Does TAA apply to replacement parts supplied under maintenance contract?

Deleted - Please see my post dated August 29

The clause at FAR 52.225-5 applies to contracts for supplies, or contracts for services that involve the furnishing of supplies.  See FAR 25.1101.  But your client's task order seems to be for the furnishing of services without any delivery of end products.  So, maybe the clause isn't operative in your client's task order (even though the clause is included in the task order's parent schedule contract).

For services, the TAA's implementation in the FAR simply requires the contracting officer to determine the origin of the services by the country in which the firm providing the services is established.  See FAR 25.402(a)(2).  You should be able to assume that the schedule contracting officer did this when awarding the parent schedule contract.

This is just a thought from a federal contracting practitioner.  For a reliable legal answer on TAA application, you may want to consult an attorney.

ji20874 said:

The clause at FAR 52.225-5 applies to contracts for services that involve the furnishing of supplies . . . your client's task order seems to be for the furnishing of services without any delivery of end products.

@ji20874 I think the question is: what qualifies as an "end product" in this situation. If the Contractor must repair a pipe, and repair requires a pipe fitter to install replacement parts on the existing equipment, are those replacement parts end products? Does it make a difference whether the replacement part is specifically listed and priced on the work order? This seems like it could be an end product within the scope of TAA -- but that casts a really broad definition of end product.

Nena,

If it is a contract for services, then the clause at FAR 52.225-5 is inapt.  See FAR 25.1101.

If it is a contract to repair a Government-provided pipe, that is a contract for services -- and the clause at FAR 52.225-5 does not apply.  TAA application for services contracts is at FAR 25.402(a)(2) -- the FAR does not prescribe a clause for TAA coverage for services contracts that do not involve the furnishing of supplies.

FAR Part 25 differentiates between end products and components.  See the definitions in FAR 25.003.  We must not conflate them as being the same.  In your example, the replacement parts seem to be components, not end items.  The TAA clause at FAR 52.225-5 covers end products, not components, and we're talking about TAA, so we're not talking about components.  Note, however, that this is different from the BAA, which covers both end products and components.

We also have to understand what "furnishing of supplies" means -- in your example, installing replacement parts on the pipe is not furnishing supplies to the Government -- the contract is 100% for services, and 0% for supplies.  The replacement parts are used in the repair process by the repair contractor as part of the repair service, and are not separately furnished to the Government as supplies.

ji20874 said:

We also have to understand what "furnishing of supplies" means -- in your example, installing replacement parts on the pipe is not furnishing supplies to the Government -- the contract is 100% for services, and 0% for supplies.  The replacement parts are used in the repair process by the repair contractor as part of the repair service, and are not separately furnished to the Government as supplies.

@ji20874 thanks for the input. I like your conclusion, and want to make sure I'm following the logic. 

[Let's set aside any discussion of BAA/TAA distinction for the time being]

Because this is a contract for inspection/maintenance/minor repair, it is 100% for services. If inspection indicates minor repair/maintenance is required, then the contractor will purchase the necessary materials, install them on government fixtures and charge the government for the parts. Because the materials are used in repair work, they are not supplies that are furnished to the government. 

On the other hand, the following is an example of a contract for supplies and services: government purchases replacement parts as individual CLINS and repair services under separate CLINS on the same contract. In that case, the replacement parts would be subject to BAA/TAA requirements.

Nina,

Except that let's change one sentence:  "If inspection indicates minor repair/maintenance is required, then the contractor will purchase the necessary materials, and install them on government fixtures and charge the government for the parts."

A services contract for repair might or might not provide for separate payment for repair parts.

ji20874 said:

A services contract for repair might or might not provide for separate payment for repair parts.

Great. Thanks, @ji20874. To confirm - for the purpose of this analysis, it does not matter whether the contractor charges the government separately for the repair parts.

ji20874 said:

We also have to understand what "furnishing of supplies" means -- in your example, installing replacement parts on the pipe is not furnishing supplies to the Government -- the contract is 100% for services, and 0% for supplies.  The replacement parts are used in the repair process by the repair contractor as part of the repair service, and are not separately furnished to the Government as supplies.

ji,

I would agree with your interpretation, but are you sure it's correct? I couldn't find anything official saying that TAA does not apply to incidental supplies under a service contract. If the CO for Nena's contract interpreted "furnishing of supplies" to include replacement parts used in the repair process, how could she prove them wrong?

Don Mansfield said:

I couldn't find anything official saying that TAA does not apply to incidental supplies under a service contract.

Thanks, @Don Mansfield. We looked hard to find this answer before putting it out to the group. As compliance counsel to the contractor, I  get nervous when I cannot find authority to justify my conclusion that a reg doesn't apply. In this case, we don't want to ask the CO because the contractor has been operating as if TAA doesn't apply here.  But they just asked the question: "are we right?"

Nena,

For this discussion, what matters is whether the contract is for supplies, services, or services involving the furnishing of supplies.

• A contract for 100 pipes is a contract for supplies.  The clause at FAR 52.225-5 applies (depending on the dollar threshold in FAR 25.1101(c)(1)).  The pipes are end products.
• A contract to repair Government-provided pipes is a contract for services.  The clause at FAR 52.225-5 does not apply.  The replacement parts used in the repairs are not end items.
• A contract to repair Government-provided pipes and also to provide a supply of spare parts delivered to a Government warehouse is a contract for services involving the furnishing of supplies.  The clause at FAR 52.225-5 applies (depending on the dollar threshold in FAR 25.1101(c)(1)).  The replacement parts used in the repairs are not end items, but the spare parts delivered to the warehouse are end items.

Don,

The clause at FAR 52.225-5 (TAA) clearly refers to end products, in contrast to the clauses at FAR 52.225-1 (BAA) and -3 (BAA/FTA) (these three clauses are a matched set).  See the definitions of end product and component in the clauses and also at FAR 25.003 -- but see also the definitions in FAR 2.101 for contrast.  Reading the term "end product" in 52.225-5 as reaching both end products and components would be an unreasonable reading of the clause -- there must be a space for end products separate from components.  Other than pointing to reasonableness, I cannot prove anything.  If a competitor alleges a TAA violation (almost all TAA and BAA violations are raised by competitors; the system is purposefully designed that way), the contractor would probably make a reasonable interpretation argument in its defense.  

I see the contract described here as one for services, period, so the clause at FAR 52.225-5 does not apply.  The replacement parts used in the repairs do not constitute the furnishing of supplies.  However, I am operating only on what I see here; I have not read the contract.  If the CO in Nena's contract asserts that the contract is one for services involving the furnishing of supplies (and that the clause at FAR 52.225-5  therefore applies), I would want to reply that the replacement parts used in the repair are not end products (thus negating any effect of the clause).  Pretty soon, the disputes process may be implicated to provide a resolution.

Nena,

Don't take my word for it -- I'm just providing insight based on experience as a contracting practitioner.  I haven't seen everything yet (but I have seen a lot of TAA and BAA matters).

ji20874 said:

If the CO in Nena's contract asserts that the contract is one for services involving the furnishing of supplies (and that the clause at FAR 52.225-5  therefore applies), I would want to reply that the replacement parts used in the repair are not end products (thus negating any effect of the clause).  Pretty soon, the disputes process may be implicated to provide a resolution.

