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1 minute ago, hallowed said:

Don, i appreciate if you answer these questions to make things clear for me:

1. Are all solicitations -without a set aside code- unrestricted?

2. Can a contract officer include clauses in unrestricted solicitations to exempt small businesses? Which parts should i pay attention to avoid any mistakes in the future?

1. I don't know what you mean by set-aside "code". If the solicitation doesn't contain FAR 52.219-6, then it's not a small business set-aside. 

2. That would be a first. Pay attention to FAR clauses in a solicitation that start with "52.219-" and contain the word "set-aside" or "8(a)" in the title. Don't respond to those solicitations.

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@hallowed,

Just stumbled across this at DFARS 225.872-3(a):

Quote

Except for items developed under the U.S./Canadian Development Sharing Program, use the criteria for soliciting and awarding contracts to small business concerns under FAR Part 19 without regard to whether there are potential qualifying country sources for the end product.  Do not consider an offer of a qualifying country end product if the solicitation is identified for the exclusive participation of small business concerns.

 

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@Don Mansfield

Don,

I need a quick answer for a question if you don’t mind.

My business office is in Florida which is my residence address and my orders are being manufactured by a company located overseas.

So for unrestricted solicitations, while filling the quotation form on dibbs, does it make any difference to bid as manufacturer or dealer? I mean am i considered a manufacturer since i don’t have a facility here? Because when i select the dealer option, it asks for the cage code or the address of the actual manufacturer and none of the overseas companies have a cage code. Does a company need to have its own facility to be considered a manufacturer? How do contract officers evaluate this subject? 

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My advice:  Tell the truth. 

Clearly, based on what I read, you are not a manufacturer of these items.

Even if the acquisition is unrestricted (not a set-aside), there may be other clauses that care about the place of origin of the items.  Buy American, Trade Agreements, Balance of Payments, Duty Free Entry, and Restrictions on Certain Foreign Purchases come to mind, but I don't know what clauses are included in your solicitation.

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On ‎3‎/‎31‎/‎2019 at 9:35 AM, hallowed said:

my orders are being manufactured by a company located overseas.

Do you own the overseas company?  If not, how could you be a manufacturer under these circumstances?

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18 hours ago, Retreadfed said:

Do you own the overseas company?  If not, how could you be a manufacturer under these circumstances?

That’s what i want to know. I may be wrong but i don’t think that i’m a dealer also because i don’t buy the products from the manufacturer and then sell them. I give them the specs and they produce the items for me.

I don’t want to make a mistake and get into trouble. That’s why i’ve asked which option i should select. 

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Not claiming to be an expert here. One requirement of the Walsh-Healy Public Contracts Act is that the supplier certify that they are either the manufacturer or a regular dealer. 

The PCA does not apply to certain contracts, including...

Items bought on the open market (commercial items).

“Supplies manufactured outside the U.S. (including Puerto Rico) or the Virgin Islands...”

On 4/2/2019 at 3:05 AM, hallowed said:

That’s what i want to know. I may be wrong but i don’t think that i’m a dealer also because i don’t buy the products from the manufacturer and then sell them. I give them the specs and they produce the items for me.

I don’t want to make a mistake and get into trouble. That’s why i’ve asked which option i should select. 

So, are you acting as a broker for the foreign manufacturer?  Are you the seller to the government or is the manufacturer? You said that the manufacturer produces the items for you.

The definition of broker can include a seller or one who acts as an agent for the manufacturer from what I’m reading in Google searches. But that doesn’t qualify it as a supply contractor to the government. 

This isn’t a set-aside, so the non-manufacturer rule or exceptions aren’t applicable - I think. At any rate, the manufacturer would have to be a small business in the US under those rules. 

None of those rules override any other restrictions, like BAA, etc. 

However, I freely admit that I am confused.🤪

 

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10 hours ago, joel hoffman said:

Not claiming to be an expert here. One requirement of the Walsh-Healy Public Contracts Act is that the supplier certify that they are either the manufacturer or a regular dealer. 

The PCA does not apply to certain contracts, including...

Items bought on the open market (commercial items).

“Supplies manufactured outside the U.S. (including Puerto Rico) or the Virgin Islands...”

