Lionel Hutz

In my opinion, you cannot determine whether an item is COTS without also looking at the definition of Commercial Product, as a portion of that definition is incorporated by reference into the COTS definition. The COTS definition states in part: Commercially available off-the-shelf (COTS) item — (1)Means any item of supply (including construction material) that is– (i)A commercial product (as defined in paragraph (1) of the definition of “commercial product” in this section); Paragraph (1) of the Commercial Product definition states: (1) A product, other than real property, that is of a type customarily used by the general public or by nongovernmental entities for purposes other than governmental purposes, and– (i)Has been sold, leased, or licensed to the general public; or (ii)Has been offered for sale, lease, or license to the general public; Importantly, the COTS definition incorporates only Paragraph (1) and does not include the other categories of Commercial Products such as (2) products evolved from Commercial Products and not yet commercially available but will be by the time of delivery, or (3) Commercial Products with certain types of Modifications. By incorporating only the portion of the Commercial Product definition that does not contemplate any modifications and then reinforcing the point by stating the COTS item must be “Offered to the Government, under a contract or subcontract at any tier, without modification,” suggests there cannot be any change from what is sold to the general public in substantial quantities. The fact that there are different versions of the same item sold to the general public doesn’t mean that you are getting something modified. For example, Apple sells iPad models with different amounts of memory. When you ask a vendor for an iPad with 2TB of storage, you are not asking Apple to make a modification of a 1TB iPad. Each unmodified model is sold by Apple in substantial quantities to the general public and is a COTS item. But, Apple also offers Custom Engraving and Personalization of iPads. This is a modification of a type customarily available in the commercial marketplace. Therefore, under Commercial Product definition (3)(i), it would still be a Commercial Product. However, it would NOT be COTS because it does not fall under definition (1) and it has been modified. What if I ask Apple to deliver a camouflage iPad, which (let’s assume) is not available in the commercial marketplace? I would still consider this to be a Commercial Product because changing the color to camouflage is a Minor Modifications that while not customarily available in the commercial marketplace is made to meet Federal Government requirements and does not significantly alter the nongovernmental function or essential physical characteristics of an item or component, or change the purpose of a process. But, again, it would NOT be a COTS item because it has been Modified and relies on Commercial Product definition (3)(ii) not definition (1). What if Apple has an upgraded iPad that is 10 times more powerful and will be released and sold the general public next month when the government requires delivery? This would be a Commercial Product under definition (2), but not under definition (1) and therefore not COTS. So, there are lots of ways for items to qualify as a Commercial Product. But, in my opinion, if you have to provide instructions to the vendor beyond telling them the quantity and the item name, stock number, or other identifier, then you are drifting away from Commercial Product definition (1), and while it still may be a Commercial Product it is likely not COTS.

Using the examples you provided, the EPA has a requirement for an outside party to provide evaluation services on a competitive R&D acquisition. If the EPA were to contract for these services, it would be an Advisory and Assistance contract subject to the requirements of FAR SubPart 37.2. If the EPA gets those services from another agency, then the services are not Advisory and Assistance services because the FAR defines Advisory and Assistance services as being, in part, "services provided under contract by nongovernmental sources..." There is a little bit of circular logic going on there, but that's how it is defined. But, let's say the EPA thinks it may want to contract for these services (thereby making them A&A services and subject to SubPart 37.2), one of the first thing EPA must do is determine whether there are personnel in other agencies that can provide the services. If so, and it makes sense from an administrative and cost perspective, and the other agency is willing, then the EPA must enter an Interagency Agreement for those services. So, you have two ways in which the EPA can end up with H&HS providing those services. One, EPA already knows H&HS can and will provide the services and we never even look at the FAR. Or two, EPA thinks it will contract for A&A services, but by following the procedure at FAR Subpart 37.2, they discover that H&HS is wiling to enter an agreement to provide those services. In either case, once it is decided that H&HS is providing the services, EPA is no longer dealing with an Advisory and Assistance contract as that term is defined in the FAR. The parties must still enter an Interagency Agreement that details the work H&HS will do for EPA. And absent some other statutory authority, that IAA will likely be an Economy Act agreement under which the EPA must reimburse H&HS for the actual cost of providing the services. But, this would all be done under agency regulations and policies implementing the Economy Act (or whatever statutory authority is being used).