What if the "repair" is not minor? See FAR 22.1003-6. Would TAA apply? I'm asking, not arguing.

A suggested read for all....................

https://www.crowell.com/files/Where-Are-Your-Products-From-The-Importance-and-Challenges-of-Managing-TAA-Compliance-for-GSA-Schedule-Holders.pdf

If the contract is for delivery of remanufactured items, then one might say it is a contract for supplies which could be subject to the TAA and the clause at FAR 52.225-5 (based on the clause prescription at FAR 25.1101(c)(1)).  If so, the remanufactured pipe, to continue with the example, would be an end item of supply and would have to be manufactured in the U.S. or a designated country.  But remember that the clause only covers end products -- it does not address components -- so the replacement parts used in the remanufacturing still would not be covered by the clause.

Note 1:  The BAA does cover components (in most cases), but we're not talking BAA.

Note 2:  The Customs and Border Protection bureau in DHS makes TAA country of origin determinations.  Here's a relevant quote from the article Carl shared:   "Customs has repeatedly emphasized that it must consider the totality of the circumstances and make such determinations on a case-by-case basis, making it difficult for GSA Schedule holders to apply the test to their own or third-party products, particularly where there is no sufficiently-analogous published determination."

ji20874 said:

If the contract is for delivery of remanufactured items, then one might say it is a contract for supplies which could be subject to the TAA and the clause at FAR 52.225-5 (based on the clause prescription at FAR 25.1101(c)(1)).  If so, the remanufactured pipe, to continue with the example, would be an end item of supply and would have to be manufactured in the U.S. or a designated country.  But remember that the clause only covers end products -- it does not address components -- so the replacement parts used in the remanufacturing still would not be covered by the clause.

I cannot find the term "end item of supply" anywhere in FAR Part 25. It appears only once in the FAR, in FAR Part 37. So what is the correct term for what you are talking about? When you say "end item of supply" do you mean "end product," as defined in FAR 25.003?

Quote

"End product” means those articles, materials, and supplies to be acquired for public use.

If "end product" is what you mean by "end item of supply," and if the statement of work/specification in the schedule of a remanufacturing contract specifies the particular replacement parts that are to be used, then wouldn't those replacement parts be end products for purposes of FAR 52.225-5? Neither the definition of end product nor the clause states that articles, materials, and supplies must be separately deliverable and separately priced in order to be end products. Does FAR say that somewhere else? Do you know of any case law?

I don't know much about this topic, so, again, I'm asking, not arguing.

The law and regulations aren’t always logical. However, it would seem logical to me that the purpose of the contract is to inspect and service or repair equipmenI. If the equipment was originally “domestic”, then it ought to remain domestic after repairs or refurbishment. .  If that equipment was originally purchased under the BAA and TAA, then supplying and installing replacement parts for that equipment ought to be consistent with the original equipment purchase. I’m assuming that the contract value is high enough for applicability of TAA. 

If the government is paying for the parts on a cost reimbursable basis, what is the issue? Price differences shouldn’t be a concern.

If the parts being replaced were originally “domestic”, then they ought to remain domestic after repairs or refurbishment.

Vern,

Please read end item of supply as simple words strung together, rather than as a term.  If it will work better for you, you may change those words to end product, which is a term in the context of the FAR.  Nothing changes in this case.

I want to avoid conflating “end product” and “component” as identical.  I have a different opinion.  In my practice, I treat these as different, because FAR Part 25 treats them differently (see the definitions in FAR 25.003) and the clauses at FAR 52.225-1, -3, and -5 treat them differently.

Vern Edwards said:

Neither the definition of end product nor the clause states that articles, materials, and supplies must be separately deliverable and separately priced in order to be end products.

I haven’t made that assertion.  

If you want case law, ask Nena.  I’m just sharing information as a contracting practitioner, not as an attorney.  As a matter of practice, I am not persuaded that every replacement part in every repair service, or every piece part in a supply end (or end product), must be of domestic or designated country origin.  

Sometimes in these matters, the same item will be seen as an end item by one person and a component by another person — this happens such as when buying an airplane, as an example — one might say the engines are components while another might say the engines are end items.  It depends on the terms of the contract.  But I don’t think we’re talking at this level.  This discussion would require (1) an understanding that end products and components are different, and (2) an understanding of the exact text and context of a contract.

ji20874 said:

I haven’t made that assertion.

Don't get defensive. I didn't say that you did. I made the point in order to explain my questions.

The distinction between the definition of "end product" in FAR 2.101 and the definition applicable to FAR Part 25 strikes me as significant.

ji20874 said:

If you want case law, ask Nena.  I’m just sharing information as a contracting practitioner, not as an attorney.  As a matter of practice, I am not persuaded that every replacement part in every repair service, or every piece part in a supply end (or end product), must be of domestic or designated country origin.

I would have asked Nena if I had wanted an answer from her. I asked you, because you've been posting as a practitioner, because you have had a lot to say on this topic, and because you came across like you know what's what. I'm trying to understand how to interpret the term end product in different contexts and how we can recognize one based on the definition and the language of a contract. I especially want to understand how particular contract language can affect analysis and a determination of end product or component. But I'll stop asking you questions now, because I sense that they're making you edgy, or on the verge of doing so, and that there's no point in pressing you. I'll answer my own questions, as should everyone else.

On 8/27/2018 at 11:20 AM, PennGC57 said:

I am helping a contractor determine whether and how TAA applies to their contract. Here are the pertinent details:

• Contractor provides inspection and repair of equipment on multiple DoD contracts under a GSA Schedule.

• 52.225-5 Trade Agreements is incorporated into the schedule.

• Contractor did not supply the equipment being inspected.

• The Contract Line Items are broad in nature, requesting inspection of equipment.

• The Government entity issues a separate work order for needed repairs as a result of the inspection. (“work order” is a generous term here, as most requests come via email)

• Replacement parts may be small in nature (i.e., batteries) or multiple in nature (several components).

• Are replacement parts supplied to repair equipment required to comply with the TAA?

Let me know what other information you need to advise. Thank you!

If the parts are priced under a work order, what difference does it make to the contractor and what does the government say it wants? 

Or should I mind my own business and simply assume that this is a contract interpretation question?

Vern,

Yes, the differences in definitions in FAR 25.003 and 2.101 are significant -- that's why I recommended, early in this thread, that people wanting to understand this matter should read them.  Also important to understanding is reading FAR Part 25 as a whole and comparing and contrasting the three matched set clauses at FAR 52.225-1, -3, and -5 -- this has been very helpful to me in understanding this matter.

All I can do, and all I want to do, is share a practitioner's perspective for the benefit of the original poster and other readers.  You ask too much of me when you ask me to prove or to provide case law, especially for an assertion I have not made, and more especially after I earlier admitted I cannot prove anything and invited others to make their own decisions.  I acknowledged that is "difficult for GSA Schedule holders to apply the test to their own or third-party products" -- if it is difficult for them, knowing the exact text and context of their contracts and knowing the provenance of their materials, surely it is nigh impossible for us to be definitive in this forum.

