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FAR vs. SBA Regulation  

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  1. 1. FAR 19.505(c)(5) and 13 CFR §121.406(c) seemingly provide conflicting thresholds (see below). Which would you follow?

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17 hours ago, Don Mansfield said:

This is likely to happen when we get a final rule under FAR Case 2016-002, Applicability of Small Business Regulations Outside the United States. The SBA regulations require set-asides when the rule of two is met regardless of place of performance. The proposed rule under FAR Case 2016-002 would make application of FAR part 19 outside the United States optional. FAR 19.000(b) currently contains a blanket exception for acquisitions outside the United States.

The US has numerous country to country agreements (International Agreements). As an example, the (1970’s to present) Engineer Assistance Agreement between the US and Saudi Arabia for USACE involvement in SA also provides for a form of affirmative action programs to encourage development and participation of Saudi owned construction, services, manufacturing and supplier companies. The Saudis were paying for their entire programs with the DoD Branches.

I believe that International Agreements have the effect of law and some would take precedence over  portions of US laws that might conflict, such as Small Business Act. mandate to apply Part 19 set-asides and rule of two in SA or other Middle East countries with similar IA’s.

EDIT: added a link to discussion concerning IA’s and US laws. https://www.asil.org/insights/volume/2/issue/5/international-agreements-and-us-law

Edited by joel hoffman
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8 hours ago, joel hoffman said:

I believe that International Agreements have the effect of law and some would take precedence over  portions of US laws that might conflict, such as Small Business Act. mandate to apply Part 19 set-asides and rule of two in SA or other Middle East countries with similar IA’s.

The FAR already contains an exception to full and open competition for this reason (FAR 6.302-4).

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On ‎8‎/‎29‎/‎2020 at 5:58 PM, ji20874 said:

Regarding the matter of the nonmanufacturer rule, you already said there is no conflict.  But if there were, should contracting officers follow the dollar threshold cited in FAR (FAR 19.505(c)(5) and 52.219-33(c)(1)(i)(B)) or follow the threshold cited in SBA regulation (13 CFR §121.406(c))?

I would have to see what the precise conflict is before commenting.

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57 minutes ago, Don Mansfield said:

The FAR already contains an exception to full and open competition for this reason (FAR 6.302-4).

Don, I was specifically referring here to SBA,  or updated FAR or statutory policy requiring set-asides or sole source limited to various classes of US small businesses under FAR 19. Yes, international agreements can be used to limit competition. When the Saudi’s wanted to limit prime contract competition or direct certain sources, or favor Saudi subcontractors and suppliers 6.303-4 would be applicable.

However, most of the time, the Saudis did NOT want to limit sources for prime contracts. They were not in favor of limiting competition or set-asides and sole source under our FAR Part 19 to US Small and designated classes of small businesses. They were uninterested in social engineering for the benefit of American small businesses, including subcontracting plans for the benefit of  US subcontractors. 

EDIT: The current FAR non-applicability of FAR 19 special programs is consistent with what I’m referring to. The SBA position is in opposition to the Saudi positions and the agreements that I’m familiar with. 

That is but one example of international agreements that USACE Has worked under on Non-Conus Countries. 

 

Edited by joel hoffman
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Retread,

The alleged conflict in this thread is the dollar threshold under which the nonmanufacturer rule doesn’t apply.  It appears the threshold in FAR 19.505(c)(5) and 52.219-33(c)(1)(i)(B) differs from the threshold in 13 CFR §121.406(c).

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2 hours ago, ji20874 said:

The alleged conflict in this thread is the dollar threshold under which the nonmanufacturer rule doesn’t apply.  It appears the threshold in FAR 19.505(c)(5) and 52.219-33(c)(1)(i)(B) differs from the threshold in 13 CFR §121.406(c).

And I have stated I do not see a conflict. Therefore, there is no choice to be made as to which regulation to follow.

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On 8/27/2020 at 11:12 AM, joel hoffman said:

Since there are authorized deviations to the FAR, does the wording of the Poll need to be revised? 

Why? The poll isn’t about the DoD’s deviation nor the CAAC Letter. The question stands alone.

If that’s hard to understand, just consider the years there was no deviation; think about future cases such as FAR Case 2016-002, Applicability of Small Business Regulations Outsidethe United States.

This was and is a post to talk through appropriate responses to conflicting regulations.

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1 hour ago, Jamaal Valentine said:

This was and is a post to talk through appropriate responses to conflicting regulations.

Jamaal, are you interested in the general topic of how to address conflicting regulations or the specific question you asked in the poll question?