In my opinion, the scope of your questions are beyond what can reasonably be addressed on a message board. I recommend consulting the SBIR website, which has a list of resources (https://www.sbir.gov/resources) including a number of tutorials on all aspects of the process. (https://www.sbir.gov/tutorials) In addition, they have compiled a list of resources that might be close to you. "The SBA works with several local partners of various organizational types to train and support potential SBIR/STTR applicants around the country. Check now to find the help you need, from proposal assistance to SAM registration, commercialization support to industry connections." https://www.sbir.gov/local-assistance

Even without a signature, "substantial performance" by the contractor creates a binding contract that prevents the government from "withdrawing" the offer. (See, FAR 13.004(b) and https://www.asbca.mil/Decisions/2012/57816 DODS, Inc. 6.18.12 WEB.pdf)

See here: https://sewpdev.servicenowservices.com/support/?id=kb_article_view&sys_kb_id=d1a0ec8bdbb49b00525bf3421f96194d

Aaaaaand we're back on... https://www.govexec.com/workforce/2022/04/appeals-court-reinstates-bidens-vaccine-mandate-federal-employees/365413/

Thanks Vern, I'll take a look.

The language you quoted does not support your first statement. The UN designates countries as LDCs. The USTR then may select countries off of the UN's list to make them eligible countries under the TAA. If the USTR does not designate an LDC under the TAA, it is still a designated UN LDC, it just does not get the benefit of being an eligible country under the TAA. Now, if you want to revise your statement to say that the authority to designate an LDC as a designated country under the TAA comes from the TAA, then yes, I agree with you. Also, I think you have misconstrued my previous statement. I stated that if the "waiver authority" of the TAA (i.e., 19 U.S.C. § 2511(a)) were struck down, 52.225-11 would not be affected. The authority to designate an LDC as a designated country (19 U.S.C. § 2511(b)) is separate from the waiver authority and also affects the TAA's "Authority to bar procurement from non-designated countries." 19 U.S.C. § 2512(a)(1)(A)(i). The BAA (41 U.S.C. § 8303(b)(1)(B)) expressly incorporates into its waiver the list of LDCs designated under the TAA and listed at FAR 25.4. So, if the TAA designation authority were struck down, and there were no more TAA designated LDC's, then I'm sure FAR 25.4 and 52.225-11 would be amended to remove the list of countries. But, in the end, the clause relies on the BAA, not the TAA, for its authority to waive the list of countries at 25.4. In my opinion, referring to a list of TAA designated countries (as directed by the BAA) is not "implementing" the TAA. Don, it is unclear to me what your position is. Are you saying that 52.225-11 only implements the TAA? Or, are you saying it implements both the TAA and the BAA at the same time? If it is the latter, how do you account for the fact that the TAA and BAA have different tests to determine whether a material is foreign or domestic? The TAA uses a substantial transformation test, while the BAA has a component cost percentage test. There are situations in which material could be domestic under the BAA but foreign under the TAA, and vice versa. How would that work under a clause implementing both statutes? I'd note that 52.225-11 implements the BAA's component test.

No. The UN designates countries as LDCs. (https://unctad.org/topic/least-developed-countries/recognition) See also the definition of LDCs in the TAA: "The term 'least developed country' means any country on the United Nations General Assembly list of least developed countries." 19 U.S.C. § 2518(6).

No. The BAA states it does not apply to any articles, materials, or supplies procured pursuant to a least developed country designation. 41 U.S.C. § 8303(b)(1)(B). So, even if the TAA no longer excepted materials from least developed countries, the BAA still has its own exception that applies.

Yes it does. I don't support a broad interpretation of 25.401(a)(1). I do not think FAR 52.225-11 is attempting to implement 25.401(a)(1).

