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  1. "DFARS 219.201(d)(10) Contracting activity small business specialists perform this function by? (A) Reviewing and making recommendations for all acquisitions (including orders placed against Federal Supply Schedule contracts) over $10,000, except those under the simplified acquisition threshold that are totally set aside for small business concerns in accordance with FAR 19.502-2. Follow the procedures at PGI 219.201(d)(10) regarding such reviews. ( B ) Making the review before issuance of the solicitation or contract modification and documenting it on DD Form 2579, Small Business Coordination Record; and ( C ) Referring recommendations that have been rejected by the contracting officer to the Small Business Administration (SBA) procurement center representative. If an SBA procurement center representative is not assigned, see FAR 19.402(a)." This passage does not identify the responsibility of a contracting officer, but rather details the responsibilities of the contracting activity small business specialist. The contracting activity small business specialist has a responsibility to review and make recommendations for all acquisitions specified. This would, by necessity, include certain contracts performed outside the United States or its outlying areas. See DFARS PGI 219.804-2(4), which reads, "(4) For competitive requirements for construction to be performed overseas, submit the notification to SBA Headquarters." How is DoD doing competitive 8(a) construction "to be performed overseas" if Part 19 doesn't apply there? How is the small business specialist going to make a recommendation on these contracts if he or she doesn't even know one is going on? Also, compare the language from FAR 19.000( b ) with the language from FAR 22.1003-2, which details the geographical coverage of the Service Contract Act of 1965. It reads, "The Act applies to service contracts performed in the United States (see 22.1001). The Act does not apply to contracts performed outside the United States." It is clear if "performed outside the United States" had been desired, 19.000( b ) could have been written that way. (Perhaps it still could, but FAR 19.000( b ) doesn't read that way right now.) See the following for a useful, if imprecise, article covering the "foreign exemption" issue: http://ncmahq.org/files/Articles/CM0609%20-%2030-37.pdf
  2. 1) Each CCR record reads at the top, "Not to be used as certifications and representations. See ORCA for official certification." 2) What about situations where the place of performance is not specified by the Government in the solicitation, but could include performance either entirely outside the US or its outlying areas or performance entirely inside the US or its outlying areas?
  3. What about performance that doesn't need to be performed in the United States, but could be? Many foreign offices read Part 19 as not impacting them because they are located outside the United States and its outlying areas. Many don't have small business personnel assigned. Many employ foreign nationals and permavilians who wouldn't know 19 if it hit them square upside the head. Some activities have offices both outside the United States and its outlying areas and inside and they permit each office to interpret the rule based on what is convenient to them. Not surprisingly, what is convenient to them is to trigger the foreign exemption whenever possible, even when contract performance is entirely in the US. To answer the OP's question: If your contracting office is located in the United States, and your activity is a Defense activity, I would anticipate that you have a SBS appointed and that this person is following the "all acquisitions" language at DFARS 219.201(d)(10)(A). The SBS probably wants to get a 2579 because: 1) She feels she is required to; 2) He wants to make sure you are not citing the foreign exemption when you shouldn't; 3) She wants to ensure you are not claiming a FAR 5.202(a)(12) exception improperly (block 13); 4) He wants to find any U.S. based performance or potential U.S. based performance in your needs statement for subcontracting reasons (block 12); 5) If you are inside the United States, nothing has happened yet to invoke the foreign exemption. The DFARS requires the SBS to coordinate with the buyer and document the coordination on the 2579 before the KO issues the solicitation. If you need supplies delivered OCONUS, how do you know a US concern can't meet those needs? If you need acquisition performance OCONUS, how do you know a US based concern can't meet those needs? The regulation permits overseas 8(a) construction: Do you think the SBS might have an interest in this instance? See 13 CFR 124.502. There are also some low-level things the coordination process catches that ensures proper codes are reported through the federal procurement data system, even if the acquisition isn't set-aside, like NAICS codes (block 8a) and FSCs (block 6a). Wouldn't you want the SBS to have awareness of what you are doing so that when you synopsize, the SBS is not caught unaware? In these circumstances, it would seem as though you would want the Small Business Specialist's involvement in the planning of these acquisitions. OP, what is your hesitance about just submitting the 2579?
