Martin

The "convincing arguments" I was referring to are found on posts 11-16 of the follwing discussion. They shed light as to the place of performance of supplies for FAR 19 purposes. http://www.wifcon.com/discussion/index.php?/topic/871-far-part-19-applicability-in-foreign-countries/ Assuming you agree with Don and Napolik's analysis, one could argue that the place of performance for a supply is not the place where the item is manufactured.

Some of the issues were previously discussed in the following Wifcon post. http://www.wifcon.com/discussion/index.php?/topic/871-far-part-19-applicability-in-foreign-countries/ Napolik and Don Mansfield had some very convincing arguments.

Boof, Is your agency supplement silent on this matter?

Agree with Boof. The SBA proposed rule posted Dec 29 tries to clarify self-performance requirements for software under small business set-asides.

mettec: I was aware of the calculations for the IT VAR. At least 15% and no more than 50% of value added services as measured by the total price less the cost of information technology hardware, computer software, and profit per footnote 18. My comment in regards to footnote 18 was to clarify that I am only buying software and as such cannot take advantage of the flexibilities afforded under the IT Value Added Reseller approach. The reason for my post is a somewhat recent interaction I had with the SBA. I tried obtaining an individual waiver of the non-manufacturer rule from the SBA for the purchase of software licenses. At first I classified the procurement under NAICS code 511210 (Software Publishers, Packaged). The SBA responded that it was not a manufacturing NAICS code and as such a NMR waiver could not be processed. I then changed the NAICS to 334614, to which the SBA responded that designing developing and publishing software is a service, not manufacturing. Just venting a bit, but while the SBA rules are relatively straightforward when dealing with services and “tangible” products they are a mess to apply in the case of software. After all, is software really manufactured as described in 13 CFR 121.406 ( b ) ( 2 ) and FAR 19.102( f )( 1 )? Maybe I should have argued that the software was initially developed by a US small business concern and this small business subsequently sold the rights to commercialize the product to a large business (i.e. other than a small business concern). While we are acquiring a license to use the software from a large business the actual “manufacturer” was a small business concern and as such a NMR waiver is not required. The again, I should have stayed away from a small business set-aside and gone out unrestricted.

Jonfucius: 541519 under the VAR (150 employee size standard) - I am not buying any services, just software. The purchase does not meet the requirements of footnote 18 of the SBA Table of Small Business Size Standards. Would you classify buying pre-packaged software as a service under NAICS code 541519 (subject to the $27.5 million size standard)?

Troy: People might throw the $500 figure around due to FAR 52.214-22 and FAR 14.201-8 ( C ). I wouldn't use it as a basis for the determination you mention in your original post.

Jonfucius: FAR 52.219-14© If you consider pre-packaged software to be a manufactured product or other supply item and purchasing from a nonmanufacturer see also 13 CFR 121.406. Price of the software exceeds $25,000. Would you classify pre-packaged software as a service or as a supply? What NAICS code would you use?

What self-performance requirements must a firm meet in order to provide "pre-packaged" software under a small business set-aside? By "pre-packaged" think of a firm selling / licensing software that is available in the commercial marketplace (think Microsoft Office or similar).

The Best Procurement Approach Determination applies to FSS orders exceeding $500k. Economy Act determination and findings do not apply to FSS orders of any value. See FAR 17.502-2 ( b ).

Mr. Edwards, Your question has sparked my curiosity. Unfortunately the OP has not responded. For arguments sake, let’s say the contract for the system or service was awarded as an 8(a) sole-source. What then? Will the exception at FAR 9.505-2 ( b ) ( 1 )( i ) apply?

You might want to check what the CPARS manual has to say. I haven't read the new one, but I recall a while back that reports were not to be used for advertisement or promotional purposes. That being said, unless your company has to agree to some terms of use prior to gaining access to CPARS I doubt an user manual published on the CPARS website is binding.

I do not dispute the fact that FAR clause 52.232-23 is not required in purchase orders per FAR 32.806 ( a ) ( 1 ). However, if the purchase order is for commercial items assignments are covered under FAR 52.212-4 paragraph b.

Don, I work for a civilian agency for which the BOPP does not apply and for which the agency FAR supplement provides no further guidance. My questions were more in line with what is discussed in Westlaw Journal, Government Contract, Volume 24, Issue 6 by Jeffrey Belkin and Donald Brown. If the BAA does not apply (IT exception, foreign use, etc.) why apply the TAA?

Your reasoning makes sense to me. Not that my opinion matters much. I never fully understood the language in FAR 25.402( a )( 1 ) If the Buy American Act does not apply (due to supplies being used outside the US) what discriminatory provisions will the TAA waive? Would you apply the TAA if the supplies being purchased fell under the FSGs covered in DFARS 225.4 even if the supplies are to be used outside the US?