I hope all readers will agree with a general principle that there is no requirement for every replacement part in every repair service contract, or every piece part of an end product in every supply contract, to be of domestic or designated country origin in a contract that includes the clause at FAR 52.225-5.  I think this answers the original poster's question as best as it can be answered, based on the information provided.

I don’t think that you can find a domestic  source for every replacement part

I have not handled a contract as a CO to which TAA is applicable for sometime but with regard to the OP’s scenario and some of the thoughts expressed throughout this thread I want to offer a more concise view than my original post.  Just views with hopes it helps the OP

• TAA is a standalone act that allows use of other than American made products.  As such TAA is enforced using its language solely.

• FAR part 25 as well as 52.225-5 defines “End product” as meaning those articles, materials, and supplies to be acquired for public use.

• FAR subpart 25.4 nor FAR 52.225-5 and 225-6 do not use the word “component”.   Noted here TAA as a whole by my read uses “product” but not component in its language.

• The OP states –

  • Contractor provides inspection and repair of equipment on multiple DoD contracts under a GSA Schedule.

    • Response - GSA FSS Contracts are subject to TAA and not BAA.  Example see FSS 03FAC BAA clauses are absent TAA clauses are present.

     

  • 52.225-5 Trade Agreements is incorporated into the schedule.

    • Response  - OP’s has not provided its specific schedule but as ALL GSA Schedule contracts include TAA this statement makes sense.

  • Contractor did not supply the equipment being inspected.

    • Response - As provided this fact is not relevant, what is relevant is what is the contractor providing in the repair of equipment.

  • The Contract Line Items are broad in nature, requesting inspection of equipment.

    • Response -This statement is a little confusing as the OP is stating that the contractor also provides repair, see next bullet.

  • The Government entity issues a separate work order for needed repairs as a result of the inspection. (“work order” is a generous term here, as most requests come via email)

    • Response – Here the question is whether the work order is issued under the authority of the GSA Schedule contract.   If it is then TAA applies.   If it not then it is “open market” and the specifics of the terms and conditions in the work order would need to be known.

  • Replacement parts may be small in nature (i.e., batteries) or multiple in nature (several components).

    • Response – Use of the word “component” by the OP confuses the matter.  The contractor is supplying parts to repair the equipment simple as that and as such the parts could likely fit being one of 3 things covered by TAA – an article, a material and  a supply.

  • Are replacement parts supplied to repair equipment required to comply with the TAA?

    • Response – If the work orders for the repair is issued under the authority of the GSA Schedule then the work order is subject to TAA.  As such all the parts could likely need to be evaluated with regard to TAA.  If the work orders for the repairs is an “open market” order then the order would stipulate whether TAA is applicable or not.  With regard to “likely” application of TAA it is the contractors responsibility to make the determination.  For making this determination specific to the parts being provided the contractor should seek appropriate legal counsel or assistance from U.S. Customs and Border Protection (see “Trade” on this website - https://www.cbp.gov/about )

PS – I have edited my initial post  in this thread to refer to this post

ji20874 said:

You ask too much of me when you ask me to prove or to provide case law, especially for an assertion I have not made, and more especially after I earlier admitted I cannot prove anything and invited others to make their own decisions.

I didn't ask you to prove anything. I didn't ask you to provide case law. And I didn't say you asserted anything. Here's what I said and asked:

Vern Edwards said:

If "end product" is what you mean by "end item of supply," and if the statement of work/specification in the schedule of a remanufacturing contract specifies the particular replacement parts that are to be used, then wouldn't those replacement parts be end products for purposes of FAR 52.225-5? Neither the definition of end product nor the clause states that articles, materials, and supplies must be separately deliverable and separately priced in order to be end products. Does FAR say that somewhere else? Do you know of any case law?

Emphasis added. Three questions. A simple yes or no to each of those would have sufficed. If you had said yes to any of them, then I would have asked for more information. You are too much on the defense.

As for this:

ji20874 said:

I hope all readers will agree with a general principle that there is no requirement for every replacement part in every repair service contract, or every piece part of an end product in every supply contract, to be of domestic or designated country origin in a contract that includes the clause at FAR 52.225-5.  I think this answers the original poster's question as best as it can be answered, based on the information provided.

That's like saying the sky is not always blue, which is true enough, but not helpful if what I want to know is the color of today's sky.

Here is the original question:

On 8/27/2018 at 9:20 AM, PennGC57 said:

• Are replacement parts supplied to repair equipment required to comply with the TAA?

And here is an appropriate answer to that question:

Based on FAR 52.225-5, the answer depends on how the contract is written. If the replacement parts are "end products," i.e., "articles, materials, and supplies to be acquired under the contract for public use," and if they are "items in the [contract] schedule," then the answer is yes. Otherwise, the answer is no.

Carl, Etal,  i apologize for incorrectly using the term “domestic” to refer to either US made or eligible products from a participating country under Trade Agreements Act. I should have refreshed my memory.  I wasn’t trying to limit allowable products to US made where TAA is applicable.

On 8/27/2018 at 9:20 AM, PennGC57 said:

Let me know what other information you need to advise. Thank you!

1. Do the replacement parts meet the definition of "end products" at FAR 25.003?

2. Are the replacement parts identified in the contract schedule?

1. Given the rather broad and vague definition of "end product," it would be hard to think of anything that is purchased for a contract that is not an end product.

2. In the Uniform Contract Format, the contract schedule includes the specification. So any mention in a specification of requirements for a replacement part would make that part an item in the contract schedule. Unless of course, we interpret "item" to mean contract line item. But then the definition of "end product" in FAR 2.101 seems to indicate that end products, as used in FAR Part 25, include more than just those items identified in contract line items.

Vern Edwards said:

Given the rather broad and vague definition of "end product," it would be hard to think of anything that is purchased for a contract that is not an end product.

I agree and therefore my use of "likely" in my most recent post but only U.S. Customs will know for sure.

With regard to Don's most recent post the other issue looming that helps answer any question as to applicability of TAA is whether the "work order" is issued under the authority of the GSA Schedule contract.

Thanks for all the thoughtful responses. I frequently provide legal counsel re TAA & BAA compliance, but clarity on this one is elusive, so I appreciate your insights. 

The OP is on my team. Allow me to add some details -

1. Client is on GSA Schedule 03FAC (facilities maintenance services). The contract CLINS are all for services. 
2. DOD BPA says: "Contractor is to provide all work, materials, and labor required to provide inspection, testing and maintenance . . in accordance with the statement of work, amendments and proposal". The statement of work contemplates "minor repair work", but does not include any mention of materials. 
3. Work Order. After inspections indicate a need for minor repair work, contractor submits quote to DOD for the repair work. This is usually done via email (both quote submission and approval by DOD). Quote includes labor and materials priced separately. Materials are sometimes referred to generally as "materials" and sometimes by specific description. These work orders are issued under the GSA Schedule and DoD BPA T&Cs, but they do not reference those agreements in any way.