  4. 1. Applicability of Part 19: AMBIGUITY 19.000( "This part, except for Subpart 19.6, applies only in the United States or its outlying areas. Subpart 19.6 applies worldwide." Read together with FAR 19.601(e), which states, "Contracting officers, including those LOCATED OVERSEAS, are required to comply with this Subpart for U.S. small business concerns," FAR 19.000( makes one inclined to at least consider the idea that the so-called foreign exemption is triggered based on where the contracting officer is "located." Part 19 applies only in the United States or its outlying areas. 19.6 applies worldwide, which includes applying 19.6 when contracting officers are located overseas. Is that clear? No, not at all, which is one reason advocacy groups and the SBA recommend either eliminating the foreign exemption or seeking a legislative change. The fact that no statute supports this exemption at FAR 19.000( is another reason. 2. Other triggers: Why are they even in there? When the contract performance location triggers applicability or action, it is written that way, most notably in FAR 19.308. 19.308(a)(1) Insert the provision at 52.219-1, Small Business Program Representations, in solicitations exceeding the micro-purchase threshold when the contract will be performed in the United States or its outlying areas. 19.308© When contracting by sealed bidding, insert the provision at 52.219-2, Equal Low Bids, in solicitations when the contract will be performed in the United States or its outlying areas. 19.308(d) Insert the clause at 52.219-28, Post-Award Small Business Program Rerepresentation, in solicitations and contracts exceeding the micro-purchase threshold when the contract will be performed in the United States or its outlying areas. If the entire part were inapplicable based on the location of the contract performance, these prescriptions would be unnecessary because the whole part wouldn't apply to contract performance outside the United States and its outlying areas, to include FAR 19.308. Why, too, wouldn't FAR 19.000( just be written as follows? "This part, except for Subpart 19.6, applies only when the contract will be performed in the United States or its outlying areas. Subpart 19.6 applies for contract performance worldwide." (See discussion infra relating to overseas competitive 8(a) contracts under FAR 19.8 and 13 CFR 124 for a reason why perhaps it is not written that way.) 3. "Performed ENTIRELY outside" 19.702( introduces another trigger, "entirely outside," which gets you out of subcontracting plans. The language, too, acquaints us through the word "entirely" that performance could be happening both inside and outside the United States and its outlying areas on the same contract. Item 12 of the DD FORM 2579 covers whether or not a subcontracting plan is required, which is a part of the SB review. If these Small Business folks can find even the slightest bit of U.S. contract performance, they will. "Subcontracting plans (see subparagraphs (a)(1) and (2) of this section) are not required -- For contracts or contract modifications that will be performed ENTIRELY outside of the United States and its outlying areas." Why would this language even exist if the entire Part 19 doesn't apply (except 19.6) based on the contract performance location outside the United States and its outlying areas? 19.702((3) wouldn't apply (based on this reading of the foreign exemption) in the very instance it was referencing. 4. THE REGULATIONS clearly support use of Part 19 for contract performance overseas. How can this be if the entire part doesn't apply based on contract performance location? 13 CFR 124.502((2) "For competitive and open construction requirements, to the SBA district office serving the geographical area in which the work is to be performed or, in the case of such contracts TO BE PERFORMED OVERSEAS, to the Office of 8(a) BD located in SBA Headquarters." DFARS PGI 219.804-2(4) "For competitive requirements for construction TO BE PERFORMED OVERSEAS, submit the notification to SBA Headquarters." How could a Contracting Officer honestly use Part 19 for competitive 8(a) requirements for construction TO BE PERFORMED OVERSEAS if the entire part doesn't apply based on the overseas contract performance location? Could you honestly argue that you can have a competitive overseas 8(a) construction contract under FAR 19.8, but then argue that you don't have to submit