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FAR 25 - Buy American Act and Trade Agreements


MileHighAcq

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I’m not sure if this is the case for everybody, but my agency has been dealing with a quite a few Buy American Act (BAA) and Trade Agreements (TA) issues in the last few months – more than I remember my previous 20+ years in government acquisitions. Assuming that it isn’t just my agency, I figured it would be a good idea to start a thread on the subject – a sort of catch-all, as I’m sure the number of questions and issues will only increase in the future.

For starters I’m curious about the prescriptions at FAR 25.1101 and 25.1102 for TA clauses.

Here are a couple of them as examples:

FAR 25.1101(c)(1) Insert the clause at 52.225-5, Trade Agreements, in solicitations and contracts valued at $183,000 or more, if the acquisition is covered by the WTO GPA (see subpart 25.4) and the agency has determined that the restrictions of the Buy American statute are not applicable to U.S.-made end products. If the agency has not made such a determination, the contracting officer must follow agency procedures.

FAR 25.1102(c) Insert the clause at 52.225-11, Buy American-Construction Materials under Trade Agreements, in solicitations and contracts for construction that is performed in the United States valued at $7,032,000 or more.

Neither of these prescriptions mentions anything about small business set-asides, but if you go to FAR 25.401(a)(1), it states “this subpart does not apply to acquisitions set aside for small businesses”.

Presumably this means that TA clauses such as the ones above should not be included is solicitations and contracts set aside for small business concerns. I don’t know if it’s just me, but typically I just go to the prescription for a particular clause or provision, and didn’t think it was necessary to go to the subpart itself and have to make a slight leap of logic that if a subpart (e.g., TA) does not apply to a particular class of acquisitions (e.g., small business set-asides), then we shouldn’t include clauses associated with that subpart in solicitations and contracts for that class of acquisitions.

Additionally, there is the question of what we do with acquisitions where the TA does not apply because while they meet the threshold for TA applicability, they are excepted from the TA by virtue of being set aside for small businesses.

In the case of supplies (52.225-1) it seems clear that the clause prescriptions requires that we include the clause (52.225-1) even above the threshold if the TA clauses don’t apply (see FAR 25.1101(a)(1): “insert clause 25.225-1 in solicitations and contracts with a value exceeding $25,000, if none of the clauses prescribed in paragraphs (b) and (c) [TA clauses applicable to supplies] of this section apply”). However, for construction materials, FAR 25.1102 does not make such a statement about clause 52.225-9 – i.e., that it should be inserted in solicitations and awards valued less than $7,032,000 and solicitations and awards over $7,032,000 if none of the clauses prescribed in paragraphs (b) and (c) [TA clauses applicable to construction] of this section apply.

So does that mean that construction contracts over $7,032,000 that are set aside for small business concerns don’t have either of the BAA or TA clauses/provisions? I honestly don’t think that’s in accordance with the spirit of the law,  but it seems the letter and the spirit of the law don’t quite line up in this case.

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7 hours ago, MileHighAcq said:

So does that mean that construction contracts over $7,032,000 that are set aside for small business concerns don’t have either of the BAA or TA clauses/provisions?

This was the only question in your post. I thought for sure the answer would be "no", but after doing some research, I think you have it right. 

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I think based on a strict reading of the regs, the answer is no, but after I ran it past our solicitor, they came back with the opinion that the BAA would apply for constructions over $7,032,000 if it was set aside for small business concerns. It definitely makes sense from a "spirit of the law" perspective I guess. I mean I don't think you'd want to wind up on the front page of the paper because of a $30 million construction project that used $10 million worth of Chinese steel because it was set aside for small business concerns and the BAA and TA did not apply...

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  • MileHighAcq changed the title to FAR 25 - Buy American Act and Trade Agreements

MileHighAcq,

You must not commingle the Buy American Act-Supplies (FAR subpart 25.1) and Buy American-Construction Materials (FAR subpart 25.2).  You also need to read the clause prescription in 25.1101 (supplies) wholly separate from 25.1102 (construction).  