  

Don Mansfield said:

1. Do the replacement parts meet the definition of "end products" at FAR 25.003?

In the definition of end product, I am wrestling with the meaning of "for public use".  Here, the materials are installed in government buildings. They become part of the fixtures.  Is that sufficient to be "for public use"?

Don Mansfield said:

2. Are the replacement parts identified in the contract schedule?

I guess the answer to this depends on what we are calling the "contract schedule". The replacement parts are not identified in  DOD BPA schedule specifically, although the schedule says the contractor must provide the materials needed for repair. The replacement parts are clearly and separately priced as materials v. labor on the repair work orders.

What do you think?

Vern Edwards said:

Unless of course, we interpret "item" to mean contract line item.

That may be reasonable. Take a look at FAR 52.225-6, Trade Agreements Certificate, the companion provision to FAR 52.225-5. If an offeror is going to propose an end product that is not a U.S.-made or designated country end product, they must list it by line item number in paragraph (b). Further, paragraph (c) says "For line items covered by the WTO GPA, the Government will evaluate offers of U.S.-made or designated country end products without regard to the restrictions of the Buy American statute."

Reading the provision and clause together, I think that "items in the Schedule" as used in FAR 52.225-5(b) can reasonably be interpreted to mean line items.

Don Mansfield said:

Reading the provision and clause together, I think that "items in the Schedule" as used in FAR 52.225-5(b) can reasonably be interpreted to mean line items.

That is how I have always interpreted it, and I believe (but do not have on hand) some good case law and other guidance documents on point re: CLINs as end products. (Happy to find them if someone really wants to see them). 

The key here is whether the materials listed in the repair task orders amount to CLINs for end product purposes.

Vern,

Okay, my bad.  When you asked me "Does FAR say that somewhere else? Do you know of any case law?" regarding an assertion I had not made, I thought you were asking for me to prove something and to provide some case law.  Silly me.

NenaLenz said:

Client is on GSA Schedule 03FAC (facilities maintenance services). The contract CLINS are all for services.

 My read of the current GSA solicitation for the parent contract on the street provides for  "Ancillary Supplies and/or Services" as line items (CLINS if you will)in several places.  Reference -https://www.fbo.gov/index?tab=documents&tabmode=form&subtab=core&tabid=d0e20d7c37cbe001ef6e9cd7b58e5aef

I take yours and Don's discussion to mean that the GSA Order that the contractor holds only has CLINS for services on it therefore TAA does not apply.    Yet the GSA Schedule Contract is subject to TAA therefore anything ordered  ( material) under the contract must be compliant with TAA whether you have it on a dang BPA, the call under the BPA or even an Order under the contract or not.

I completely understand how foolish my view may sound but think of it this way if all of a sudden you had to replace all the material everywhere, not just a piece here or there and you wanted to get it all from China what would your view then be, skate it under the radar too?

NenaLenz said:

some good case law and other guidance documents

Yep hard to find but have you looked at the CROSS search engine found here https://rulings.cbp.gov/home   Interesting reading when you search on something like 19 U.S.C. §§ 2511 that might just suggest the materials you are providing could be an issue in all sorts of ways.

ji20874 said:

Vern,

Okay, my bad.  When you asked me "Does FAR say that somewhere else? Do you know of any case law?" regarding an assertion I had not made, I thought you were asking for me to prove something and to provide some case law.  Silly me.

What I asked you is what I asked you and nothing more. It's clear that your answers should have been a simple No and No. As for "silly," that's your call. "Silly" is not the adjective I would have chosen.

NenaLenz said:

In the definition of end product, I am wrestling with the meaning of "for public use".  Here, the materials are installed in government buildings. They become part of the fixtures.  Is that sufficient to be "for public use"?

Yes. If the buildings are owned or leased by the government, and if the public is paying for the materials, in what sense would the use be private?

NenaLenz said:

I guess the answer to this depends on what we are calling the "contract schedule".

I think GSA schedule contracts are written in the Uniform Contract Format. If so, the contract "schedule" is sections A through J.

Vern Edwards said:

I think GSA schedule contracts are written in the Uniform Contract Format. If so, the contract "schedule" is sections A through J.

Actually if you were to look at a solicitation I do not believe they follow UCF.  It is a moot point however as everything one can find provides that TAA applies to order level materials.   Here is one more reference that you all might want to read.  PS - It is dated in 2018.

https://www.gsa.gov/cdnstatic/OLM Q%26A - 672018.pdf

Also this from the current GSA solicitation for Schedule 03FAC does not look like UCF to me -

TABLE OF CONTENTS

Please click on an item in Table of Contents below to go to the respective location within this document.

Part I - GOODS & SERVICES........................................................................................ 1

SIN Group -- Energy Management, Water Conservation and Support Services........................................ 7

SIN Group -- Facilities Maintenance and Managment Solutions for Real Property................................14

Part II - CONTRACT TERMS AND CONDITIONS....................................................27

52.204-18 -- COMMERCIAL AND GOVERNMENT ENTITY CODE MAINTENANCE (JUL 2016)......27

52.204-21 -- BASIC SAFEGUARDING OF COVERED CONTRACTOR INFORMATION SYSTEMS

(JUN 2016)................................................................................................................................................ 27

52.209-1 -- QUALIFICATION REQUIREMENTS (FEB 1995)................................................................29

52.212-5 -- CONTRACT TERMS AND CONDITIONS REQUIRED TO IMPLEMENT STATUTES OR

EXECUTIVE ORDERS - COMMERCIAL ITEMS (NOV 2017) (ALTERNATE II - NOV 2017).............. 30

52.216-18 -- ORDERING (OCT 1995) (DEVIATION II - FEB 2007)......................................................35

52.223-11 -- OZONE-DEPLETING SUBSTANCES AND HIGH GLOBAL WARMING POTENTIAL

HYDROFLUOROCARBONS (JUN 2016)................................................................................................ 35

52.223-20 -- AEROSOLS (JUN 2016).......................................................................................................37

52.223-3 -- HAZARDOUS MATERIAL IDENTIFICATION AND MATERIAL SAFETY DATA (JAN

1997)..........................................................................................................................................................37

52.223-3 -- HAZARDOUS MATERIAL IDENTIFICATION AND MATERIAL SAFETY DATA (JAN 1997)

(ALTERNATE I - JUL 1995)..................................................................................................................... 38

52.225-19 -- CONTRACTOR PERSONNEL IN A DESIGNATED OPERATIONAL AREA OR

SUPPORTING A DIPLOMATIC OR CONSULAR MISSION OUTSIDE THE UNITED STATES (MAR

2008)..........................................................................................................................................................40

52.232-40 -- PROVIDING ACCELERATED PAYMENTS TO SMALL BUSINESS SUBCONTRACTORS

(DEC 2013)............................................................................................................................................... 45

52.252-2 -- CLAUSES INCORPORATED BY REFERENCE (FEB 1998)............................................... 46

552.211-78 -- COMMERCIAL DELIVERY SCHEDULE (MULTIPLE AWARD SCHEDULE) (FEB

1996)..........................................................................................................................................................49