Yes, it implements the trade agreements listed. The clause even has Alt 1 that accounts for acquisitions that exceed most of the agreement thresholds, but not all of them. The BAA allows the government to waive its application if the price of foreign construction material is unreasonable. This is implemented in the clause (paragraphs (b)(4), (c ), and (d)) by allowing the contractor to submit evidence that the cost of domestic construction materials exceeds the cost of foreign material by more than 20 percent. The KO can then add that domestic construction material to the list of materials to which the BAA requirements do not apply. (Paragraph (b)(4).) The Trade Agreements Act does not provide for a waiver based on “unreasonable cost.” If the clause were implementing the TAA, it would say the contractor is required to provide domestic or designated country construction materials, with the only exception being a KO determination that there were no offers for such products or that the offers for those products are insufficient to fulfill the requirements of this solicitation. See, e.g., FAR 52.225-5(b) and FAR 52.225-6(c).

Yes, it implements the BAA, which has provisions to account for the WTOGPA. And the WTOGPA is listed in FAR 25.400.

No, it does not. FAR 25.401(a)(1) exempts small business set-asides from the applicability of FAR Subpart 25.4. FAR Subpart 25.4 contains regulations that implement the Trade Agreements ACT. An acquisition can be outside the scope of Subpart 25.4 and yet still be covered by other laws, such as the BAA, that ALSO have provisions that deal with the WTOGPA. Each statutory authority stands on its own. Conceivably, you could have 10 different statutes that implement portions of a trade agreement. Or perhaps its the other way around and the one trade agreement addresses the requirements of 10 different statutes. Either way, if one of those statutes and its implementing regs says it does not apply to a subset of acquisitions, that does not mean the other 9 also do not apply.

One thing that I think will help people see the difference is that the BAA’s restrictions and waiver for designated countries is different than the TAA’s waiver and restrictions. First, let’s look at the BAA-Construction Materials as implemented in 52.225-9, which provides that contractors may not provide foreign construction material unless the Government (i.e., the KO) determines that an exception to the Buy American statute applies. Among others, there are exceptions for COTS construction materials, information technology, and foreign construction material excepted by the KO. The KO can except construction material if the “cost of domestic construction material would be unreasonable.” The clause the states that the cost is unreasonable if the domestic material exceeds the cost of foreign material by more than 20 percent, and it allows the contractor to submit data to support the determination and exception. 52.225-11 is similar but adds the exception that if the value of the acquisition exceeds the WTOGPA threshold, then the domestic restriction is waived, but only for designated country construction materials. In other words, you treat domestic and designated country materials equally. But, the agency can still purchase foreign materials if the contractor demonstrates the cost of domestic or designated country material exceeds the cost of foreign material be more than 20 percent. Now, let’s look at the Trade Agreements Act. In general, when applicable the TAA does two things: (1) It waives the BAA, and (2) It imposes its own purchase restrictions. The first thing to note is that the TAA waiver is similar to the BAA waiver in that it requires designated country products to be treated the same as domestic products. But, as implemented under the FAR, the TAA does not waive the BAA when the contract has been set aside for small businesses, a significant difference. In addition, the TAA purchase restriction is different. As implemented in FAR 25.403, it states that only U.S.-made or designated country end products or services may be purchased unless such end products or services are either not received or are insufficient to fulfill the requirements. There is no exception in the TAA or FAR Subpart 25.4 that allows you to purchase foreign construction material based on an “unreasonable cost” determination. Further, the manner in which you determine whether an article is domestic/US-Made vs designated country vs foreign is different between the BAA and TAA. This is why you cannot have one clause implementing both the BAA and the TAA. They have different and conflicting requirements. As a law firm noted in this article, “where the TAA applies, the BAA does not apply.” The BAA and TAA are similar in many ways and there is overlap in their subject matter coverage. If different regulations had been promulgated, the line differentiating the application of the two could have been different. But, as practitioners, KOs should follow the line that has been established by the applicable regs and follow the clause prescriptions.