19 hours ago, MileHighAcq said:

So does that mean that construction contracts over $7,032,000 that are set aside for small business concerns don’t have either of the BAA or TA clauses/provisions?

How did you come to this conclusion?  What in 25.1102 drove you here?

Nothing in 25.1102 makes reference to the exceptions in 25.401 (such as the set-aside exception).  Nothing in 25.1102 tells you to drop the 52.225-11 clause when there is a set-aside.  If you are buying construction in the U.S., you use the 52.225-9 clause below the threshold and you use the 52.225-11 clause above the threshold, period.  You must not push the exception in 25.1101(b)(1)(i)(C) (for supplies) into 25.1102 (for construction).  The FAR treats these separately -- you should, too.

Set-aside status might matter under 25.1101 for supplies.  It is wholly irrelevant under 22.1102 for construction.

If you read the 52.225-11 clause, you will see how it works.

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Yeah, I tried to make a clear distinction between BAA and TA, including the prescriptions for clause 52.225-1 and 52.225-9, however, I believe that there is a parallel between the applicability of the BAA to supplies and construction materials and the two are treated similarly in many ways.

I'm definitely not trying to apply the prescription for 52.225-1 to 52.225-9, but it does make me wonder why the prescription for 52.225-9 doesn't account for the inapplicability of the TA clauses the way the prescription for 52.225-1 does. I can't think of a good reason other than oversight. 

As far as the prescription for 52.225-11, I guess I don't understand why you would include the clause when that subpart does not apply to a class of procurements - in this case small business set-asides. That's kind of the dilemma I'm dealing with - typically I would simply rely on the prescription only for whether to include a clause or provision in a solicitation or contract. But typically the prescription accounts for instances where a subpart does not apply to a class of acquisitions. In this case, the prescription doesn't. I guess I'm just wondering why you would include 52.225-11 (Buy American-Construction Materials under Trade Agreements) in an acquisition set aside for small business concerns when the FAR clearly states that the trade agreements subpart doesn't apply to small business set-asides. Or do you think the clause and the subpart operate separately and independently of each other? To me, that doesn't make sense.

Or are you saying that when FAR 25.401(a)(1) says that the subpart doesn't apply to small business set-asides, it only applies to clauses at 25.1101 and does not apply to 25.1102 - i.e. 52.225-11? I guess I'm not sure how to interpret your statement that "Set-aside status might matter under 25.1101 for supplies.  It is wholly irrelevant under 22.1102 for construction."

I read the clause (52.225-11), and don't see how it resolves the issue of how the clause does/doesn't apply to small business set-asides.

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40 minutes ago, MileHighAcq said:

I guess I'm just wondering why you would include 52.225-11 (Buy American-Construction Materials under Trade Agreements) in an acquisition set aside for small business concerns when the FAR clearly states that the trade agreements subpart doesn't apply to small business set-asides.

Your reading is in error.  You are reading something in 25.1101 (for supplies) and trying to apply it under 25.1102 (for construction).  Don't do that.  Decide which lane you are in (supplies or construction), and then stay in your lane:

  • for supplies, subpart 25.1 and 25.1101; or
  • for construction, subpart 25.2 and 25.1102.

Have you read the 52.225-11 clause?  You should.

42 minutes ago, MileHighAcq said:

I believe that there is a parallel between the applicability of the BAA to supplies and construction materials and the two are treated similarly in many ways.

Whatever parallel there is is already accounted for in the FAR text.  Read it, and follow it.  Do not create your own parallels -- do not apply subpart 25.1 principles (or 25.1101 text) to subpart 25.2 (or 25.1102 text).  Don't do it.  Buy American-Supplies and Buy American-Construction are two entirely different matters.  Do not try to treat them the same way.  Stay in your lane.

 

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@ji20874

I think you're correct regarding the interpretation of the prescription. However,  @MileHighAcq is asking for an explanation of why the FAR would prescribe a provision and clause implementing the policies and procedures of FAR subpart 25.4 in an acquisition set aside for small businesses in light of the exception at FAR 25.401. That's a good question. I can't figure it out. Do you know?

