Don Mansfield

Carl, FAR 12.301(e) states: FAR 12.302( c ) states: So, if the Government were specifying "brand name or equal" for an item in the solicitation, use of the provision at FAR 52.211-6 would still have to be consistent with customary commercial practice.

That's correct, it would not be required. The CO would still have the discretion to use it consistent with customary commercial practice.

Also, the small business representation of the 8(a) can be protested (see FAR 19.302(a)(2)).

I understand you. Peace.

Vern, You are saying that the FAR does not prohibit the delegation of the authorities at FAR 1.602-2( d )(5). I am saying that if someone did have these authorities, by delegation or otherwise, they would not be a COR as described by the FAR (see syllogism above). FYI, the language at FAR 1.602-2( d )(5) was taken from the former DFARS 201.602-2(2)(iv), which said that a COR "Has no authority to make any commitments or changes that affect price, quality, quantity, delivery, or other terms and conditions of the contract." Prior to December 1, 2006, the DFARS said "A contracting officer's representative...May not be delegated authority to make any commitments or changes that affect price, quality, quantity, delivery, or other terms and conditions of the contract." The rule was then changed to the "Has no authority..." language (see 71 FR 69488). The stated purpose of the change was not to change this policy, but to "clarify the authority of the contracting officer's representative." For DoD, there's a required clause when using a COR at DFARS 252.201-7000 (DEC 1991). This clause states: "The COR is not authorized to make any commitments or changes that will affect price, quality, quantity, delivery, or any other term or condition of the contract." As such, the delegation that you described would not be permitted.

joel, I believe you.

joel, I'm not saying that the rule is practical or realistic. I'm just interpreting it as it is written.

Major premise: A COR has no authority to make any commitments or changes that affect price, quality, quantity, delivery, or other terms and conditions of the contract nor in any way direct the contractor or its subcontractors to operate in conflict with the contract terms and conditions. Minor premise: Person A has the authority to make commitments or changes that affect price, quality, quantity, delivery, or other terms and conditions of the contract. Conclusion: Person A is not a COR.

Answer 1: If the contract does not specify a particular method to perform the work, then a COR can't impose one. That would require a contract modification. Answer 2: Yes, the term "contracting officer" as defined at FAR 2.101 includes CORs acting within the scope of their delegated authority.

A suspension of work operates in conflict with the existing contract terms by design. For example, the contract says to perform construction and the suspension of work says to stop performing construction. That changes the contract. As such, FAR 1.602-2( d )(5) would prohibit a COR from issuing a suspension of work. Further, FAR 1.602-5 ( d )(5) are the only limitations that I know of in the FAR regarding what can be delegated to a COR.

Some days you're Michael, some days you're Fredo.

Yes, that's it. Not necessarily. FAR 25.103(e) is an exception to the Buy American Act, not the Trade Agreements Act. The purchase restriction at FAR 25.403( c ) would still apply.

Ask them if the listed experience or education is required, yes or no.

JDYoung, I can't find a definition of "quotation" that would include a response of "No quote". The FAR does not define "quotation". The Government Contracts Reference Book defines "quotation" as follows: Merriam-Webster.com defines "quotation" as: So, while "No quote" is a response to a solicitation in the general sense, it is not a "quotation". Nice try.

Nebraska, See FAR 19.703. How did ABC represent itself to you?

Have you read the Limitation of Cost clause?

Carl, Here's I-FSS-646, which I'm copying from one of your earlier posts: Blanket Purchase Agreements (BPA's) can reduce costs and save time because individual orders and invoices are not required for each procurement but can instead be documented on a consolidated basis. The Contractor agrees to enter into BPA's with ordering activities provided that: (a) The period of time covered by such agreements shall not exceed the period of the contract including option year period(s); (B ) Orders placed under such agreements shall be issued in accordance with all applicable regulations and the terms and conditions of the contract; and ( c) BPAs may be established to obtain the maximum discount (lowest net price) available in those schedule contracts containing volume or quantity discount arrangements. I read that as a binding promise to enter into a BPA provided the stipulated conditions are met. However, I don't see anything about what the legal effect of the BPA will or must be. In my experience with FSS BPAs, the BPA was little more than a discount off the FSS price. In my opinion, those lacked consideration and probably weren't enforceable. However, that wouldn't support a general proposition that FSS BPAs are not contracts. There may be some out there that are contractually enforceable.

That's correct. Even though the DFARS doesn't specifically say this, the final rule makes it clear as to the DAR Council's intent. Also, you are misinterpreting the "Notwithstanding..." sentence at FAR 12.301( d ). Read it like "Regardless of the prescriptions contained elsewhere in the FAR..." Lastly, in case you are working on a commercial solicitation, see my Solicitation Preparation Guide.

The blurb "including solicitations and contracts using FAR part 12 procedures for the acquisition of commercial items" is a DFARS convention--I don't think you'll find it in the FAR. Every provision/clause prescription that contains that blurb is listed at DFARS 212.301. Only those provisions and clauses listed at DFARS 212.301 are required in solicitations and contracts for commercial items. As far as FAR clauses, the general rule is that if a provision or clause is not prescribed in FAR part 12, it's not required in a solicitation or contract for commercial items. See FAR 12.301( d ). You would not separately cite FAR 52.222-50 in a solicitation/contract for commercial items, since it's already incorporated by reference at FAR 52.212-5( a ).

How do you know that is true as a general proposition?

FYI, this has been discussed before.

Offeror: I don't have to submit additional information because the subcontracts are for commercial services. DCChris23: I'm not requesting certified cost or pricing data, which I'm prohibited from obtaining from you for commercial subcontracts. However, I still need to determine the reasonableness/realism of your proposed costs. I am unable to do that with the information that you have provided. Unless I can determine the reasonableness/realism of your proposed costs, the Government will be unable to award you a contract. Offeror: Thank you for clarifying this, DCChris23. Please let me know what you need and I'll see if we have that information. DCChris23: Great. Please send me...

When pricing subcontracts, there's nothing wrong with requesting additional information to determine a fair and reasonable price. The fact that the subcontracts are commercial would prohibit you from obtaining certified cost or pricing data, but not all cost or pricing data. Price the subcontracts the way you would at the postaward stage.

Thanks, joel. I must have been thinking of the recent thread you posted--not a recent case. Good description of the issue in the Briefing Paper. Thanks for the link.

Thanks, joel. The case I thought I read had to do with noncompliance with either the BAA or the TAA. I haven't run that to the ground yet. If I find it I'll post it here.