So, are you acting as a broker for the foreign manufacturer?  Are you the seller to the government or is the manufacturer? You said that the manufacturer produces the items for you.

The definition of broker can include a seller or one who acts as an agent for the manufacturer from what I’m reading in Google searches. But that doesn’t qualify it as a supply contractor to the government. 

This isn’t a set-aside, so the non-manufacturer rule or exceptions aren’t applicable - I think. At any rate, the manufacturer would have to be a small business in the US under those rules. 

None of those rules override any other restrictions, like BAA, etc. 

However, I freely admit that I am confused.🤪

 

I’m confused, too :) I bid for dla non set-aside solicitations and if i get the award, i give the product specs to the manufacturer to produce the items and then ship the items to the destination. No problem with this part. Everything is within the scope of dla master solicitation. 

There are no pre-manufactured items to buy and sell. They’re made upon my request, based on the specs cited in the contract. The manufacturer works as a subcontractor (as stated in the contract). I may be wrong but that’s why i say i’m not a dealer.

And according to the posts above i’m not a manufacturer either because i don’t have a manufacturing facility. There’s no clear definition regarding this situation.

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Are they government spec’d assemblies , govt provided designs, your designs or what? Or are they Commercially sold items ? 

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The distinction between manufacturer and dealer has its basis in the Walsh-Healey Public Contracts Act that Joel introduced above.  Under that Act, a contractor had to be either (a) a manufacturer of the items being supplied, or (b) a regular dealer of the items being supplied.  The purpose was to make brokers ineligible to participate in the procurement.  It looks like you are a broker.

But being a broker might be okay.  I don't know if the Walsh-Healey Public Contracts Act applies to your solicitation.  I don't think it applies to commercial items.  If Walsh-Healey does apply, I understand the law was amended somewhere along the way to change "manufacturer or regular dealer" to "supplier" in most cases.  As I understand, the only places where it makes a difference is those market sectors where the Department of Labor has issued rules for definitions.  I know DOL has issued rules defining manufacturer and regular dealer in certain petroleum sectors, and offerors there have to qualify as one or the other according to those rules -- brokers are not allowed.  I don't know what market sector you are in, and I don't know if DOL has promulgated definitions for that sector.

Remember, we're trying to be helpful to you as practitioners -- we're not lawyers -- you cannot over-rely on what we say here.

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3 hours ago, joel hoffman said:

Are they government spec’d assemblies , govt provided designs, your designs or what? Or are they Commercially sold items ? 

Joel they’re all commercial items. Available on the market sold by various manufacturers or allowed to be manufactured from scratch. 

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3 hours ago, ji20874 said:

The distinction between manufacturer and dealer has its basis in the Walsh-Healey Public Contracts Act that Joel introduced above.  Under that Act, a contractor had to be either (a) a manufacturer of the items being supplied, or (b) a regular dealer of the items being supplied.  The purpose was to make brokers ineligible to participate in the procurement.  It looks like you are a broker.

But being a broker might be okay.  I don't know if the Walsh-Healey Public Contracts Act applies to your solicitation.  I don't think it applies to commercial items.  If Walsh-Healey does apply, I understand the law was amended somewhere along the way to change "manufacturer or regular dealer" to "supplier" in most cases.  As I understand, the only places where it makes a difference is those market sectors where the Department of Labor has issued rules for definitions.  I know DOL has issued rules defining manufacturer and regular dealer in certain petroleum sectors, and offerors there have to qualify as one or the other according to those rules -- brokers are not allowed.  I don't know what market sector you are in, and I don't know if DOL has promulgated definitions for that sector.

Remember, we're trying to be helpful to you as practitioners -- we're not lawyers -- you cannot over-rely on what we say here.

I don’t think that PCA applies because they are all commercial items. My sector is fabricated metal products like bolts, nuts, washers etc. 

And no i don’t over-rely on your posts. Just want to get various aspects from all who wants to participate. Learning new stuff is always fun. Thank you all for spending your valuable time to reply my questions. I appreciate your help.

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On 3/31/2019 at 8:35 AM, hallowed said:

@Don Mansfield

Don,

I need a quick answer for a question if you don’t mind.

