MileHighAcq

The prescription for clause 52.208-9 Contractor Use of Mandatory Sources of Supply or Services, at FAR 8.005, states the following: I don't know if it's just me, but I'm really thrown off by the "for Government use" part. What does that mean? Does it have to be for direct Government use - e.g., a contractor who has a contract to operate and maintain a Government facility at which Government people work, and they have to provide janitorial services, toilet paper, cleaning supplies, etc. In that case, the contractor is providing services directly for the Government's use and their contract should include this clause, and they should be using AbilityOne to provide the service. Or does it mean "for use on (or in support of) a Government contract" - i.e., for the ultimate (though indirect) benefit of the Government? The clause clearly applies when the contractor is providing supplies or services for the direct use of the Government, but does the use of the clause also extend to broader use - like providing services in support of a Government contract? I looked up the Proposed Rule and the Final Rule to see if it would shed any light on it, but the FR notices just use the same language ("for Government use"), so they weren't very helpful. I went back to the regulation the rule was implementing (41 CFR 51–5.2(e)), and the language there seems to encompass the broader usage. It states: The way I read that, it includes the procurement of any service (which includes services on the Procurement List) and it doesn't have to be (and it does not reference) "for Government use". It almost seems like that FAR Councils wanted to restrict the implementation to just those contracts where the contractor was providing supplies and services "for Government use" (i.e., direct use), otherwise the use of that language doesn't make sense to me. I mean ultimately, any contract issued by the Federal Government is for "Government use (or benefit)" in the broadest, most inclusive sense. Any thoughts?

I think the exception for synopsizing pursuant to FAR 5.201 is FAR 5.202(a)(11) "The proposed contract action is made under the terms of an existing contract that was previously synopsized in sufficient detail to comply with the requirements of 5.207 with respect to the current proposed contract action;" I think the reference above by @formerfed is the requirement to issue an RFQ (solicitation), not to synopsizing.

Am I missing something here? If the procurement was conducted pursuant to FAR Part 13.5, then it was conducted using FAR 13 procedures. Something to note however is that while FAR 13 allows you to borrow concepts from FAR 15, if you borrow too much from FAR 15, courts have held that you defacto conducted your procurement using FAR 15 procedures, whatever the solicitation actually said, and will apply all the applicable procedures to your procurement - e.g., evaluation, discussions, and debriefings.

which is why I would prefer that this be clarified in the regulation itself. yes, FAR 17.204(a) or (e) doesn't apply to contractors, but I'm looking at it from the perspective of a government acquisition professional and how they should be setting up their contract. and if the FAR imposes a 5-year limit on the duration of a contract, COs should be able to easily tell if certain types of extension are exempt from that - especially because both clauses use the term "option" - but apparently one IS subject to the 5-year limitation while the other IS NOT. the court addressed FAR 17.204(a) in their reasoning about the contract stating the overall duration of the contract, but I don't see where it addressed FAR 17.204(e) regarding the 5-year limitation. Instead, it makes a statement that "FAR 17.204(e) simply limits the duration of the initial period of performance and renewal options" but without providing the logic for why FAR 17.204(e) only applies to "renewal" options - a phrase the court appears to have made up. In practice, COs have always treated -8 and -9 options differently, but I don't see anything in FAR 17.2 that treats one differently than the other.

Thanks! This is spot on, though I'm not sure I understand the legal reasoning. The court ruling is clear "We hold that the limitation of the contract duration to five years by FAR 52.217-(c) does not preclude extensions beyond five years pursuant to FAR 52.217-8." This makes sense to me at a logical level, and is on the same track that I was thinking, which is that the option periods identified in clause 52.217-9 are different than what is contemplated in clause 52.217-8, but it makes me wonder why the FAR doesn't just say what the court says and eliminate the issue. I find this section a little confusing in the court's opinion: "Interpreting FAR 52.217-8 as not limited by the five-year period recited in FAR 52.217-9(c) does not conflict with FAR 17.204(a) and (e). The contract still specifies limits on the "duration of the contract, including any extension," as required by FAR 17.204(e); the maximum duration including extensions is the five years comprising the initial performance period and four renewal options, plus up to six months of extended services under FAR 52.217-8 and up to 90 days of phase-in, phase-out services under FAR 52.237-3. FAR 17.204(e) simply limits the duration of the initial period of performance and renewal options, just as FAR 52.217-9(c) does in the contract." The court seems to be focused on the contract specifying the limits on the duration of the contract, which it does when the -8 and -9 clauses are included, but the court doesn't seem to address the 5-year limitation part of the FAR citation 17.204(e) - "the total of the basic and option periods shall not exceed 5 years in the case of services, and the total of the basic and option quantities shall not exceed the requirement for 5 years in the case of supplies." How can a contract comply with the 5-year limitation when the court itself says essentially 5 years (base and renewal option periods) plus __ and plus ___?? How can the contract comply with the 5-year limitation when the base and option periods are already 5 years, and then you add two pluses in there? It makes sense from a practical standpoint that 52.217-8 and 52.237-3 are not included in the 5-year limitation, but I fails to see how the court gets there from a theoretical standpoint. If the FAR would just say what the court said - i.e., that the limitation of the contract duration to five years by FAR 52.217-(c) does not preclude extensions beyond five years pursuant to FAR 52.217-8", that would be great. And having the court opinion is good enough for practical purposes, I'm just trying to understand the logic of the court's interpretation. There isn't anything specific in the FAR (at least as far as I can see) that sets the 52.217-8 option apart from 52.217-9 options that would suggest that they should be treated differently.