552.211-8 -- TIME OF DELIVERY (SEP 1999)....................................................................................... 50

552.212-4 -- CONTRACT TERMS AND CONDITIONS - COMMERCIAL ITEMS (JAN 2017)

(DEVIATION - FEB 2007) (DEVIATION - FEB 2018)............................................................................ 51

552.212-4 -- CONTRACT TERMS AND CONDITIONS - COMMERCIAL ITEMS (JAN 2017)

(DEVIATION - FEB 2018) (ALTERNATE I - JAN 2017) (DEVIATION - FEB 2007)............................. 58

552.212-71 -- CONTRACT TERMS AND CONDITIONS APPLICABLE TO GSA ACQUISITION OF

COMMERCIAL ITEMS (JUN 2016).........................................................................................................71

552.212-72 -- CONTRACT TERMS AND CONDITIONS REQUIRED TO IMPLEMENT STATUTES OR

EXECUTIVE ORDERS APPLICABLE TO GSA ACQUISITION OF COMMERCIAL ITEMS (JUN

2015)..........................................................................................................................................................72

552.215-73 -- NOTICE (JUL 2016).......................................................................................................... 72

552.216-70 -- ECONOMIC PRICE ADJUSTMENT - FSS MULTIPLE AWARD SCHEDULE

CONTRACTS (SEP 1999) (ALTERNATE I - SEP 1999).......................................................................... 73

552.216-70 -- ECONOMIC PRICE ADJUSTMENT - FSS MULTIPLE AWARD SCHEDULE

CONTRACTS (SEP 1999) (ALTERNATE I - SEP 1999) (DEVIATION II - JUL 2016)........................... 74

552.216-72 -- PLACEMENT OF ORDERS (JAN 2016) (ALTERNATE I -- AUG 2010)..........................75

552.216-74 -- TASK-ORDER AND DELIVERY-ORDER OMBUDSMAN (JAN 2017)............................76

552.228-5 -- GOVERNMENT AS ADDITIONAL INSURED (JAN 2016).................................................76

552.238-71 -- SUBMISSION AND DISTRIBUTION OF AUTHORIZED FSS SCHEDULE PRICELISTS

(SEP 1999) (DEVIATION -- JUN 2016)................................................................................................... 76

552.238-78 -- SCOPE OF CONTRACT (ELIGIBLE ORDERING ACTIVITIES) (JUL 2016)................. 77

552.238-82 -- SPECIAL ORDERING PROCEDURES FOR THE ACQUISITION OF ORDER-LEVEL

MATERIALS (JAN 2018)...........................................................................................................................79

C-FSS-370 -- CONTRACTOR TASKS / SPECIAL REQUIREMENTS (NOV 2003).................................80

C-FSS-411 -- FIRE OR CASUALTY HAZARDS, OR SAFETY OR HEALTH REQUIREMENTS (OCT

6FEC-E6-030292-B Refresh: 34

1992)..........................................................................................................................................................81

C-FSS-425 -- WORKMANSHIP (OCT 1988)............................................................................................82

C-FSS-427 -- ANSI STANDARDS (JUL 1991)..........................................................................................82

C-FSS-439 -- ENVIRONMENTAL PROTECTION AGENCY REGISTRATION REQUIREMENT (APR

1996)..........................................................................................................................................................83

CI-FSS-056 -- FEDERAL ACQUISITION REGULATION (FAR) PART 51 DEVIATION AUTHORITY

(FEDERAL SUPPLY SCHEDULES) (JAN 2010).....................................................................................83

CI-FSS-151-N -- ADDITIONAL EVALUATION FACTORS FOR AWARD TO NEW OFFERORS (OCT

2015)..........................................................................................................................................................84

CI-FSS-151-N -- ADDITIONAL EVALUATION FACTORS FOR AWARD TO NEW OFFERORS (OCT

2015) (ALTERNATE I - JUL 2016)...........................................................................................................85

CI-FSS-151-S -- ADDITIONAL EVALUATION FACTORS FOR AWARD TO SUCCESSFUL FSS

PROGRAM CONTRACTORS (OCT 2015)............................................................................................... 87

CI-FSS-151-S -- ADDITIONAL EVALUATION FACTORS FOR AWARD TO SUCCESSFUL FSS

PROGRAM CONTRACTORS (OCT 2015) (ALTERNATE I - JUL 2016)................................................ 88

F-FSS-202-F -- DELIVERY PRICES (APR 1984).................................................................................... 90

G-FSS-900-C -- CONTACT FOR CONTRACT ADMINISTRATION (JUL 2003)....................................90

G-FSS-906 -- VENDOR MANAGED INVENTORY (VMI) PROGRAM (MAS) (JAN 1999).................... 91

G-FSS-907 -- ORDER ACKNOWLEDGEMENT (APR 1984).................................................................. 92

G-FSS-910 -- DELIVERIES BEYOND THE CONTRACTUAL PERIOD-PLACING OF ORDERS (OCT

1988)..........................................................................................................................................................92

I-FSS-103 -- SCOPE OF CONTRACT WORLDWIDE (JUL 2002)..........................................................92

I-FSS-106 -- GUARANTEED MINIMUM (JUL 2003)............................................................................. 93

I-FSS-108 -- CLAUSES FOR OVERSEAS COVERAGE (MAY 2000)...................................................... 93

I-FSS-109 -- ENGLISH LANGUAGE AND U.S. DOLLAR REQUIREMENTS (MAR 1998)................... 93

I-FSS-140-B -- URGENT REQUIREMENTS (JAN 1994)........................................................................ 94

I-FSS-163 -- OPTION TO EXTEND THE TERM OF THE CONTRACT (EVERGREEN) (APR 2000)...94

I-FSS-40 -- CONTRACTOR TEAM ARRANGEMENTS (JUL 2003)........................................................94

I-FSS-50 -- PERFORMANCE REPORTING REQUIREMENTS (FEB 1995)..........................................95

I-FSS-597 -- GSA ADVANTAGE! (OCT 2014).........................................................................................95

I-FSS-597 -- GSA ADVANTAGE! (OCT 2014) (DEVIATION I -- AUG 2011)........................................ 95

I-FSS-599 -- ELECTRONIC COMMERCE - FACNET (FEB 2018)........................................................ 95

I-FSS-60 -- PERFORMANCE INCENTIVES (APR 2000)........................................................................ 97

I-FSS-600 -- CONTRACT PRICE LISTS (OCT 2016).............................................................................. 97

I-FSS-624 -- OFFICE COPIER UTILIZATION GUIDELINES (MAY 2000).........................................101

I-FSS-626 -- SERVICE POINTS (AUG 1986).........................................................................................101

I-FSS-639 -- CONTRACT SALES CRITERIA (MAR 2002).................................................................... 101

I-FSS-644 -- DEALERS AND SUPPLIERS (OCT 1988)........................................................................ 102