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19 minutes ago, Retreadfed said:

Jamaal, are you interested in the general topic of how to address conflicting regulations or the specific question you asked in the poll question?

Both; however, the poll relates to the regulatory language (without consideration of the DoD Deviation or CAAC Letter). It’s a single, scenario-based, question asking what people would do ‘as framed’.

I fully expected commentary and discourse in the comments. It’s WIFCON.

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16 hours ago, Jamaal Valentine said:

Both; however, the poll relates to the regulatory language (without consideration of the DoD Deviation or CAAC Letter). It’s a single, scenario-based, question asking what people would do ‘as framed’.

I fully expected commentary and discourse in the comments. It’s WIFCON.

The commentary and discourse are excellent. However, the question is technically unanswerable if the FAR deviations by DoD and CAAC fixed the discrepancy. That's why I originally asked if there should be revision to the poll choices. 

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7 hours ago, joel hoffman said:

The commentary and discourse are excellent. However, the question is technically unanswerable if the FAR deviations by DoD and CAAC fixed the discrepancy. That's why I originally asked if there should be revision to the poll choices. 

In reality, there is a discrepancy, but there are deviations (that came much later) to resolve them.

For purposes of this poll, just respond to the question based on the information and scenario provided and add commentary in the comments. No different than many standardized WIFCON quizzes, polls, etc. that are framed. Don’t read into it, overthink, or over-complicate it with extrinsic information (Deviations). (If it helps, consider what you would have done during the years there weren’t any class deviations)

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  • 2 weeks later...
On 9/2/2020 at 3:29 PM, Jamaal Valentine said:

Don’t read into it, overthink, or over-complicate it with extrinsic information (Deviations).

😂😂😂 

-

In all seriousness though, the poll concerns the FAR v. CFR. 

FAR wins.

If a change is made to FAR or a deviation is provided to clarify/correct the error then great. 

We make the best decision we can to be in compliance with the information on-hand at the time. All I am saying. 

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On 9/17/2020 at 4:14 PM, Retreadfed said:

Why?

FAR 1.101 - "The Federal Acquisition Regulations System is established for the codification and publication of uniform policies and procedures for acquisition by all executive agencies. The Federal Acquisition Regulations System consists of the Federal Acquisition Regulation (FAR), which is the primary document, and agency acquisition regulations that implement or supplement the FAR." (EA)

The CFR is a tool the Executive Branch of the government uses to execute the laws and programs enacted by Congress and how they are implemented. 

The resulting regulation (FAR in this case) has the force and effect of law. 

 

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1 hour ago, Constricting Officer said:

The resulting regulation (FAR in this case) has the force and effect of law. 

Do SBA regs have the force and effect of law?  If so, why don't they take precedence over the FAR since under the Small Business Act it is the SBA that writes rules relating to small business matters?  More importantly, what gives the FAR Councils the authority to write a rule that is inconsistent with a rule written by the SBA in fulfillment of its statutory mandate?

 

1 hour ago, Constricting Officer said:

The CFR is a tool the Executive Branch of the government uses to execute the laws and programs enacted by Congress and how they are implemented. 

The CFR is how the government provides notice of the content of rules to those effected by rules promulgated by the executive branch.  Publication in the Federal Register and CFR is notice to the world of the content of Federal rules so that those effected by those rules are bound to comply with them.

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30 minutes ago, Retreadfed said:

Do SBA regs have the force and effect of law?  If so, why don't they take precedence over the FAR since under the Small Business Act it is the SBA that writes rules relating to small business matters? 

The SBA regs do, but only as it relates to the Small Business Act (PL 112-239 § 4 (a)). Doesn't mean they have the final decision on the acquisition strategies of executive agencies no more then GAO does when it comes to protest decisions. Let's not forget our friends in DC have consistently, with no end in sight, pass laws that are inconsistent with laws already on the books. That's why the Judicial Branch exist.  

42 minutes ago, Retreadfed said:

More importantly, what gives the FAR Councils the authority to write a rule that is inconsistent with a rule written by the SBA in fulfillment of its statutory mandate?

They aren't suppose to, but they do. Let's not forget that the SBA has authority in their sector, but FAR 19.201 (b) pretty clearly removes it - "Heads of contracting activities are responsible for effectively implementing the small business programs within their activities, including achieving program goals."

  "Effectively implementing" is trashcan wording. Tells me if the HCA says forget small business this quarter, you can.

I have no comment on your second statement as you said the same thing in a more wordy fashion.

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