a contingency. we don't know if we will need it, if we will use it, for how long we will use it, or at what price. we have certain parameters for time, price, and length, but nothing specific. it just doesn't make sense to me that the founding fathers of the FAR expected all recurring, severable service contracts to be for a period of 4 years and 6 months and then added a contingency clause in case of poor planning or other unforeseen contingencies.

In other words, do you have to consider the potential 6-month extension pursuant to 52.217-8 part of your contract length to which the 5-year limitation at FAR 17.204(e) applies, and therefore set your contract length to no more than 4 years and 6 months if you include clause 52.217-8? Would you need a FAR deviation to do a traditional base plus 4 contract (one year base plus 4 oner-year option terms) if you include clause 52.217-8? I haven't had the time to search existing threads in great detail, so I apologize in advance if this subject has already been covered (seems hard to believe that it hasn't). The language of FAR 17.204(e) refers specifically to "option periods" ("the total of the basic and option periods shall not exceed 5 years"). I wouldn't consider an extension pursuant to 52.217-8 to be an "option period", so I would say you can have a base plus 4 contract, and exercise an extension pursuant to 52.217-8 and not violate FAR 17.204(e). Thoughts? I read through Vern's excellent piece on The Five-Year Limit on Government Contracts: Reality or Myth?, but did not see 52.217-8 extensions specifically addressed, nor has a cursory search revealed much case law on the matter.

Thanks for that. I've only heard, never read. I have some Cibinic and Nash books (source selection and cost reimbursement contracting), but not the two you mentioned. I'll have to see if my HCA will splurge for it, though probably not at this point since we're mostly remote, so it wouldn't be "shared" by the entire office.

okay, I'll bite. so what happens when a contracting officer signs a contract but did not fully comply with a law regarding procedure or contract content? do you not have a legally binding contract? I suppose you can say "no, and you need to remedy it by complying with the requirements with regard to procedures and contract content after the fact". but suppose you cannot remedy every aspect of it (e.g., you award to a large business when the requirement was automatically set aside for SBs and there are SBs who can perform the work, so you can't dissolve the set-aside after the fact). do you then not have a legally binding contract? do you terminate the contract / cancel the PO and start over? what if no one discovers that the contract is isn't legally binding and the contractor completes the work and you close out the contract? does the contract just go down in the history of the agency as an illegal contract? I don't know the answers, I just know that from a practical standpoint, people are going to miss things that can't be remedied afterwards. I don't favor such an absolutist approach.

That's a tremendous compliment! I know, I slightly ignored the second paragraph of your post (You cannot ratify a commitment that, had it been made by a contracting officer with requisite authority to make that kind of commitment, would have been illegal because the contracting officer did not comply with a law regarding procedure or contract content.) because it was contrary to my desired interpretation.

in that case (if it's just an authority issue) all you need to do is have someone with authority ratify the "agreement" created by the unauthorized commitment and, bam, you have a resultant contract that's otherwise appropriate! forget any compliance issues relating to procedure and contract content.

if I may, the terms are not synonymous because of a technicality - which is that a contract is signed by a person with authority to do so, but an unauthorized commitment is not. that's why an "unauthorized commitment" is defined as an "agreement" rather than a contract, and the distinction draws is "solely because the Government representative who made it lacked the authority to enter into that agreement on behalf of the Government." however, the similarity is that the focus in both cases is on the end result - the "resulting contract" and the "agreement", not on the process.

yeah, this one is on me. as I explained in one of my posts, I was just reviewing a ratification file and the writeup under FAR 1.602-3(c)(3) struck me as being particularly non-sensical, and it got me thinking and wondering what that statement really meant. I've reviewed dozens of ratifications before, and it never occurred to me before to question that because the rationale provided made sense on some level. I'm just here to learn, in my never-ending quixotic quest to make some kind of sense of government regulations related to acquisitions.

yup, here we are! it's a good place to be - exploring as many aspects of an issue as possible so that when I make a decision or recommend a course of action, I can support it either way.