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14 hours ago, MileHighAcq said:

I guess I'm just wondering why you would include 52.225-11 (Buy American-Construction Materials under Trade Agreements) in an acquisition set aside for small business concerns when the FAR clearly states that the trade agreements subpart doesn't apply to small business set-asides.

Here is what I think has happened:

1. You know that FAR Subpart 25.1 and 25.2, which address the Buy American Act, include no exemption for small business set-asides.

2. You also know that FAR 25.401(a)(1) exempts small business set-asides from the trade agreement policies in FAR Subpart 25.4.

3. Then you saw that FAR 25.1102(c) prescribes FAR 52.225-11, Buy American-Construction Materials under Trade Agreements (my emphasis), for use in contraction contracts, but prescribes no exemption for small business set-asides, and the FAR provides no explanation or information that solves what appears to be a paradox.

Do I have it right?

Well, the clause prescription does strike me as peculiar, so I have discussed the matter with others and sought an understanding. But I have found nothing anywhere that resolves the matter.

I know very little about FAR Part 25. I have always found FAR Part 25 and its predecessors in the old Defense Acquisition Regulation (DAR) and Armed Services Procurement Regulation (ASPR) to be extremely complicated and difficult to understand. Those rules seriously challenge my attention span. And when conducting an acquisition we have to get on with things. We can't afford to get bogged down.

I think ji20874's advice boils down to this: Just comply with the clause prescription and move on.

In this case, I think that's reasonable advice. No one could justly criticize you for doing that.

In the very last line of your opening post you said:

On 3/14/2022 at 2:13 PM, MileHighAcq said:

I honestly don’t think that’s in accordance with the spirit of the law,  but it seems the letter and the spirit of the law don’t quite line up in this case.

Frankly, when we start thinking, talking about, and looking for the "spirit" of a law, we have stepped off the main road and are on the road to perdition. In this case I think you should get back on the main road, unless your name is Montesquieu.

"Steal Captain Black's car. That's what I always do."

Thanks for the puzzle. You were thinking, and I learned something.

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13 hours ago, MileHighAcq said:

I guess I'm just wondering why you would include 52.225-11 (Buy American-Construction Materials under Trade Agreements) in an acquisition set aside for small business concerns when the FAR clearly states that the trade agreements subpart doesn't apply to small business set-asides. Or do you think the clause and the subpart operate separately and independently of each other? To me, that doesn't make sense.

I think separately and independently.  Think 52.225-5/6 regarding FTA and 52.225-11/12 regarding BAA.   I may be repeating what others have said but I think of it this way.

52.225-11 is a Buy American clause not a Trade Agreements clause.   By prescription it applies to any construction contracts over $7,032,000 set aside or not.    So I have a small business set-aside with an estimated value above the $7,032,000 therefore I must put the clause in the solicitation/contract.  The small business is restricted to providing domestic material, but this restriction is waived for WTO GPA/FTA material and/or that material for which the CO has otherwise listed.  Pursuant to the clause, and I guess I could say the FAR, all such material is therefore in compliance with BAA.  If the contractor wants to provide material that is not in compliance with BAA the contractor can have the government evaluate whether it can be used by the particular contractor per the clause, again a BAA clause.

Conversely if not a small business set-aside FTA compliant issues come into play as well because 52.225-5/6 will be in the contract/solicitation as well.  Noted here that 52.225-5/6 are not prescribed for a small business set-aside because the acquisition (above $7,032,000) is NOT covered by the WTO GPA, by exemption.

 

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7 minutes ago, C Culham said:

52.225-11 is a Buy American clause not a Trade Agreements clause. 

True -- and this is a fundamental truth to the matter at hand.

18 minutes ago, C Culham said:

By prescription it applies to any construction contracts over $7,032,000 set aside or not.

Right.  The prescription is in FAR 25.1102, which is for construction.

8 minutes ago, C Culham said:

Conversely if not a small business set-aside FTA compliant issues come into play as well because 52.225-5/6 will be in the contract/solicitation as well. 