I-FSS-646 -- BLANKET PURCHASE AGREEMENTS (MAY 2000).......................................................102

I-FSS-680 -- DISSEMINATION OF INFORMATION BY CONTRACTOR (APR 1984)........................ 102

I-FSS-965 -- INTERPRETATION OF CONTRACT REQUIREMENTS (APR 1984)..............................102

I-FSS-969 -- ECONOMIC PRICE ADJUSTMENT â## FSS MULTIPLE AWARD SCHEDULE (OCT

2014) (ALTERNATE II - JUL 2016)........................................................................................................103

I-FSS-969 -- ECONOMIC PRICE ADJUSTMENT-FSS MULTIPLE AWARD SCHEDULE (OCT

2014)........................................................................................................................................................104

Part III - VENDOR INSTRUCTIONS.........................................................................107

52.204-16 -- COMMERCIAL AND GOVERNMENT ENTITY CODE REPORTING (JUL 2016)......... 107

52.204-17 -- OWNERSHIP OR CONTROL OF OFFEROR (JUL 2016)............................................... 108

52.209-5 -- CERTIFICATION REGARDING RESPONSIBILITY MATTERS (OCT 2015)....................108

52.209-7 -- INFORMATION REGARDING RESPONSIBILITY MATTERS (JUL 2013)....................... 110

52.215-20 -- REQUIREMENTS FOR CERTIFIED COST OR PRICING DATA AND DATA OTHER

THAN CERTIFIED COST OR PRICING DATA (OCT 2010) (ALTERNATE IV - OCT 2010).............. 111

52.215-6 -- PLACE OF PERFORMANCE (OCT 1997)......................................................................... 112

52.216-1 -- TYPE OF CONTRACT (APR 1984)..................................................................................... 112

52.222-52 -- EXEMPTION FROM APPLICATION OF THE SERVICE CONTRACT LABOR

STANDARDS TO CONTRACTS FOR CERTAIN SERVICES--CERTIFICATION (MAY 2014)............ 112

52.225-18 -- PLACE OF MANUFACTURE (MAR 2015).......................................................................113

52.225-6 -- TRADE AGREEMENTS CERTIFICATE (MAY 2014).........................................................114

52.233-2 -- SERVICE OF PROTEST (SEP 2006)...................................................................................115

C Culham said:

Actually if you were to look at a solicitation I do not believe they follow UCF.

I think you're right. GSA schedule contracts are for commercial items and the UCF does not apply. My bad.

Vern Edwards said:

I think you're right.

Thanks Vern.  Its been a long time since I dug into this issue but in re-reading my post I noted this GSA FAR Supplement clause

C Culham said:

552.238-82 -- SPECIAL ORDERING PROCEDURES FOR THE ACQUISITION OF ORDER-LEVEL

MATERIALS (JAN 2018)

It has a paragraph listing what clauses are not applicable to order level materials.  TAA is not listed.  Further clarification that  Yes -TAA does apply to replacement parts supplied under maintenance contract.

C Culham said:

It has a paragraph listing what clauses are not applicable to order level materials.  TAA is not listed.  Further clarification that  Yes -TAA does apply to replacement parts supplied under maintenance contract.

This is incredibly helpful! That you all for weighing in.

... Now to help my client design a new compliance protocol and amend some subcontracts ....

I searched the decisions of the boards of contract appeals and did not find a single case in which the interpretation of "end product", as defined in FAR 52.225-5, Trade Agreements Act, was in dispute.

I scanned about 60 GAO decisions in which the Trade Agreements Act certificate was an issue and did not find any in which the definition of "end product" was the focus. I may have missed something.

I don't know what any of that means, and I don't know if any of it is significant.

I haven't had to deal much with FAR Part 25, but on short acquaintance I find it to be nearly indecipherable. There appear to be very few true experts. I don't know whether to be fascinated or repelled.

@Vern Edwards - I rely on the Customs and Border Protection decisions and cases in the Court of International Trade for TAA country of origin guidance. Customs and CIT have the authority to make country of origin determinations for TAA purposes. To find lines of cases that speak to what is an end product, search for "substantial transformation" analyses.

When examining whether a product complies with TAA, CBP first decides which product is subject to the requirement -- and that requires determining which product is the end product. The country of origin is where that end product was last "substantially transformed". 

The specific facts matter in each case, so the decisions are hard to analogize to other situations, but here is a quick rundown of factors that inform whether something will be considered an "end product" and thus subject to the TAA country of origin requirements. There's a lot of discussion about systems as end products when products are purchased together:

• Whether the parts are directly incorporated into the system. The more the part is directly integrated into the “system,” the more likely it is found to be a component, rather than an end product.  
• The purpose of the government solicitation. If the purpose of the solicitation is to obtain a single system, the government will consider whether the purpose of the solicitation is met only by a combination of parts, or if the parts, in isolation, meet that same purpose in some meaningful way. If the parts do not achieve the government’s purpose in a meaningful way, they are more likely to be viewed as components.
• The language of the solicitation. Even if the language does not expressly explain which contract items are end products, the solicitation language may be useful in determining the purpose of the procurement.
• The usefulness of the system parts in isolation. If a contract item has no use except as an integrated feature of the system, the item is more likely to be viewed as a component.
• Whether the parts are available for individual purchase as replacement parts. If a contractor offers contract items for sale as replacement or ancillary items, the items are more likely to be considered end products than components.

C Culham said:

C Culham said:

552.238-82 -- SPECIAL ORDERING PROCEDURES FOR THE ACQUISITION OF ORDER-LEVEL

MATERIALS (JAN 2018)

It has a paragraph listing what clauses are not applicable to order level materials.  TAA is not listed.  Further clarification that  Yes -TAA does apply to replacement parts supplied under maintenance contract.

To put an even finer point on this conclusion, see the GSAM 538.7203(b) . . . .  

538.7203 Administering Order-Level Materials in FSS contracts.

(b) Except as stated in 552.238-82 (d)(10)(11), all terms and conditions that otherwise apply to the FSS contract also apply to order-level materials. For example, order-level materials must comply with the Trade Agreements Act clauses, the Environmental Attributes clause, and the Industrial Funding Fee and Sales Reporting clauses.

NenaLenz said:

That is how I have always interpreted it, and I believe (but do not have on hand) some good case law and other guidance documents on point re: CLINs as end products. (Happy to find them if someone really wants to see them).

I really want to see them😀

C Culham said:

It has a paragraph listing what clauses are not applicable to order level materials.  TAA is not listed.  Further clarification that  Yes -TAA does apply to replacement parts supplied under maintenance contract.

Carl,

My read of GSAR 552.238-82 and GSAR Subpart 538.72 is that "order level materials" refers to materials under a T&M order. What if a repair service is fixed-price and the contractor will be required to replace worn out parts? Assume the only line item in the order is for repair services (i.e., no line item for materials). Do you think TAA would apply to the replacement parts?

NenaLenz said:

@Vern Edwards - I rely on the Customs and Border Protection decisions and cases in the Court of International Trade for TAA country of origin guidance. Customs and CIT have the authority to make country of origin determinations for TAA purposes. To find lines of cases that speak to what is an end product, search for "substantial transformation" analyses.

When examining whether a product complies with TAA, CBP first decides which product is subject to the requirement -- and that requires determining which product is the end product. The country of origin is where that end product was last "substantially transformed". 

