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Fara Fasat

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  1. Not rhetorical at all. Most primes have their own standard subcontract terms that cover all the essentials -- delivery, invoicing, payment, etc. They all have purchasing departments, and they all a standard PO with their terms. Why include a FAR/DFARS clause for something that is already covered, and that may well be inconsistent? Of course, it takes some thought and effort to tailor the subcontract, so they don't bother. Or they resort to the "self-deleting" dodge.
  2. Please note that I didn't assert that without protests the government would be getting less than best value. I said that if that were the case, the cost of eliminating protests should be balanced against it. You have determined that there is no evidence the government was stuck with second-best goods, so eliminating protests outweighs it. In other words you have considered the reasons for the fence, determined that they don't justify the fence, and recommend tearing it down. Chesterton would approve.
  3. You're right, I should have been more specific that I was only referring to the one type of harm. There are others, and I do agree that we don't need the protest system to remedy those. For example, if there is a process mistake by the government (and there are many protests sustained on that basis), Vern's proposal is appropriate. Probably for most other protest grounds as well. My reservation is for acquisitions where the government gets less than it wanted. How do you remedy those ? That's one type of harm that is not remedied by just paying the costs of the losing bidder.
  4. Not really. You're extending what I said. There could be many reasons for allowing protests. That is just one, and it certainly would not apply in all cases. In many cases a protest is sustained because the process was flawed or rules were violated, and the same contractor wins again in the recompetition. Other grounds for protest are based on maintaining the integrity and fairness of the system, and probably don't result in a better product being selected. But in a case where fraud or corruption leads to the selection of an inferior product, then yes, eliminating protests leaves the government stuck with that inferior product. I'm saying that you have to understand the reasons for having protests in the first place. Somebody thought there was a harm to be addressed, and somebody created the protest system to address them. Were they wrong? Any reform must make the case that notwithstanding the harms, we are better off without the protests.
  5. By the way, the heavy metal band Iron Maiden used some Chesterton lines in one of their songs. Best endorsement I know of!
  6. Yes reform is needed, but is the answer to eliminate protests completely? What about the harm to the government? If fraud or corruption, or even just a poorly-conducted acquisition, leads to the government not getting the best product or the best services, how does "pay their costs" remedy that? Sure the harmed bidder gets compensated, but the government is stuck with a second-best, or worse, product or service. Should the government have to accept inferior products or services because we took an ax to the protest system? This leads back to my original post about understanding why there are protests in the first place. I refreshed my vague recollection, and the principle is known as "Chesterton's Fence", named for a concept introduced by English author and philosopher G.K. Chesterton. The most condensed version of this is: 'don't remove a fence until you know why it was put up in the first place.' Failure to address the reasons for its existence can lead to unintended consequences, or a worse situation than what existed before. Let's assume that one of the reasons for the protest system is to ensure that the government gets the best product or service for its money (excluding LPTA of course). If we simply pay off the losing bidder, we have left that harm in place. Are we better off by tearing down the protest fence and letting in the harm, or is that harm outweighed by the harm of the extra delays and costs of protests? It seems to me that a proposal to reform the protest system needs to take each reason for the existence of protests, and answer two things: 1 - is the reason valid, or can the acquisition system function adequately without fixing that reason via protests? If the reason is valid, then 2 - does the proposed reform maintain a remedy for the harm that protests addressed, or does it 'throw out the baby with the bathwater'? i don't know the answer. It may be that the harm from protests (delays, costs, etc) outweighs the occasional second-best product or service. After all, the commercial world survives without protests. But I think that the proposed reform needs to make that case. Chesterton would ask you - why was the protest system created in the first place.
  7. I am badly citing something I've read/heard before, but it says basically -- if you want to eliminate something, first you have to answer why it exists. In this case, why are bid protests allowed? They have no equivalent in the commercial world, so how do companies survive without it? As I have said in many classes - you lick your wounds, learn from your loss, and move on to the next opportunity. Before even addressing the costs, the delays, etc, you must address why protests exist, and then explain why the harm from removing protests won't outweigh the interests that are being protected. In other discussions on this forum, some have stated that government money is taxpayer money, and that COs have a sacred duty to use that money fairly. Is that the reason? Is that a better reason than the fiduciary duty a corporation has to its shareholders? Are there reasons other than making sure that taxpayer money is fairly handed out? I realize I'm just throwing out some thoughts, not solutions. But you're the deep researcher, not me. 😀
  8. It would be nice if we could rely on the CO's clause selection. Unfortunately a GAO study a few years ago found that in about 60-70% of acquisitions, the government used the wrong BAA/TAA clauses. I frequently see both BAA and TAA clauses in a contract, even though they are mutually exclusive.