My business office is in Florida which is my residence address and my orders are being manufactured by a company located overseas.

So for unrestricted solicitations, while filling the quotation form on dibbs, does it make any difference to bid as manufacturer or dealer? I mean am i considered a manufacturer since i don’t have a facility here? Because when i select the dealer option, it asks for the cage code or the address of the actual manufacturer and none of the overseas companies have a cage code. Does a company need to have its own facility to be considered a manufacturer? How do contract officers evaluate this subject? 

Hallowed, I suggest contacting the procurement technical assistance center and ask them. 

The PCA is inapplicable to commercial item purchases.  So you can ask if there another reason that you would have to identify as either a dealer or manufactuter. 

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On ‎3‎/‎31‎/‎2019 at 9:35 AM, hallowed said:

when i select the dealer option, it asks for the cage code or the address of the actual manufacturer

hallowed, as I understand DIBBS, it does not require the manufacturer to have a CAGE code.  What it asks the dealer to provide is either the CAGE code for the actual manufacturer or if the manufacturer does not have a CAGE code you are to provide the name and address of the manufacturer.  Thus, the fact that the manufacturer does not have a CAGE code should not mean you cannot assert that you are a dealer and provide the information required by DIBBS.

Having worked at DLA several years ago, I know that this is a particularly sensitive issue in regard to industrial fasteners because of what was known as the counterfeit bolt scandal where equipment failed and there were deaths of military personnel.  In addition, the failure of such products caused deadly industrial accidents.  Not being able to identify the actual manufacturer of these products poses a risk to operational readiness and personal health and safety.

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2 hours ago, Retreadfed said:

hallowed, as I understand DIBBS, it does not require the manufacturer to have a CAGE code.  What it asks the dealer to provide is either the CAGE code for the actual manufacturer or if the manufacturer does not have a CAGE code you are to provide the name and address of the manufacturer.  Thus, the fact that the manufacturer does not have a CAGE code should not mean you cannot assert that you are a dealer and provide the information required by DIBBS.

Having worked at DLA several years ago, I know that this is a particularly sensitive issue in regard to industrial fasteners because of what was known as the counterfeit bolt scandal where equipment failed and there were deaths of military personnel.  In addition, the failure of such products caused deadly industrial accidents.  Not being able to identify the actual manufacturer of these products poses a risk to operational readiness and personal health and safety.

I think you misunderstood me. My company has a cage code. Actually i’m working as a regular viable company with all required registrations including cage, duns, ein etc. The problem is my company is working as a supplier. I find the material, buy it and then give it to the manufacturer located overseas to produce the items. The only difference between my company and a regular manufacturer is i don’t have my own facility but use other manufacturers as subcontractors (which is allowed by the contracts)

All products are %100 compatible with drawings, specs and quality required by the contract. Also, i have professional craftsmen and quality control staff working for me. 

My confusion is, can i -as a supplier- be considered a manufacturer since i buy all materials and hire a subcontractor to produce stuff. If not i must bid as a dealer but İ’m also not a dealer because i don’t buy a pre-manufactured product from a company to sell. Yes, the subcontractor is the manufacturer but there are no products readily available until i want them to make. Since there’s no option to bid as a supplier, i don’t know which of the two options are suitable for me. 

Normally my company gives manufacturing and supply service to non-government regular customers. But this is DoD and things work different i guess.

PS: I’m not asking these questions regarding small business set-asides. I know everything must be domestic if it’s a set-aside. I’m competing for non set-aside solicitations only.

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Can you give us an example of the NAICS code assigned to an acquisition that you would typically submit a quote on?  Also, what NAICS code(s) have you listed for your company in SAM?

Also, is a trademark stamped on the bolt heads?  If so, whose trademark is it, yours or the manufacturers?

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Automated systems don't always make sense, and they aren't always designed right.  Maybe DIBBS isn't smart enough to know that the items here are commercial items and that Walsh Healey doesn't apply to commercial items, so it asks the question for every solicitation.  The Federal Acquisition Streamlining Act of 1994 eliminated the requirement for an offeror to certify whether it was a regular dealer or manufacturer of the items being supplied, but maybe DIBBS didn't get the word.