The specific facts matter in each case, so the decisions are hard to analogize to other situations, but here is a quick rundown of factors that inform whether something will be considered an "end product" and thus subject to the TAA country of origin requirements. There's a lot of discussion about systems as end products when products are purchased together:

• Whether the parts are directly incorporated into the system. The more the part is directly integrated into the “system,” the more likely it is found to be a component, rather than an end product.  
• The purpose of the government solicitation. If the purpose of the solicitation is to obtain a single system, the government will consider whether the purpose of the solicitation is met only by a combination of parts, or if the parts, in isolation, meet that same purpose in some meaningful way. If the parts do not achieve the government’s purpose in a meaningful way, they are more likely to be viewed as components.
• The language of the solicitation. Even if the language does not expressly explain which contract items are end products, the solicitation language may be useful in determining the purpose of the procurement.
• The usefulness of the system parts in isolation. If a contract item has no use except as an integrated feature of the system, the item is more likely to be viewed as a component.
• Whether the parts are available for individual purchase as replacement parts. If a contractor offers contract items for sale as replacement or ancillary items, the items are more likely to be considered end products than components.

Thanks, Ms Lenz.

NenaLenz said:

I rely on the Customs and Border Protection decisions and cases in the Court of International Trade for TAA country of origin guidance. Customs and CIT have the authority to make country of origin determinations for TAA purposes. To find lines of cases that speak to what is an end product, search for "substantial transformation" analyses.

When examining whether a product complies with TAA, CBP first decides which product is subject to the requirement -- and that requires determining which product is the end product. The country of origin is where that end product was last "substantially transformed". 

The specific facts matter in each case, so the decisions are hard to analogize to other situations, but here is a quick rundown of factors that inform whether something will be considered an "end product" and thus subject to the TAA country of origin requirements. There's a lot of discussion about systems as end products when products are purchased together:

• Whether the parts are directly incorporated into the system. The more the part is directly integrated into the “system,” the more likely it is found to be a component, rather than an end product.  
• The purpose of the government solicitation. If the purpose of the solicitation is to obtain a single system, the government will consider whether the purpose of the solicitation is met only by a combination of parts, or if the parts, in isolation, meet that same purpose in some meaningful way. If the parts do not achieve the government’s purpose in a meaningful way, they are more likely to be viewed as components.
• The language of the solicitation. Even if the language does not expressly explain which contract items are end products, the solicitation language may be useful in determining the purpose of the procurement.
• The usefulness of the system parts in isolation. If a contract item has no use except as an integrated feature of the system, the item is more likely to be viewed as a component.
• Whether the parts are available for individual purchase as replacement parts. If a contractor offers contract items for sale as replacement or ancillary items, the items are more likely to be considered end products than components.

Nina,

Right -- that is what has been said from the beginning of this thread, that this discussion would require (1) an understanding that end products and components are different, and (2) an understanding of the exact text and context of a contract.

ji20874 said:

Right -- that is what has been said from the beginning of this thread, that this discussion would require (1) an understanding that end products and components are different, and (2) an understanding of the exact text and context of a contract.

Explained succinctly yesterday as follows:

Question: "Are replacement parts supplied to repair equipment required to comply with the TAA?"

Answer: "Based on FAR 52.225-5, the answer depends on how the contract is written. If the replacement parts are "end products," i.e., "articles, materials, and supplies to be acquired under the contract for public use," and if they are "items in the [contract] schedule," then the answer is yes. Otherwise, the answer is no."

Vern,

I’m glad I was able to be helpful to you in this matter.  Best wishes...

ji20874 said:

Vern,

I’m glad I was able to be helpful to you in this matter.  Best wishes...

Your posts were a great help, just as soon as I translated them into English and then read a bunch of stuff.

Thanks! ❤️

Don Mansfield said:

Carl,

My read of GSAR 552.238-82 and GSAR Subpart 538.72 is that "order level materials" refers to materials under a T&M order. What if a repair service is fixed-price and the contractor will be required to replace worn out parts? Assume the only line item in the order is for repair services (i.e., no line item for materials). Do you think TAA would apply to the replacement parts?

Don - Yes.  As provided in other posts through references noted ALL GSA schedule contracts are subject to TAA.

Again I note here TAA provides by my read no reference to "end product" just product.  I have concluded that FAR drafters in creating the term "end product" have convoluted TAA applicability.

Don Mansfield said:

Carl,

My read of GSAR 552.238-82 and GSAR Subpart 538.72 is that "order level materials" refers to materials under a T&M order. What if a repair service is fixed-price and the contractor will be required to replace worn out parts? Assume the only line item in the order is for repair services (i.e., no line item for materials). Do you think TAA would apply to the replacement parts?

Don , where did you determine that order level materials are only priced under time and materials orders?  Are you saying that they can’t be included at a fixed price or in a fixed price order?

C Culham said:

I have concluded that FAR drafters in creating the term "end product" have convoluted TAA applicability.

Of all the rules in FAR, the ones for the socio-economic programs seem to me to be the most convoluted. Think Parts 19, 22, 23, and 25. They started out simple but became increasingly complex as Congress enacted statutory changes, additions, variations, and exceptions, and the FAR councils have been forced to follow suit.

FAR Part 25 was completely rewritten in 1999, see 64 Fed. Reg. 72416, Dec. 27, 1999. FAR Subpart 25.4 and 52.225-5, combined, have been revised 99 times since then.

In a December 2000 briefing paper published in the aftermath of the rewrite, Domestic & Foreign Product Preferences, 00-13 Briefing Papers 1, the attorney-authors open with this:

Quote

Federal procurement law boasts a thicket of statutes and implementing regulations designed to afford particular advantage to supply and service providers that meet certain criteria. In particular, the statutes and regulations that create preferences in Government procurement for the acquisition of U.S. domestic goods and services (or for goods and services of certain U.S. trading partners) have never been more important than today when a single manufacturer typically relies on parts and labor from around the world to produce something as advanced as a single laptop computer or as mundane as a shovel. Unfortunately, the domestic and foreign product preference statutes and regulations are confusing, complex, and often so ambiguous as to render uniform application nearly impossible.

The interaction of two of the most important of these statutes, the Buy American Act (BAA) and the Trade Agreements Act (TAA), often has proven particularly troublesome. Recent amendments to the regulations implementing these statutes, which went into effect in February 2000, have simplified some areas of the law but have rendered other areas nearly incomprehensible.

Footnotes omitted. See also Howell, The Trade Agreements Act of 1979 Versus The Buy American Act: The Irresistible Force Meets The Immovable Object, Public Contract Law Journal, Spring 2006:

The OP said: 'I am helping a contractor determine whether and how TAA applies to their contract." ji20874 gave some very good advice in his very first post in this thread: "For a reliable legal answer on TAA application, you may want to consult an attorney." I find that ironic in light of the OP's team membership. I don't know how I'd feel if I were paying for professional advice and found the people I hired at a website seeking opinions from anonymous persons.

