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For those wondering what kind of analysis and discernment are necessary to decide whether or not to apply FAR Part 19 to an foreign contract, I suggest a close reading of the Comments and FAR Council responses to the Final rule. The comments acknowledge some criteria and circumstances that would likely make it challenging, difficult, impractical or almost impossible to apply Part 19.

In particular, DoD installations and activities in foreign countries often involve country to country agreements (e.g.,assistance agreements, Status of Forces Agreements, Treaties, etc.). We are foreign guests operating in others’ Home countries and communities. Our operations affect the local populations, business communities and work forces.

Applying Set-asides that might affect or shutout  local contractors, workforces , skilled labor, manufacturers, supplier sources and relationships should be considered. Logistics should be considered. Financing and currency factors must be considered. 

There was very good discussion of various constraints and hurdles to consider and overcome for construction projects, such as  design standards, laws, ordinances, codes, materials, cultural issues, geography, environmental, means and methods, labor forces, suppliers and trade subcontractors, continuing responsibilities such as warranty support, etc.

These risks, challenges and considerations are particularly applicable to any small business, especially to US small businesses and emerging small businesses attempting to operate in many foreign countries.

If the acquisition team isn’t familiar with or able to assess such considerations, then they have no business imposing US Socioeconomic business policies and procedures in host nations.

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50 minutes ago, joel hoffman said:

For those wondering what kind of analysis and discernment are necessary to decide whether or not to apply FAR Part 19 to an foreign contract, I suggest a close reading of the Comments and FAR Council responses to the Final rule. The comments acknowledge some criteria and circumstances that would likely make it challenging, difficult, impractical or almost impossible to apply Part 19.

I think that's good advice. However, given the issues, the stakeholders, and the potential for litigation, costs, and delays--and despite ji20874's apparently faith in contracting officer judgment--senior agency acquisition officials should provide chiefs of contracting offices with some guidance. They should at least provide a list of things to consider when deciding whether to apply Part 19 to acquisitions outside the U.S. In larger procurements, such decisions should be subject to higher level policy review.

No one really likes oversight, but there should be oversight when the stakes are high. I agree with ji20874 that there are many "good" contracting officers out there, and I think the best of the good ones will want some backup in this matter.

Like Don, I believe that we'll eventually see litigation, whether or not this year. Agency acquisition chiefs would be wise to ensure the appropriate use of discretion and consistent policy application. 

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7 hours ago, Don Mansfield said:

I predict we see a protest by the end of the year.

Yep....  I like discretion, provided it is not abused to avoid a more complicated but better solution.  In my world, the work is almost proportionally overseas and not overseas under the same contract, and there are plenty of small businesses who want and can do it, so technically I should be doing market research and then setting-aside in every case that FAR 19 tells me to.... but the pressure form the "big" guys is for me to use "discretion" not to set aside, because they do not want smalls getting the work and then growing to compete with them.    And, no, the contract does not require it to be done one way or another (in or out of US), it just has to be done.  But more importantly, why should it matter where the performance is if there are two (or many more) US small businesses who can do it?  Isn't this the whole idea? Wouldn't the "discretion" be better exercised in analyzing the market and capability of smalls to do the work?

 

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1 hour ago, Vern Edwards said:

and despite ji20874's apparently faith in contracting officer judgment--senior agency acquisition officials should provide chiefs of contracting offices with some guidance

Vern, There is no "despite" -- as I said earlier in this thread, "I hope HCAs and contracting officer chiefs will help guide contracting officers in the careful use of the available flexibility."

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1 hour ago, Tzarina of Compliance said:

but the pressure form the "big" guys is for me to use "discretion" not to set aside

Really?  Like the old hymn, Do What Is Right, Let the Consequence Follow.  If you believe a procurement should be set aside, then do it!  Don't wring your hands and expect the FAR to be re-written to mandate the set aside.  You have the discretion, so do it!

1 hour ago, Tzarina of Compliance said:

Wouldn't the "discretion" be better exercised in analyzing the market and capability of smalls to do the work?

Do it, Tzarina!  You already have the discretion to do as much market analysis as you want to -- do it!