good catch. yes, it's now OMB for most cases for civilian agencies.

so does this lead you to conclude that most actions where a government representative bound the government (i.e. directed a contractor to perform work or deliver a product and the contractor did so) would not even qualify as an "unauthorized commitment" (per the definition) because there were more issues with the action than simply the person binding the government not having the authority to do so, and therefore aren't subject to ratification pursuant to FAR 1.602-3? I guess in that case such issues would have to be resolved by GAO under quantum meruit. on the other hand, is it possible that FAR 1.602-3 and the definition of "unauthorized commitment" don't speak to process because the process is immaterial for the purposes of ratifying an action? that the only thing that matters in cases where a person without authority bound the government is whether the agreement would be binding (regardless of the process) if a person with authority had done it? I know FAR 1.602-1(b) seems to argue against that, but it doesn't say that if "all requirements of law, executive orders, regulations, and all other applicable procedures, including clearances and approvals, have NOT been met, then you don't have a valid contract", rather, it seems to read more like a warning to COs to ensure that they meet "all requirements of law, executive orders, regulations, and all other applicable procedures, including clearances and approvals" before entering into a contract, not necessarily that unless they had done so, a valid contract does not exist. I don't know, maybe I'm talking myself in circles, but given how FAR 1.602-3(c)(3) only talks about the "resultant contract", being proper had a CO signed it, and not the process, and similarly how the definition of "unauthorized commitment" speaks only to the agreement itself, not the process, maybe it is not about the process, but simply the agreement/contract itself.

right. but we're talking here about ratifications, where the person lacked the authority enter into a contract, not a contracting officer, and really, in most cases there's no contract in place at all until the action is ratified. it gets really tricky with FAR 1.602-1 because we issue contracts all the time where the CO missed a required clause or two, or missed a step or two in the process (e.g., did not synopsize properly, did not document market research, did not get proper approvals on a J&D or missed a required D&F, etc.). Are we going to say that all those are unauthorized commitments requiring ratification? I think not. but that's beyond the purview of this thread.

so are you saying is that in choosing to ratify an action, the HCA is in essence waiving process requirements and deviating from contract requirements (Ts&Cs), which they have the authority to do? in that case a ratification is the ratifying official saying even though the "resulting contract" is not "otherwise proper" because it was not done by a CO and the appropriate processes weren't followed, by ratifying the action, I'm essentially waiving the process requirements and deviating from any contract requirements - which is within my authority. is that basically it?

wouldn't it be easier to just modify the contract to add the missing clause? assuming I guess that it's just an oversight and there isn't some valid reason for not having the clause in the contract.

I think the question is in the title of the thread - what does "resulting contract would otherwise have been proper" mean? it seems there are two schools of thought on the matter - 1. that it's really the "resulting contract" being proper that matters, and 2. it's both the "resulting contract" and the process by which the contract was put in place that must be "otherwise proper" for the action to be ratifiable. In other words, can a "resulting contract" be considered "otherwise proper" if all the regulatory requirements were not followed?

that's a pretty strict standard! if something is open to the discretion of contracting officials, then it wouldn't be a "minor deviation" from regulatory requirements. it seems to me that the GAO is opening a the door a bit that an action that didn't strictly follow regulatory requirements may still be ratifiable as long as the deviations from regulations can be considered minor. no? agree. what I should have said (and meant in my mind) was that it broadens the focus to include the process as well, not just the resulting contract. my bad.

which then takes the focus off the "resulting contract" and on to the process itself. did the process itself follow appropriate laws and regulations. and then we need to distinguish between which ones are deal breakers and which ones can be remedied or ignored, because as GAO said, we're not looking for "otherwise perfect".

Reminds me of the earlier discussion about "substantive" vs "procedural" laws. I agree with you - there is a difference in not adhering to some fundamental laws vs not adhering to more procedural regulations like conducting and documenting market research and acquisition planning, solicitation and evaluation, etc.

well that's confusing as hell because what contract COULD not have been made properly if the proper procedures were followed? seems to me like that would apply to just about any unauthorized commitment other than just plain illegal ones (i.e., those involving fraud or some other illegal purpose). am I missing something here? The discussion in McGraw-Hill Info. Sys. Co, B-210808 does remind me of the earlier discussion about substantive laws vs procedural ones though.

yeah, by process I mean things like obtaining a funded PR, conducting and documenting market research and acquisition planning, completing the small business screening form (i.e. set-aside considerations), publicizing to the GPE, soliciting, evaluating, determining price reasonableness, determining contractor responsibility, and awarding. completing a J&A after the fact is one thing (and that's assuming that the sole source can actually be justified), but can you complete all these steps in the process after the fact to make an unauthorized commitment into a proper award? I have a hard time seeing that.