Anyway, since the manufacturer and regular dealer distinction comes from the original Walsh Healey Public Contracts Act , it seems that you would be counted as a broker under the original Walsh Healey -- that is, neither a manufacturer nor a regular dealer.  I think old SBA 8(a) rules required 8(a) contractors to be regular dealers or manufacturers, but they renumbered their regulations a while back and I can't tell anymore.

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30 minutes ago, ji20874 said:

Automated systems don't always make sense, and they aren't always designed right.

I don't doubt that this is true.  However, for the items in question and based on my experience with counterfeit bolts, I believe that DLA wants to know who the actual manufacturer of those items is.  From the choices available in DIBBS, I would choose dealer and then identify the actual manufacturer.  If hallowed claims to be the actual manufacturer, but his supplier pulls a fast one and gives him bad bolts, e.g., knockoffs from China (or Germany where the bad bolts I dealt with came from), hallowed can be in trouble for product substitution which generally involves a violation of several criminal and civil statutes.

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2 hours ago, Retreadfed said:

Can you give us an example of the NAICS code assigned to an acquisition that you would typically submit a quote on?  Also, what NAICS code(s) have you listed for your company in SAM?

Also, is a trademark stamped on the bolt heads?  If so, whose trademark is it, yours or the manufacturers?

331315 and 332722 are the two naics codes i usually quote for which are also listed for my company on SAM.

There are some solicitations where a trademark or name of the manufacturer should be stamped on products but i haven’t received that type of contract yet.

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2 hours ago, ji20874 said:

Automated systems don't always make sense, and they aren't always designed right.  Maybe DIBBS isn't smart enough to know that the items here are commercial items and that Walsh Healey doesn't apply to commercial items, so it asks the question for every solicitation.  The Federal Acquisition Streamlining Act of 1994 eliminated the requirement for an offeror to certify whether it was a regular dealer or manufacturer of the items being supplied, but maybe DIBBS didn't get the word.

Anyway, since the manufacturer and regular dealer distinction comes from the original Walsh Healey Public Contracts Act , it seems that you would be counted as a broker under the original Walsh Healey -- that is, neither a manufacturer nor a regular dealer.  I think old SBA 8(a) rules required 8(a) contractors to be regular dealers or manufacturers, but they renumbered their regulations a while back and I can't tell anymore.

If Walsh Healey doesn’t apply for commercial items and the items i’m submitting quotes for are commercial items, how am i being considered a broker? I didn’t get it.

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1 hour ago, Retreadfed said:

I don't doubt that this is true.  However, for the items in question and based on my experience with counterfeit bolts, I believe that DLA wants to know who the actual manufacturer of those items is.  From the choices available in DIBBS, I would choose dealer and then identify the actual manufacturer.  If hallowed claims to be the actual manufacturer, but his supplier pulls a fast one and gives him bad bolts, e.g., knockoffs from China (or Germany where the bad bolts I dealt with came from), hallowed can be in trouble for product substitution which generally involves a violation of several criminal and civil statutes.

This is an important point you’ve mentioned. I wouldn’t like to get involved in a situation regarding violation or faulty items. Choosing the dealer option seems to be the most reasonable way. DLA might claim that i’m not the actual manufacturer but they can’t do the same thing for being a dealer.

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13 minutes ago, hallowed said:

If Walsh Healey doesn’t apply for commercial items and the items i’m submitting quotes for are commercial items, how am i being considered a broker? I didn’t get it.

I did not say you are considered a broker.  I merely allowed that under the original Walsh Healey, you would be counted as a broker.  I said that Walsh Healey has been changed since then, and I also said Walsh Healey doesn’t apply to commercial items.  I did this trying to explain where the distinction between regular dealer and manufacturer arose.  But I did not say that you are a broker under today’s rules.

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15 minutes ago, ji20874 said:

I did not say you are considered a broker.  I merely allowed that under the original Walsh Healey, you would be counted as a broker.  I said that Walsh Healey has been changed since then, and I also said Walsh Healey doesn’t apply to commercial items.  I did this trying to explain where the distinction between regular dealer and manufacturer arose.  But I did not say that you are a broker under today’s rules.

My misunderstanding. Sorry 🙂

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