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StePa

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Everything posted by StePa

  1. @here_2_help Those were my thoughts exactly and what the DCMA rep told me as well. It seems to be a case of a prime trying to bully a sub into accepting an order for either (a) keeping the price low, (b) ensuring the parts are delivered on time or (c) both. From what @Neil Roberts has stated, it seems like 700.13(c)(1) is the best citation. Just wanted to confirm my thoughts and it seems everyone does agree with me. Thanks all.
  2. Hello Neil. The Sub has a contract with the prime for several parts. This particular part was not listed on the contract with a price. The part was listed as "quote". Prime asked for quote, sub quoted a price for x quantity. Prime submitted rated order for parts at random price which is lower than quoted price. They took a stance that sub must accept rated order regardless of the dispute in pricing. Sub disagrees. Value of the transaction is not in excess of TINA threshold and exception exists if it did. (commercial item). The language "terms of sale" in (c)(1) was what was u
  3. @ji20874 If the prime would make the correction, this would work. They refuse to though. @Neil Roberts Thanks Neil. My concern was that 700.13 outlines acceptance and rejection of rated orders and I wasn't sure if the sub fell under any of the "optional rejections" outlined in subsection (c). I agree with you that non acceptance is the right step but wasn't sure if the regs back us up somewhere.
  4. Hello all, Just putting this topic here because I saw a former topic here. (Apologies if it is the incorrect section) It is similar in nature to this thread. In my scenario though, sub has received a rated order. Prime has put the incorrect price (of course, lower) and sub is rejecting the notion of accepting the order as the prime has put incorrect pricing on the order. Prime is arguing that sub MUST accept the rated order and disputes on price can be made at a later date as the sub performs the contract. I have looked at 15 CFR 700. 700.13(c) (1) (u
  5. From what I can gather then.. NDAs are the preferred industry "best practice" for this particular scenario as no other suggestions have been made. I just wanted to make sure I wasn't missing other steps we could take to protect the data. Thanks all.
  6. @Neil Roberts Reviewed the clause cited and believe it is only applicable to computer software. I did read the equivalent in 252-227-7013(k)(5). I understand that the Prime has an obligation but that does not mean that the sub cannot use any and all means to ensure their data is protected. I just wasn't sure if there is any other methods out there to protect the data in lieu of another NDA.
  7. @Neil Roberts Thanks Neil I will read #1. @Retreadfed I am unaware of what the full CDRL will contain but it should be subject to a patent (existing) while some of the data would be subject to copyright. (mostly data that is readily available to the public) The copyrighted data would not really concern us as it's already out there. The data which is subject to a patent and is considered a trade secret/ proprietary is where our senior execs are concerned.
  8. Sorry about the confusion. So, in this situation, yes the prime is asking for our permission to remove our proprietary markings when the prime submits the data to the USG. From my reading and understanding of DFARS 252.227-7013(h), if we did not give the prime the permission and they submitted the data, our proprietary marking could be removed as being nonconforming. In order to avoid this situation, I believe it best to give permission but also negotiate/ dictate the terms of the prime removing the markings. So I guess my question is: What are the best industry practices to ensure
  9. Hi all, Background: Prime has given us a set of instructions on how Data Rights should be asserted/marked, etc for a contract. DFARS 252.227-7013 (instructions on how to mark GPR, LR, etc) . They include a note that we (the sub) have to give permission to remove our proprietary markings for submission the USG. We are asserting limited /unlimited rights on the technical data. From my reading of the clause, I understand the regulations are clear on what can or can not be marked when submitting to the USG. Question: What are the best ways to protect our limited rights data
  10. Apologies all. I am unsure if the Prime contract is commercial. My reference was to the subcontract aka our contract with the prime being commercial. StePa is just a shorter version of my first and last name @Neil Roberts . Sorry for the confusion. Thanks for the links Don. I will read up on them before adding anything else. Thank you everyone for contributing so far.
  11. Apologies. I accidentally quoted Subsection (e) from 252.246-7008 instead of 7007. Thank you for the assistance!
  12. Hello, they have quoted the clause in the Purchase Order. We have not accepted it. My understanding is that they are required to include it in all their contracts but I am unsure if we are required to comply when I read it even if it is on the PO (subcontract).
