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Postby Morio » Fri Nov 25, 2016 12:29 pm

Is it accurate to say the FAR implements BAA requirements for all government agencies other than for the DoD for which the DFSRS apply?

We are a manufacturer of electric motors and I receive requests from customers for BAA compliance.  Some reference 41 U.S.C. Sec. 10, some refer to 49 CFR Part 661, and others reference specific FAR or DFAR clauses.  I do not see any reference in the CFR for a waiver for $3000 micro-threshold purchases nor a waiver for the component test for COTS items. I want to specifically reference and limit my compliance to FAR 25.101 --  even if the customer references the CFR.  Would that be a correct response ? Our products are Commercial Items as defined by the FAR.



Semi accurate, DoS has DOSARS as DoD has DFARS, etc, etc.

they start with Chapter 41 U.S.C. 10a et seq. but always wind up at the FAR's

I have always been instructed by program managers, CO's to refer to FAR 25, foreign acquisition found here;http://www.acquisition.gov/far/current/html/FARTOCP25.html

and that is where I have found that(most)all CO's and legal department government personnel have based their interpretations of the BAA upon. The FAR issues circulars and updates more frequently than the acts of congress/presidential orders that are required to impact the CFR's.

There seems to be a bit of mis-information circulating in the past year or so, many trying to influence "stimulus spending', set-asides, etc. with references to the BAA and "proposed" amendments, but the reference I always look to is the FAR.

So, if it was "I", the FAR's with the above referenced site is where I hang my hat at the end of the day, and my response would 100% be limited to FAR 25 and circulars/amendments pertaining to such.

Hope this helps,

Gerry Caskey

---------- FOLLOW-UP ----------

Thanks Gerry.  One more question.  One of my customers is a bus manufacturer who has asked us to comply with 49 CFR 661.11 for "rolling stock".  That article requires a 60% component test vs. the 50% content requirement in FAR 25.101(a). Is the FAR still applicable in this case ?

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Postby Gildi » Sun Nov 27, 2016 7:09 am

Hi Pat,

I don't envy your position, you are coming across more than your share of "cans o worms"!

There have been many court cases/protests over the decades attempting to gain clear distinction on precedence betwixt the CFR & FAR, from my understanding it generally comes down to the exact language and references to either the CFR or FAR used on the government side in the contract. I don't know if you are privy to the bus manufacturer's contract clause section, but you may ask for a redacted copy of that section to see exactly the boxes checked/unchecked and attempt your determination from there. There have been cases where exemptions have been granted if you can show significant cost savings to the gov't, but if items are available from domestic or qualifying manufacturers you may be forced to go that route, in which case I would ask to re-bid project if the dollar amount cannot be absorbed, just a suggestion without my knowing the entire scenario.

You may also want to consider, and depending on the specific agency, some Buy America regulations provide for public interest waivers if the agency administrator finds that the application of the Buy America requirements would be inconsistent with the public interest.

A maddening example is a construction contract I worked on 25 years ago;     Where the construction material has only one part it becomes synonymous with component. A Japanese beam is made of one component, hence the beam is 100% Japanese. Since the beam must be 50+% 'domestic'(or excluded) components, it is rejected.

We lost, even though the beams represented less than one eighth of materials used, Japan was the only source on planet, it was deemed an individual unit/component.

Good luck, anything else I can assist with, let me know.

Gerry Caskey  
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