Not true.  FAR 52.225-5/-6 will not be included in a construction contract.  FAR 52.225-5/-6 is prescribed in FAR 25.1101, which is for supplies.  

Here is the basic message--

  • For supplies:  Use FAR subpart 25.1 and the prescriptions in FAR 25.1101
  • For construction:  Use FAR subpart 25.2 and the prescriptions in FAR 25.1102.
  • Do not mix.
13 hours ago, Don Mansfield said:

I can't figure it out. Do you know?

It's complicated, and I don't remember everything I learned from the USTR -- the answer goes all the way back to the source statutes.  Whenever I think of a BAA or TAA question, I have to put everything else aside and focus solely on that question.  But one thing I remember:  contracts for supplies are treated differently than contracts for construction -- they are different -- that's why the FAR text treats them separately.  One other thing I remember:  the pertinent text in FAR part 25 and in the applicable clauses is very precise, and should be followed.  If a contracting officer will simply include the right clauses pre-award according to their prescriptions, and if a contracting officer will simply read the text of the pertinent clause and do what it says post-award, everything will be so much easier.  A contracting officer should not try to superimpose his or her better judgment on the text.

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Here is what I think has happened:

1. You know that FAR Subpart 25.1 and 25.2, which address the Buy American Act, include no exemption for small business set-asides.

2. You also know that FAR 25.401(a)(1) exempts small business set-asides from the trade agreement policies in FAR Subpart 25.4.

3. Then you saw that FAR 25.1102(c) prescribes FAR 52.225-11, Buy American-Construction Materials under Trade Agreements (my emphasis), for use in contraction contracts, but prescribes no exemption for small business set-asides, and the FAR provides no explanation or information that solves what appears to be a paradox.

Do I have it right?

Thanks Vern. You had my thought process it exactly right. I'll also take your advice about the road to perdition!

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Your reading is in error.  You are reading something in 25.1101 (for supplies) and trying to apply it under 25.1102 (for construction).  Don't do that.  Decide which lane you are in (supplies or construction), and then stay in your lane:

  • for supplies, subpart 25.1 and 25.1101; or
  • for construction, subpart 25.2 and 25.1102.

Have you read the 52.225-11 clause?  You should.

You keep getting hung up on the parallel I was drawing as I was comparing/contrasting the way the FAR treats supplies and constructions regarding the inapplicability of FAR 25.4 to small business set-asides. Don't do that. Stay in your lane.

My question ultimately boils down to this: FAR 1102(c) states the following:

"Insert the clause at 52.225-11, Buy American-Construction Materials under Trade Agreements, in solicitations and contracts for construction that is performed in the United States valued at $7,032,000 or more.

           (1) List in paragraph (b)(3) of the clause all foreign construction material excepted from the requirements of the Buy American statute, other than designated country construction material .

           (2) If the head of the agency determines that a higher percentage is appropriate, substitute the higher evaluation percentage in paragraph (b)(4)(i) of the clause.

           (3) For acquisitions valued at $7,032,000 or more, but less than $12,001,460, use the clause with its Alternate I. List in paragraph (b)(3) of the clause all foreign construction material excepted from the requirements of the Buy American statute, unless the excepted foreign construction material is from a designated country other than Bahrain, Mexico, and Oman."

Whereas FAR 25.401 states the following:

 "(a) This subpart does not apply to-

           (1) Acquisitions set aside for small businesses;"

ji20874 - you seem to be saying just follow the prescription and insert the clause if applicable, regardless of what FAR 25.401(a)(1) says. If I have that right, can you help me understand why I would insert a clause that deals with construction materials under trade agreements in a solicitation/contract that is exempted from the applicability of the trade agreements? I've read the text of the clause and don't understand how that resolves the dilemma. 

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2 hours ago, C Culham said:

52.225-11 is a Buy American clause not a Trade Agreements clause.

What do you mean? The title of the clause is "Buy American--Construction Materials Under Trade Agreements". The clause implements the policies and procedures of FAR subpart 25.4 titled "Trade Agreements".