  9. I don't know the details of the contract or the products that the SB is selling. The fact that 252.225-7001 is in the contract should mean two things: the buying agency is DoD; and the contract value is under the TAA threshold. If the CO has used the correct clause, then a product that meets the definition of commercial information technology should be exempt. You will have to ask the CO is he/she believes the products are commercial IT, and if so, does the exception apply.
  10. The SB is wrong. Only the domestic content test is waived for COTS items. The FAR states it explicitly: "In accordance with 41 U.S.C. 1907, this domestic content test of the Buy American statute has been waived for acquisitions of COTS items." Note, this waiver does not apply to products that are predominantly iron or steel. Maybe your SB is thinking of the exception for commercial information technology.
  11. From the codification of the BAA at 41 USC 8301: The terms "public building", "public use", and "public work" mean a public building of, use by, and a public work of, the Federal Government, the District of Columbia, Puerto Rico, American Samoa, and the Virgin Islands. So an end product is anything acquired for the use of the federal government. An end product is generally what is listed as a line item, but it can get complicated when the government is procuring a system, or products that are intended to work together. When in doubt, ask the CO what they intend to treat as the end product in the evaluation.
  12. See this link to an earlier discussion of the definition of a "conformed contract." https://www.acq.osd.mil/asda/dpc/ce/p2p/docs/training-presentations/2023/Adventures in Contract Conformance.pdf . Basically it is a single document that has all amendments or modifications made up to that date. It can be in a redline version, but as mods are made on top of earlier mods, it is easier to read a clean version. It is more than just a convenience; it is a vital document for understanding the current agreement between the parties. As Carl pointed out, DFARS 204.802 has changed. It happened in 2015 and updated the DFARS to the Electronic Document Access (EDA) system. Apparently the conformance process is now automated in the EDA, with manual input of course. See this 2023 DoD presentation on the process: https://www.acq.osd.mil/asda/dpc/ce/p2p/docs/training-presentations/2023/Adventures in Contract Conformance.pdf . I don't fully understand it because it uses too many acronyms (PDS, CCV, GeX, etc.), but apparently a modification can be inputted at the front end and a conformed contract can be downloaded at the back end. If that understanding is correct, and the process has been followed, then it looks like the government can download a conformed contract. That brings us back to the OP's original question -- why won't they provide a copy to the contractor? It's no longer a question of who performs the manual process of making each change to the contract, so there must be some other reason. Since both parties are contractually bound to that document, why not provide it?
  13. When you say you are "required" to submit business proprietary information, what do you mean? Is it a deliverable? Is it pursuant to an audit? Is it certified cost or pricing data?
  14. If you make a component to the prime's construction material, then your raw material is a subcomponent, and there is no BAA restriction on that. You need to tell the prime the COO of the product you are making (presumably the US) so that the prime can calculate the US content of its construction material. Be aware though of other statutory prohibitions on certain products from China and Russia. Too detailed to go into here. As for iron and steel, that depends on whether the construction material it is going into consists wholly or predominantly of iron or steel. This is now getting too fact-specific for this forum. You need an in-depth discussion with an expert in the BAA/TAA.
  15. Assuming 52.225-11 is the correct clause (the contract is over the TAA threshold), then your obligation is to deliver either domestic construction material, or designated country construction material. To meet the definition of "domestic", it must be manufactured in the US, and have at least 60% US-manufactured content. The content requirement is waived if the construction material is COTS. If you are buying all your components from designated countries, it sounds unlikely that you will meet the 60% US content test. Yes, this places a higher standard on construction material manufactured in the US, because there is no content requirement material from a designated country. That's the way the clause works, and it has been that way for a long time. I don't know whether Congress wrote it that way, but that's how it is implemented in the FAR.
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