If there is a problem with your organization, the problem is with your organization -- your problem is not with the FAR text.

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12 minutes ago, ji20874 said:

Vern, There is no "despite" -- as I said earlier in this thread, "I hope HCAs and contracting officer chiefs will help guide contracting officers in the careful use of the available flexibility."

@ji20874You did say that. But I want more than guidance. I want oversight. I do not want the decision left to contracting officers, good or otherwise.

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21 hours ago, Don Mansfield said:

I predict we see a protest by the end of the year.

I predict several GS-12s, GS-13s, and GS-14s will gang tackle said protest at a premium cost to the taxpayer.

I wonder if the FAR council considered this.

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23 hours ago, Vern Edwards said:

They should at least provide a list of things to consider when deciding whether to apply Part 19 to acquisitions outside the U.S. In larger procurements, such decisions should be subject to higher level policy review.

From a very negative view point they have and will continue to do so.   That list will be short  - hey we have not met our small business goals so make some of these foreign procurements set-aside.  Absurd thought?   Not from my experience where I saw demands to do such with non-foreign procurements.   

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  • 2 weeks later...

In this thread, ji20874 and I have engaged in a little back and forth about contracting officer exercises of professional judgment and discretion. And I think that ji will agree with me that the proper exercise of CO judgment and discretion requires knowledge of not just the what and the how of the rules, but also the why.

I'm talking now about the conceptual ideal of the CO.

On May 11, Bob notified us about a recent bid protest decision by the U.S. Court of Federal Claims, Seventh Dimension, LLC v. U.S., No. 21-2275C, May 11, 2022. The protester challenged the CO's decision to cancel a solicitation after receipt of proposals, which was based on FAR 15.206(e).

The court held if favor of the protester, vacated the agency's decision to cancel, and enjoined the agency from proceeding with any procurement actions "until further notice." It ordered the agency to either award a contract to the protester or issue a new cancellation decision within 60 days. The agency must explain its decision to issue a new cancellation decision. The court retained jurisdiction over the case for the time being. 

The reason I bring the case up in this thread, which is about a different matter, is that Part V of the decision, pp. 14 - 37, is a beautifully-written textbook illustration by Judge Solomson of the kind of deep reading and interpretative analysis and thinking that I believe COs should be able to do (with advice from their lawyers, of course) when exercising judgment. It is one of the best examples I have seen in a bid protest decision. It should be mandatory reading by all procurement analysts, contract specialists, and contracting officers. Reading it is an exercise in learning the why, instead of just the what and the how. Whether Judge Solomson would be upheld by the Federal Circuit if the Army appeals is another matter. His explanation of his analysis is simply wonderful.

For anyone who enjoys thinking—serious acquisition practitioners who want to express well-reasoned and respected opinions and who don't just want to be told what to do by their lawyers—it is a joy to read.

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Vern, that is a joy to read.   I quickly read the decision after Bob originally posted but scanned through the part you noted without catching the significance.  

I especially like the Judge’s lead in

Quote

We begin our tour of the legal landscape with the statutory provisions.

 

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Legal analysis and writing, done well, is a gift.

I recently finished a class on legal research, analysis, and writing. Judge Solomson demonstrated many of the tips and best practices I recently discovered. One thing I noticed was that a secondary source was cited. Although the secondary source is not a mandatory authority, it is persuasive.

Judge Solomson provided a valuable example of deductive reasoning, analogical reasoning, and policy-based reasoning in action. I will use this case in our training program.

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  • 3 weeks later...
On 4/28/2022 at 10:16 AM, ji20874 said:

Really?  Like the old hymn, Do What Is Right, Let the Consequence Follow.  If you believe a procurement should be set aside, then do it!  Don't wring your hands and expect the FAR to be re-written to mandate the set aside.  You have the discretion, so do it!

Do it, Tzarina!  You already have the discretion to do as much market analysis as you want to -- do it!

If there is a problem with your organization, the problem is with your organization -- your problem is not with the FAR text.

Agree!  Much appreciate everyone's time and support !

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