenaLenz said:

That is how I have always interpreted it, and I believe (but do not have on hand) some good case law and other guidance documents on point re: CLINs as end products. (Happy to find them if someone really wants to see them). 

I really want to see them😀

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3 hours ago, C Culham said:

It has a paragraph listing what clauses are not applicable to order level materials.  TAA is not listed.  Further clarification that  Yes -TAA does apply to replacement parts supplied under maintenance contract.

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?

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Guest Vern Edwards
2 hours ago, NenaLenz said:

@Vern Edwards - I rely on the Customs and Border Protection decisions and cases in the Court of International Trade for TAA country of origin guidance. Customs and CIT have the authority to make country of origin determinations for TAA purposes. To find lines of cases that speak to what is an end product, search for "substantial transformation" analyses.

When examining whether a product complies with TAA, CBP first decides which product is subject to the requirement -- and that requires determining which product is the end product. The country of origin is where that end product was last "substantially transformed". 

The specific facts matter in each case, so the decisions are hard to analogize to other situations, but here is a quick rundown of factors that inform whether something will be considered an "end product" and thus subject to the TAA country of origin requirements. There's a lot of discussion about systems as end products when products are purchased together:

  • Whether the parts are directly incorporated into the system. The more the part is directly integrated into the “system,” the more likely it is found to be a component, rather than an end product.  
  • The purpose of the government solicitation. If the purpose of the solicitation is to obtain a single system, the government will consider whether the purpose of the solicitation is met only by a combination of parts, or if the parts, in isolation, meet that same purpose in some meaningful way. If the parts do not achieve the government’s purpose in a meaningful way, they are more likely to be viewed as components.
  • The language of the solicitation. Even if the language does not expressly explain which contract items are end products, the solicitation language may be useful in determining the purpose of the procurement.
  • The usefulness of the system parts in isolation. If a contract item has no use except as an integrated feature of the system, the item is more likely to be viewed as a component.
  • Whether the parts are available for individual purchase as replacement parts. If a contractor offers contract items for sale as replacement or ancillary items, the items are more likely to be considered end products than components.

 

Thanks, Ms Lenz.

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3 hours ago, NenaLenz said:

I rely on the Customs and Border Protection decisions and cases in the Court of International Trade for TAA country of origin guidance. Customs and CIT have the authority to make country of origin determinations for TAA purposes. To find lines of cases that speak to what is an end product, search for "substantial transformation" analyses.

When examining whether a product complies with TAA, CBP first decides which product is subject to the requirement -- and that requires determining which product is the end product. The country of origin is where that end product was last "substantially transformed". 

The specific facts matter in each case, so the decisions are hard to analogize to other situations, but here is a quick rundown of factors that inform whether something will be considered an "end product" and thus subject to the TAA country of origin requirements. There's a lot of discussion about systems as end products when products are purchased together:

  • Whether the parts are directly incorporated into the system. The more the part is directly integrated into the “system,” the more likely it is found to be a component, rather than an end product.  
  • The purpose of the government solicitation. If the purpose of the solicitation is to obtain a single system, the government will consider whether the purpose of the solicitation is met only by a combination of parts, or if the parts, in isolation, meet that same purpose in some meaningful way. If the parts do not achieve the government’s purpose in a meaningful way, they are more likely to be viewed as components.
  • The language of the solicitation. Even if the language does not expressly explain which contract items are end products, the solicitation language may be useful in determining the purpose of the procurement.
  • The usefulness of the system parts in isolation. If a contract item has no use except as an integrated feature of the system, the item is more likely to be viewed as a component.
  • Whether the parts are available for individual purchase as replacement parts. If a contractor offers contract items for sale as replacement or ancillary items, the items are more likely to be considered end products than components.

 

Nina,

Right -- that is what has been said from the beginning of this thread, that this discussion would require (1) an understanding that end products and components are different, and (2) an understanding of the exact text and context of a contract.

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Guest Vern Edwards
2 hours ago, ji20874 said:

Right -- that is what has been said from the beginning of this thread, that this discussion would require (1) an understanding that end products and components are different, and (2) an understanding of the exact text and context of a contract.

Explained succinctly yesterday as follows:

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

Answer: "Based on FAR 52.225-5, the answer depends on how the contract is written. If the replacement parts are "end products," i.e., "articles, materials, and supplies to be acquired under the contract for public use," and if they are "items in the [contract] schedule," then the answer is yes. Otherwise, the answer is no."

 

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Vern,

I’m glad I was able to be helpful to you in this matter.  Best wishes...

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Guest Vern Edwards
21 minutes ago, ji20874 said:

Vern,

I’m glad I was able to be helpful to you in this matter.  Best wishes...

Your posts were a great help, just as soon as I translated them into English and then read a bunch of stuff.

Thanks! ❤️

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12 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 - Yes.  As provided in other posts through references noted ALL GSA schedule contracts are subject to TAA.

Again I note here TAA provides by my read no reference to "end product" just product.  I have concluded that FAR drafters in creating the term "end product" have convoluted TAA applicability.  

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