1 hour ago, ji20874 said:

It's complicated, and I don't remember everything I learned from the USTR -- the answer goes all the way back to the source statutes.  Whenever I think of a BAA or TAA question, I have to put everything else aside and focus solely on that question.  But one thing I remember:  contracts for supplies are treated differently than contracts for construction -- they are different -- that's why the FAR text treats them separately.  One other thing I remember:  the pertinent text in FAR part 25 and in the applicable clauses is very precise, and should be followed.  If a contracting officer will simply include the right clauses pre-award according to their prescriptions, and if a contracting officer will simply read the text of the pertinent clause and do what it says post-award, everything will be so much easier.  A contracting officer should not try to superimpose his or her better judgment on the text.

Thanks for your answer. I think that's good practical advice. One more question. Paragraph (b)(1) of the clause at FAR 52.225-11 says: "In addition, the Contracting Officer has determined that the WTO GPA and Free Trade Agreements (FTAs) apply to this acquisition." How does the contracting officer make that determination without looking in FAR subpart 25.4? 

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26 minutes ago, Don Mansfield said:

What do you mean? The title of the clause is "Buy American--Construction Materials Under Trade Agreements". The clause implements the policies and procedures of FAR subpart 25.4 titled "Trade Agreements".

See clause paragraph (b)(1): "(b) Construction materials. (1) This clause implements 41 U.S.C.chapter 83, Buy American, by providing a preference for domestic construction material."

FAR Part 25 and its provisions and clauses are a mess.

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1 hour ago, ji20874 said:

Not true.  FAR 52.225-5/-6 will not be included in a construction contract.  FAR 52.225-5/-6 is prescribed in FAR 25.1101, which is for supplies. 

Just now, Don Mansfield said:

What do you mean? The title of the clause is "Buy American--Construction Materials Under Trade Agreements". The clause implements the policies and procedures of FAR subpart 25.4 titled "Trade Agreements".

 Gentlemen I get it but then I do not!

I have an anticipated construction contract above $7,032,000.  

1. It is therefore covered by WTO GPA correct? 

2.The contractor is going to use a material from a foreign entity I have to evaluate that material for FTA because FTA applies does it not? 

 a. If the contract was set-aside I do not have to evaluate for FTA, correct?

3.If evaluation for FTA is appropriate  without 52.225-5/6 in the solicitation what authority do I have to do the FTA evaluation?

With the above 3 questions posed, and in some quick research I will stop right here and simply offer the below reference.   

https://marketingstorageragrs.blob.core.windows.net/webfiles/Buy_American_Act_and_Trade_Agreements_Act_Overview_KLGates.pdf

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1 hour ago, Don Mansfield said:

How does the contracting officer make that determination without looking in FAR subpart 25.4?

How about that?  The contracting officer made a determination, but the contracting officer has no recollection or record of making that determination.  I suppose that by following the prescription and including the clause, the contracting officer effectively made the determination.  Think of it as a ministerial act, where the contracting officer has no discretion.  But clearly, the contracting officer made the determination -- FAR 52.2256-11(b)(1) says he or she did.  🙂

 

2 hours ago, MileHighAcq said:

ji20874 - you seem to be saying just follow the prescription and insert the clause if applicable, regardless of what FAR 25.401(a)(1) says. If I have that right, can you help me understand why I would insert a clause that deals with construction materials under trade agreements in a solicitation/contract that is exempted from the applicability of the trade agreements? I've read the text of the clause and don't understand how that resolves the dilemma. 

You simply follow the clause prescriptions in FAR 25.1101 for supplies and 25.1102 for construction.  That is what you have to do.  That is what the USTR expects you to do.  No one will argue with you if you do this.  If you think the FAR text in 25 is incorrect, you might propose a change to your representative on the DAR Council or CAAC.  But I promise you that the clause at FAR 52.225-11 goes in construction contracts in the U.S. over the threshold amount, regardless of set-aside.  FAR 25.1101 (for supplies) reaches back to 25.401 -- FAR 25.1102 (for construction) does not.  I believe that is purposeful, but I cannot explain the reason.

