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cuselax22

Buy American Application

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I am a very new CS in the field, I have searched the archives to find the answer but was unsuccessful. I was hoping someone would be able to provide me insight into a specific question I have. 

In regards to the Buy American Act, if a door is made in the United States, but assembled in Canada, does that violate the act? I am also looking for a reference to the answer. Thank you in advance for your help!

 

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You need to read the clause that Don cited, if you are going to rely on that clause for your answer.  Under that clause, the contractor cannot deliver a Canadian product (qualifying country product) unless it so specified in its offer.  Did it do so?

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That clause must be one applicable and included in a solicitation/contract regarding the end item delivery of the door. The case I referenced above is cited as authority that "assembly" cost is considered "manufacturing" cost when assembly completes the article in the form required for use by the government.

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The clause is not in the contract until—

(1) the contracting officer adds it by modification, unilaterally or bilaterally, or

(2) a judge reads it into the contract under the Christian doctrine when deciding an appeal.

Has either (1) or (2) happened yet?  Which one?

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Did someone indicate in writing that the Christian doctrine was implied? Who signed the written document? Can it be assumed the DFARS qualifying country clause was also not included in the solicitation? Who issued the solicitation, the government or a contractor? Is the entity you are associated with a subcontractor? What parties are taking what position with respect to this question and what is their position?

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15 hours ago, cuselax22 said:

No clauses were included in the solicitation. The Christian doctrine was implied to use the Buy American Act. Please advise, thank you

 

12 hours ago, ji20874 said:

The clause is not in the contract until—

(1) the contracting officer adds it by modification, unilaterally or bilaterally, or

(2) a judge reads it into the contract under the Christian doctrine when deciding an appeal. 

Has either (1) or (2) happened yet?  Which one?

You may find this excerpt from a previous discussion thread helpful in giving a better view of how the government might attempt to apply the Christian Doctrine.   The quoted part below is by Vern Edwards.

   

  • Guest Vern Edwards
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On ‎9‎/‎20‎/‎2016 at 11:15 AM, ContractSpecialistTJohn said:

What is considered a change that would require a bi-lateral modification? 

Unless a contract clause permits one of the parties to unilaterally modify a right or obligation of one or both of the parties, any change in a right or obligation must be made by mutual agreement, i.e., bilaterally.

On ‎9‎/‎20‎/‎2016 at 11:15 AM, ContractSpecialistTJohn said:

Using the Christine doctrine could a uni-lateral modification be issued to add the commercial contract clauses if they were not included in the original solicitation?  

In order to understand what follows you must understand that "contract" means two things: (1) the contractual agreement between the parties and (2) the contract document that memorializes that agreement.

Keep in mind that the FAR does not anticipate that the CO will omit a mandatory clause without an authorized deviation, so it does not prescribe a  corrective procedure. We have to make something up.

If a CO believes that a mandatory clause that meets the criteria for application of the Christian Doctrine has been improperly omitted from the contract, and that the contract should be interpreted to include the clause, the CO should try to persuade the contractor to accept that interpretation. If that can be done, the parties should document their agreement to revise the text of the contract document to reflect the contractual agreement. The best way to do that would be on an SF-30 that describes the revision to the text of the contract document. The modification does not alter the contractual agreement. It merely revises the contract document to reflect the true agreement. Since the contractual agreement is not changed, and the modification does not alter the rights of the parties, there is no need for consideration to bind the parties to the terms of the modification. Why not an administrative change? Because administrative changes are unilateral by FAR definition, see FAR 43.101, and the parties should document the fact that they have agreed to revise the text of the contract document.

FAR does not prescribe that procedure. I made it up.

If the CO cannot persuade the contractor, then he or she may make a government claim in the form of a CO decision interpreting the contract to include the clause. The authority for such a claim would be the Disputes clause, FAR 52.233-1, paragraph (d)(1). See also FAR 33.206(b) and 33.210. The CO should cite the Christian Doctrine and demonstrate the the criteria for the application of that doctrine have been met. After issuance of the decision, the CO should then issue a unilateral modification to revise the text of the contract document to reflect the CO's interpretation of the contractual agreement, citing the clause prescription as authority. The contractor may appeal the decision in accordance with the terms and procedures of the Disputes clause.

In such cases, the clause is not added to the contractual agreement. The argument is that clause is already there by operation of law. The contractual agreement is not modified and no consideration is necessary. The parties are just revising the contract document to reflect the contractual document.

 

 

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