Wifcon is fun for discussion, debate, and bickering among us, and useful for guidance to sources of information (if people had sources and were willing to identify them), but I worry about questions from the OP in threads like this one, especially when I think what's potentially at stake and how often each of us has been wrong about something or other over the course of the years. Of course, our input is free, and you get what you pay for. Well, sometimes.

On 8/29/2018 at 1:21 PM, Don Mansfield said:

Reading the provision and clause together, I think that "items in the Schedule" as used in FAR 52.225-5(b) can reasonably be interpreted to mean line items.

I'm not sure what you meant by that. Were you saying that in order to be an end product an item has to be a line item? In any case, in the 1999 Part 25 rewrite the FAR councils changed to definition of "end product" in FAR 2.101 to read as follows:

Quote

End product means supplies delivered under a line item of a Government contract.

See 64 Fed. Reg. 72416, Dec. 27, 1999.

Two years later the FAR councils reverted to the old definition, which does not include any reference to "line item".

Quote

End product means those articles, materials, and supplies to be acquired for public use.

See 66 Fed. Reg. 65349, Dec. 18, 2001. The definition in 2.101 was changed to read:

Quote

End product means supplies delivered under a line item of a Government contract, except for use in part 25 and the associated clauses at 52.225-1, 52.225-3, and 52.225-5, see the definitions in 25.003, 52.225-1(a), 52.225-3(a), and 52.225-5(a).

The FAR councils said that they reverting to the old definition based on comments they received after publication of the rewrite final rule. That reversion strikes me as indicating that the FAR councils decided they did not want to limit end products to line items. An end product can be a line item, but it doesn't have to be.

joel hoffman said:

Don , where did you determine that order level materials are only priced under time and materials orders?  Are you saying that they can’t be included at a fixed price or in a fixed price order?

joel, I think I misread the clause. It provides coverage for T&M orders, it doesn't limit application to T&M orders.

Vern Edwards said:

The FAR councils said that they reverting to the old definition based on comments they received after publication of the rewrite final rule. That reversion strikes me as indicating that the FAR councils decided they did not want to limit end products to line items. An end product can be a line item, but it doesn't have to be.

Sounds like the work of the FAR Subcommittee for Vagueness and Obscurity.

On 8/31/2018 at 9:04 AM, Vern Edwards said:

I find that ironic in light of the OP's team membership. I don't know how I'd feel if I were paying for professional advice and found the people I hired at a website seeking opinions from anonymous persons.

Wifcon is fun for discussion, debate, and bickering among us, and useful for guidance to sources of information (if people had sources and were willing to identify them), but I worry about questions from the OP in threads like this one, especially when I think what's potentially at stake and how often each of us has been wrong about something or other over the course of the years. Of course, our input is free, and you get what you pay for. Well, sometimes.

@Vern Edwards I think you're selling everyone short in this comment. The frequent Wifcon posters, particularly those engaged in this thread (@Don Mansfield, @C Culham, @joel hoffman, and @ji20874) are a wonderful resource for practitioners of all stripes, including lawyers. The collective breadth and depth of regulatory knowledge within this community is exceptional. After all,  you find "discussion, debate and bickering" over federal contracting regulations to be fun.

As to whether it is appropriate for lawyers to consult this community when providing counsel to clients -- Even seasoned lawyers conduct legal research to answer client questions -- especially practitioners in complex and dynamic areas of law, such as government contracts. Two important steps in legal research are to figure out: (1) which rules apply in a given situation and (2) what do regulators think those rules require. This community is a good source for that. Although I don't always agree with the conclusions here, I find this community to be an incredibly useful place to help with legal research. And you're right that advice given here is really just a starting point. But it is a good starting point.

@NenaLenz

NenaLenz said:

I think you're selling everyone short in this comment.

I know them better than you do. 😊

Anyway, I'm certain that they'll appreciate your praise.

NenaLenz said:

As to whether it is appropriate for lawyers to consult this community when providing counsel to clients -- Even seasoned lawyers conduct legal research to answer client questions -- especially practitioners in complex and dynamic areas of law, such as government contracts. Two important steps in legal research are to figure out: (1) which rules apply in a given situation and (2) what do regulators think those rules require. This community is a good source for that. Although I don't always agree with the conclusions here, I find this community to be an incredibly useful place to help with legal research. And you're right that advice given here is really just a starting point. But it is a good starting point.

I don't buy the above if the time spent here is considered billable. I don't consider Wifcon to be a valid source for legal research. It's a source for chat. I enjoy chat, and chat might be informative, but I wouldn't charge a client for reading it or participating in it. Otherwise, if you're learning things here and enjoying yourself, have at it.

On 8/27/2018 at 9:20 AM, PennGC57 said:

Are replacement parts supplied to repair equipment required to comply with the TAA?

@NenaLenz I'll add that the OP's question, above, is a matter of contract interpretation. If I were the contractor I would have put that question to the contracting officer, and I would have asked for the answer in writing. It doesn't matter one whit what your legal research turns up. What people here think matters even less. What matters is what that CO is going to decide. There are procedures for resolving any dispute between your client and the CO over the CO's answer.

The best legal research might be to write a letter for your client on your letterhead asking the CO for his or her interpretation.

But, then, I'm old school. Just ignore me.

Vern Edwards said:

I wouldn't charge a client for reading it or participating in it.

NenaLenz said:

Although I don't always agree with the conclusions here, I find this community to be an incredibly useful place to help with legal research.

For Vern, @NenaLenz, and any others:

Would you charge a client for reading a law firm's blog?

Would you charge a client for reading any website other than Westlaw or LexisNexis or an official website for government records?

Would you charge a client for speaking to a trusted and knowledgeable colleague on the phone about a research topic?

PepeTheFrog thinks its reasonable to charge a client for speaking to @Vern Edwards or anyone at his level about a research topic.

I submit itemized time records along with my invoices, showing how I spent my time (and their money). I charge my clients for research time. It's clearly identified on my time records.

I do as much research as the issue warrants. I use as many sources as the issue warrants.

In a decade of consulting, no client has ever questioned being billed for research time.

PepeTheFrog said:

For Vern, @NenaLenz, and any others:

Would you charge a client for reading a law firm's blog?

Would you charge a client for reading any website other than Westlaw or LexisNexis or an official website for government records?

Would you charge a client for speaking to a trusted and knowledgeable colleague on the phone about a research topic?

PepeTheFrog thinks its reasonable to charge a client for speaking to @Vern Edwards or anyone at his level about a research topic.

I won't answer those questions categorically. My answers would depend on whether the research helped the client or just helped me.

If a client hired me to help with a source selection, I would not bill the client for reading to "get up to speed" on the topic of source selection. I would bill the client for research that dealt directly with the client's particular issues. Thus, if asked to help a client decide whether to seek clarification of something in a proposal, I would not bill the client for reading up on the distinction between clarification and discussion, but I would bill the client for gathering the facts, looking at protest decisions bearing on the client's situation, and developing advice about whether clarification would resolve the issue and how to seek it without crossing the line into discussions.

I would certainly not bill the client for time spent on Wifcon asking whether putting a particular set of questions to the offeror would be clarification or discussion.

But that's just me.