 

1 hour ago, Vern Edwards said:

FAR Part 25 and its provisions and clauses are a mess.

That's true -- but the prescription text in FAR 25.1101 and 25.1102 is correct.  I have always trained contracting officers to simply do what it says, and to stay avoid that road to perdition.  I know from experience that this is what the USTR's office wants us to do.

 

1 hour ago, C Culham said:

I have an anticipated construction contract above $7,032,000.  

1. It is therefore covered by WTO GPA correct? 

See FAR 52.225-11(b)(1).  The contracting officer made that determination already.  🙂

 

1 hour ago, C Culham said:

I have an anticipated construction contract above $7,032,000.  

 *  *  *  *

2.The contractor is going to use a material from a foreign entity I have to evaluate that material for FTA because FTA applies does it not? 

 a. If the contract was set-aside I do not have to evaluate for FTA, correct?

If you are thinking of the evaluation process described in FAR subpart 25.5, then the answer is NO, you do not do that evaluation for a contract for construction -- that entire subpart is and only works for supply contracts, not construction contracts.  That evaluation for supply contracts compares offers, occurs after receipt of proposals, and decide the winner.  The evaluation for construction contracts contemplated by FAR 52.225-11(c) occurs before receipt of proposals, does not involve comparing proposals, and does not decide the winner.

 

1 hour ago, C Culham said:

I have an anticipated construction contract above $7,032,000.  

  *  *  *  * 

3.If evaluation for FTA is appropriate  without 52.225-5/6 in the solicitation what authority do I have to do the FTA evaluation?

See above.  The evaluation contemplated by FAR 52.225-6(c) refers to FAR subpart 25.5, and only applies to contracts for supplies.  FAR 52.225-6 is not included in a contract for construction in the U.S. -- it is not prescribed in FAR 52.1102.

I regret being unable to better explain, but I am acting in good faith to share my understanding of the reality.  Here is the basic message--

  • For supplies:  Use FAR subpart 25.1 and the prescriptions in FAR 25.1101 (note: FAR 25.1101 points back to 25.4 for the set-aside and other exceptions).
  • For construction:  Use FAR subpart 25.2 and the prescriptions in FAR 25.1102. (note: FAR 25.1102 does not point back to 25.4 for exceptions).
  • Do not mix.

My Summary:  I believe it would be grievous error for a contracting officer to issue a solicitation or award a contract for construction in the U.S. over the threshold without the clause at FAR 52.225-11, using as argument that the procurement is a set-aside.   Think about it, MileHighAcq or others -- if this is your argument, what clause will you use?

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18 minutes ago, ji20874 said:

I believe it would be grievous error for a contracting officer to issue a solicitation or award a contract for construction in the U.S. over the threshold without the clause at FAR 52.225-11, using as argument that the procurement is a set-aside. 

It would clearly be in violation of the clause prescriptions. But at this point I think we're all just trying to understand.

For instance, what is the authority for the exception for set-asides, and what is the rationale?

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If we go only by the prescription at FAR 25.1102(c) without looking at the exception at FAR 25.401(a)(1) (which I think is what ji20874 is recommending), then yes, we would include 52.225-11 in a small business set-aside  over the threshold.

However, note that in the prescription for 52.225-5 also, it doesn't mention anything about the TA clauses not applying because the procurement is set-aside (i.e. referencing FAR 25.401(a)(1)), but the prescription for 52.225-1 anticipates the applicability of the exception (even though it doesn't mention it explicitly) by saying "if none of the clauses prescribed in paragraphs (b) and (c) of this section apply".

So in the case of 52.225-5 (for supplies), you have to make the a logical jump that even though your procurement meets the threshold for the applicability of clause 52.225-5, because the exception at FAR 25.401(a)(1) applies, you're not going use that clause, but use 52.225-1 instead.

You see that just like the prescription for 52.225-11 doesn't mention the exception at FAR 25.401(a)(1), the prescription for 52.225-5 doesn't either. But in the case of supplies, you then make a logical jump that because the exception at FAR 25.401(a)(1) applies, you're not going to use that clause (and use 52.225-1 instead). However, we're not willing to use that same logic with regards to clause 52.225-11 - i.e. that just because the clause prescription doesn't specifically mention the exception at FAR 25.401(a)(1), it doesn't mean that the exception doesn't apply.