a DD Form 2579 because Part 19 doesn't apply? That doesn't seem right. FAR 19.800(e) indicates, "The contracting officer shall insert the clause at 52.219-14, Limitations on Subcontracting, in any solicitation and contract resulting from this subpart." You'll note the prescription doesn't say anything about the location of contract performance, as the few in FAR 19.308 do. The DOS supplemented at DOSAR 619.000( "It is the Department?s policy to provide maximum opportunities for U.S. small businesses to participate in the acquisition process. DOS contracts that are awarded domestically for performance overseas shall be subject to the Small Business Act as a matter of policy. Contracts that are both awarded and performed overseas should comply on a voluntary basis." 5. ANOTHER NOTION: The OP, at a CONUS-based contracting activity, writes, "We support many overseas missions, and often have to buy supplies and services in foreign countries." The OP's "buying" is happening CONUS. Clearly the OP doesn't "have to buy" in the foreign countries, which is why the contracting activity is CONUS. The service rendering or the supplies might be needed "in foreign countries," but that's something different than where the "buy" takes place and it is different than where the award is "made." The DD form 2579: Perhaps the Small Business Advisor wants the OP to ensure that she is synopsizing appropriately and not claiming a synopsis exception (See block 13 of the 2579) -- say, FAR 5.202(a)(12) as Jacques mentioned earlier in the thread -- when he or she knows she should not be based on where the award is being made. Block 13 is another important part of the coordination process. How would small businesses even know you were a conducting a procurement if you improperly claimed the FAR 5.202(a)(12) exception? Perhaps the small business advisor is simply trying to make sure small businesses can participate in the acquisition and know about it, even if it is F&O and not F&O after exclusion of sources. 6. At some point, we will end up discussing this in reverse, as some awards are made outside the United States and its outlying areas for performance inside the United States and its outlying area. 7. The "goaling exclusions," which is a different horse, are written so that the Government does not have to count contracts "performed outside of the United States" against its goals. Some people contend that this supports the "majority view" reflected well in this thread. 8. If all a Program Manager has to do to get rid of part 19 for his procurement is have the stuff he's buying delivered Outside the United States or its outlying areas, that's not a good rule. @Don, do you know what's even easier than knowing where supplies are delivered? Knowing where you (the KO) are. (See FAR 19.601(e)) 9. FAR 19.000( should be eliminated or rewritten.
  5. You persist in mocking either the term "dispossessed" or the actual dispossessed, though I don't know which or why. You're like the Johnny Friendly of the parity issue. What's in it for you? Why do you care so much?
  6. It is comical that DPAP has now changed the memorandum to reflect 19.303 and backdated the memorandum, but failed to recognize that FAR 19.303 is not a FAR subpart either and left that mistake in the memo. If you envision the people at the DPAP office working with the following music playing in the background, it really helps:
  7. http://www.acq.osd.mil/dpap/policy/policyv...935-10-DPAP.pdf From Shay Assad's memorandum: "FAR Subpart 9.303, Determining North American Industry Classification System (NAICS) Codes and Size Standards, instructs contracting officers that they must determine the appropriate NAICS code and related small business size standard and include them in solicitations above the micro-purchase threshold." First, FAR 9.303 is not a subpart. It is a section. Second, 9.3 covers First Article Testing and Approval, not NAICS code determinations. It's obvious that the drafter meant FAR 19.303, but these kinds of errors have no place in an instructional memorandum and betray a sloppiness present throughout Defense Acquisition. What can be done to ensure that the Defense Acquisition community recruits and retains the best, particularly in the DPAP office? If they need to recruit nationally for talent, and permit every single worker to telecommute, it would be better than what they are doing to develop and locate talent right now.