  13. Hello I was reading the above DFARS clause and am struggling to figure out if this would apply to a contract ( I am a subcontractor). The clause starts with: " "The following paragraphs (a) through (e) of this clause do not apply unless the Contractor is subject to the Cost Accounting Standards under 41 U.S.C. chapter 15, as implemented in regulations found at 48 CFR 9903.201-1." The contract would be FFP contract for commercial items. It is my understanding that if commercial items are involved, you are exempt from CAS. This originally would lead me to believe that paragraphs
  14. @jayandstacey @Loul Thanks for your feedback/suggestions.
  15. @Retreadfed @here_2_help Thanks. I had assumed this as well but they all mentioned they had some presentation by a law firm years ago which included something about it. Of course, the presentation and slides are no where to be found and my senior leadership can't recall which firm gave that presentation. Thanks again everyone for your input.
  16. @Neil Roberts Hi Neil. You are correct that the prime does not have to advise us whether they accept or approve the CI assertion but they must clearly determinate whether our item meets the definition of a commercial item which the Prime in this situation believes they cannot or will not. I guess I am a bit confused on this section you wrote. "Prior commercial item determinations by prime contractors are not required to be recognized on subsequent buys." Are you saying the prior determinations do not have to be recognized by the USG or the prime? I am aware the USG does not ha
  17. @Vern Edwards I think that part of the decision was made in the situation I posted in my response to Neil. Quoted from my response to Neil: "I have been with this company less than year, but from what I can gather, the history we have with Primes is as follows: 1. Prime requests CIJ. 2. We submit CIJ. 3. Prime never responds whether they accept the CIJ or approve of it as per DFAR 244.402. 4. 1-3 years later, Prime again requests CIJ for the same part number. This point seems to be the main issue that annoys my senior leadership. They don't wish providing addit
  18. HI @Vern Edwards, If it is a prospective customer, we have no problems providing the information from the RFQ to the time the quote is open. We have issues providing the information once the purchase order is placed or getting requests for information for: 1. quotes no longer valid (last quote issued in 2016) 2. purchase order was placed and part has already shipped. Sorry if this was unclear.
  19. @Neil Roberts HI Neil. My company does not have an issue with provide CIJ when we have quote open (which asserts commerciality on the parts quoted) with the Prime and before an order is placed. We provide all of this information at no cost to the Prime. Our issue is when requests come in months/years (this is actually quite common) after the purchase order has been placed and parts shipped out. I have been with this company less than year, but from what I can gather, the history we have with Primes is as follows: 1. Prime requests CIJ. 2. We submit CIJ. 3. Prime nev
  20. Haha Thanks @Don Mansfield. I actually really like this idea. I will bring it up to my senior folks as a response to this Prime.
  21. Thank you for the response. This is similar to the approach my company uses. Prior to a purchase order, we are more than happy to work with the prime with any questions or concerns they have in determining our commerciality. Once the PO is placed though, we cease our cooperation. From my understanding, this is due to many primes requesting years after a PO is placed in many cases and we see no reason to support a CIJ after years of orders for the part. Their stance that we MUST provide the CIJ (1) after the purchase order has been placed and (2) if the USG has not declared th
  22. Hello again, We are currently subcontractors to a program and the prime has asked us for several commercial item determinations out of the blue. My company asserts commerciality of our parts on all quotes. They have always taken the stance that during valid period of the quote, and before a purchase order is placed, our company will provide any price analysis and assist in any commercial item justifications (CIJ). Should any price analysis or CIJ be provided, we do expect something in writing on the Prime's letterhead stating they accept our assertion of commerciality on the part n
  23. Hello, I assumed this at first as well. I assumed the prime had a form specific to them but they are not Boeing. Googling the form also brought up various other companies that use the exact language. I am not sure if their contracts people just copied and pasted each others forms though. I was just worried that I'm searching in the completely wrong place and may have just missed the form. Thanks for your response.
  24. Hello, One of our primes sent an annual certification and the form asks whether we have received one or more subcontracts containing FAR 52.222-50 in which Form X37101, Certification Regarding Combating Trafficking in Persons has been executed in the preceding 12 months and/or is currently performing such subcontract(s). I have searched for what Form X37101 is. I cannot seem to find any information using Google. The only other results are the actual FAR clause which makes no mention of this form and other companies which include this in their vendor certifications. Am
  25. @here_2_help Thank you. I just found it. https://www.federalregister.gov/documents/2018/01/31/2018-01781/defense-federal-acquisition-regulation-supplement-procurement-of-commercial-items-dfars-case I have linked it here just in case there are other beginners that may run into the same issue and need the DFARS case.
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