So the only difference is that FAR 25.1101 provides a path forward for when the trade agreements clauses don't apply to supplies (i.e. revert back to clause 52.225-1), FAR 25.1102 makes no such parallel path forward for construction materials (i.e. revert back to clause 52.225-9). 

But the logical leap you have to make in both cases is the same - namely, that even though the exception is not in the prescription for either clause (52.225-5 or 52.225-11), the exception still applies.

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31 minutes ago, MileHighAcq said:

So in the case of 52.225-5 (for supplies), you have to make the a logical jump that even though your procurement meets the threshold for the applicability of clause 52.225-5, because the exception at FAR 25.401(a)(1) applies, you're not going use that clause, but use 52.225-1 instead.

There is no logical jump.  The text of FAR 25.1101(c)(1) says to use the 52.225-5 clause "if the acquisition is covered by the WTO GPA (see subpart 25.4)..."  So this prescribing text in 25.1102(c)(1) does point back to 25.4 -- and we know from 25.401(a)(1) that the entirety of 25.4 does not apply to set-asides, and WTO GPA is in 25.4, so a supplies procurement that is a set-aside does not fall under WTO GPA, so you don't use the 52.225-5 clause.  So, if a contract for supplies is a set-aside, then you don't use the 52.225-5 clause because the prescribing text in 25.1101(c)(1) says so.  Just follow the text -- there is no need for any logical jump.

 

31 minutes ago, MileHighAcq said:

However, note that in the prescription for 52.225-5 also, it doesn't mention anything about the TA clauses not applying because the procurement is set-aside...

But the prescription for FAR 52.225-5 does point back to 25.4 and the set-aside exception.  Re-read FAR 25.1101(c)(1) -- it clearly and unambiguously points back to 25.4.

 

31 minutes ago, MileHighAcq said:

You see that just like the prescription for 52.225-11 doesn't mention the exception at FAR 25.401(a)(1), the prescription for 52.225-5 doesn't either.

Again, the prescription for 52.225-5 does point back to 25.4.  Re-read FAR 25.1101(c)(1).

 

MileHighAcq, please tell me what clause you would use in a construction contract in the U.S. over the threshold -- it is clear that you don't want too use 52.225-11, so what do you propose instead?  If I knew that, I might be better able to help you.  Do you want to use 52.225-9 instead?  Or no clause at all? 

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ji20874 - I stand corrected, FAR 25.1101(c)(1) does indeed point you back to FAR 25.4 whereas FAR 25.1102(c) does not.

Our solicitor's opinion was to use 52.225-9 in lieu of 52.225-11 when the procurement is set aside for small business concerns. 

I think if we start with the premise that the idea behind the BAA is to protect US businesses from foreign competition it makes a little more sense as to why small business set-asides were excepted from trade agreements applicability, because the idea behind trade agreements was to increase competition (and thus provide less protection to American businesses) by treating foreign products as domestic products if we have a trade agreement with that country above a certain threshold. I think the idea behind the small business set-aside exception to not reduce the BAA protection for American small businesses even if we are above the $7,032,000 threshold.

Although obviously separate and distinct, I think there's a clear parallel between FAR 25.1 and 25.2 and FAR 25.1101 and 25.1102. But there's definitely an inconsistency (in my mind, unintentional) in how the FAR 25.401(a)(1) exception is applied to FAR 25.1101 and FAR 25.1102. Such things can happen when different parts/subparts of the FAR are updated at different times by different people, sometimes wearing blinders and not noticing such inconsistencies. That's the best explanation I can come up with for what appears (to me at least) to be an oversight.

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It sounds like you have a plan to move forward.  Will you be doing a deviation?  FAR 1.401(a) says using a clause in a manner inconsistent with the FAR or the omission of a clause when its prescription requires its use is a deviation, and you are doing both.  

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