  8. Thumbing the President's nose at the courts has always gone so well in the past. Sometimes, I swear, I can't tell if that's Vern Edwards or Andrew Jackson posting. I keep looking through Article II, and I'm just not seeing the part you reference. I see: "He shall take Care that the Laws be faithfully executed." Then I look in article III, and I read, "The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. " I see the power of Congress to establish Article I tribunals. Alexander Hamilton wrote in the Federalist Papers: "The interpretation of the laws is the proper and peculiar province of the courts." There's this little 1803 case that's gotten some press called Marbury v. Madison, which states, "It is, emphatically, the province and duty of the judicial department, to say what the law is." Maybe Chief Justice Marshall and the Marshall court would have changed its mind if only it had received the May 2010 "Assad Memo." If you don't believe this Marbury v. Madison business, no less a source than the White House web page acknowledges, "Federal courts enjoy the sole power to interpret the law." http://www.whitehouse.gov/our-government/judicial-branch (That came straight from the throne, you royalists... ) The course of action being taken has the indicia of Executive Branch nonacquiescence, which I personally loathe. Writes Bradley Canon, "An agency may deliberately interpret the court's decision to find it inapplicable to itself by using convoluted reasoning, citing other authority or invoking unusual circumstances...More often a process of cognitive dissonance will set in and an agency will interpret the decision as inapplicable, or to apply only in minor or limited circumstances." That sounds familiar. Not surprisingly, the Executive Branch engages in stall tactics, subversion, obfuscation and silliness most often when a decision does not meet its current political aims, as is the case here. This bit about "I talked with the current chair of the subcommittee, and she knew a lady who used to be the ranking member of that same committee just a few years after the legislation was originally passed and she said that what the legislation REALLY meant to say was...' argument is classic obfuscation. I see smart people who put too much trust in people's straightforwardness nod along with this kind of "reasoning."
  9. The establishment of government-wide goals is an Executive Branch responsibility, but the law establishes a floor. (See 15 U.S.C. 644(g)(1)) )
  10. I favor the HUBZone program among the existing programs. You favor the SDVOSB. The point here is: You favor an order of priority, which is antithetical to notions of parity. The "dispossessed" is a fine term. I don't know why you persist in mocking it, but to each his or her own. Here is an example of how the term is used: http://www.newsweek.com/id/213699 If you were to design a program that would meet whatever socioeconomic objectives you hold dear, without confining it to exisiting programs, what would it do and how would it operate?
  11. I'm blushing even now, Iron Man. I prefer to confine the error to as small a group as possible. The GAO will frequently use the term "Agency," which I think is fine and confining. I'm not going to word search it, but I don't remember the COFC referring to the defendant's argument in the MCS case as the "Government's view," but I acknowledge I have not scanned the whole document like some sort of word search puzzle. Three questions: 1) Do you think the Executive Branch is appealing because the leadership really thinks that's what the law says? 2) How would you handicap the appeal? I will opine that the appeal will go nowhere, that everybody (including the people filing it) knows it, and that its intent is to serve twin purposes: a ) To give the legislature more time; and b ) As a lobbying effort back to the legislature. We'll see. 3) Is there anyone in the forum who genuinely believes that any respective program is exactly equally meritorious of preference in Government Contracting based on policy considerations? An agency should follow whatever priority the law establishes. I do not believe that all of the programs are equally meritorious from a policy/values standpoint. "Parity" is a cop-out, a failure to establish priorities about what is important, or, failing that, a suspicious value declaration. I imagine it going like this: "What programs are good?" "They're all good." "How good?" "Really good." Which one is best?" "All of them." "Equally best?" "Yes."
  12. I'm not going to get into a Junior High civics class here, but your comment is emblematic of the very royalism of which I wrote. See, it's not the "Government's view." It's the Executive Branch's view. There are two other branches...
  13. Not sure where you are going with all of the personal stuff. This is an interesting issue, and there is room for more than one view of it. I happen not to have any respect for your view, which conflicts with 2 GAO decisions and the Court of Federal Claims, but I will confine my remarks to the issue in controversy. 1) The composition of Congress changes. The priorities change as well. Often, current Members attempt to characterize what past the past Congress "really meant" in this law or that. The best way still to determine that isn't through later-day press releases by current Members, but by reading the law as it was written, passed and signed. 2) My position is consistent with 2 GAO decisions and a COFC decision. 3) There are reasons for this attempted CHANGE. Ignoring the shifting priorities and passing it off as a big misunderstanding between the old congress and the new conflicts with reality. There are policy reasons for the attempted change.
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