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CAS applicability to delivery orders under IDIQ contracts

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If full CAS coverage is correclty applied to an IDIQ contract (i.e. none of the exemptions apply), does the CAS applicability flow down to all subsequently awarded delivery orders under that IDIQ contract? Example: A cost plus incentive fee delivery order for $600K which would qualify for an exemption (under $700K) except in this case the $600K delivery order is just one of many delivery orders totaling over $50 million under the CAS covered IDIQ contract. Thanks in advance for your help on this topic.

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If full CAS coverage is correclty applied to an IDIQ contract (i.e. none of the exemptions apply), does the CAS applicability flow down to all subsequently awarded delivery orders under that IDIQ contract? Example: A cost plus incentive fee delivery order for $600K which would qualify for an exemption (under $700K) except in this case the $600K delivery order is just one of many delivery orders totaling over $50 million under the CAS covered IDIQ contract. Thanks in advance for your help on this topic.

Yes, if you believe the FAR Councils. Don Acquisition has an excellent discussion of the applicability of TINA and CAS to such contract types. See his blog entry.

Don's discussion should be a "must-read" for all who deal with ID/IQ types.

H2H

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Don's article also appears at 24 N&CR ? 50 (Oct. 2010). Of course, the discussion in Federal Register comments is not binding, but it seems to be the only guidance that seems to be entirely on point. Prior to FAC 2005-01 (70 Fed. Reg. 11743), it was understood to be an open question (and, to my mind at least, still is). Here's what Karen Manos says in 2 Government Contract Costs & Pricing section 60:7:

Professors Nash and Cibinic [8 N&CR ? 41] suggested that a similar approach [to an analogy drawn to Service Technicians, 70 Comp. Gen. 676 (1991), B-243606, Aug. 7, 1991, 91-2 CPD ? 136] be used in the context of applying the CAS thresholds, i.e., that the "value" of an ID/IQ contract should be determined based on the government's estimate of what will actually be ordered over the life of the contract. The professors' suggested approach seems reasonable.

I couldn't find anything suggesting Department of Defense Working Group Guidance (WGG) 76-2 discussed in the N&CR article remains current. [Edit: It appears the substance of this Guidance appears in DoD CAS Working Group Paper 76-2, which, according to DCAA's Contract Audit Manual, remains current. See, e.g., CAM section 8.103-5. I'm not sure that this is the current version, but if it is, it doesn't directly answer the issue.] The issue is mentioned in passing in Victorino & Chierichella, Multiple Award Task & Delivery Order Contracts, 96-10 Briefing Papers 1 (Sept. 1996).

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If full CAS coverage is correclty applied to an IDIQ contract (i.e. none of the exemptions apply), does the CAS applicability flow down to all subsequently awarded delivery orders under that IDIQ contract? Example: A cost plus incentive fee delivery order for $600K which would qualify for an exemption (under $700K) except in this case the $600K delivery order is just one of many delivery orders totaling over $50 million under the CAS covered IDIQ contract. Thanks in advance for your help on this topic.

What did you use to determine the value of the IDIQ contract (i.e., minimum quantity, maximum quantity, something else) in making your determination that the contract is subject to the CAS?

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Thanks all for jumping in. You're right; Don Acquisition's Blog was an excellent read. I understand even further now why I struggle with this question.

For what it's worth I've always viewed the CONTRACT ACTION as the basis for determining whether TINA (and in the absence of tailored definitions for TINA/CAS/Limitation of Funds/etc) or other such requirements apply. If we were to use the overarching value of a contract as the basis to apply TINA for example, one might see the requirement for submission of cost or pricing data for say a $5K delivery order under an IDIQ contract with a ceiling of $100M, or a $5K mod to a stand-alone non-competitive $200M FFP contract. Clearly that would not be practical across federal contracting business.

As Don's Blog reveals, the question gets murkier when we try to apply one definition of "contract" to all concepts such as TINA/CAS/Rule of 2 etc. Although I don't have a definitive answer I am much more informed on the topic.

NOTE: To the person who asked about whether the value was based on the Min or max value, I was simply establishing that the IDIQ was in fact correctly assigned under CAS coverage. It was more the subsequent delivery order scenarios I was seeking to clarify.

Thanks again

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Thanks all for jumping in. You're right; Don Acquisition's Blog was an excellent read. I understand even further now why I struggle with this question.

For what it's worth I've always viewed the CONTRACT ACTION as the basis for determining whether TINA (and in the absence of tailored definitions for TINA/CAS/Limitation of Funds/etc) or other such requirements apply. If we were to use the overarching value of a contract as the basis to apply TINA for example, one might see the requirement for submission of cost or pricing data for say a $5K delivery order under an IDIQ contract with a ceiling of $100M, or a $5K mod to a stand-alone non-competitive $200M FFP contract. Clearly that would not be practical across federal contracting business.

As Don's Blog reveals, the question gets murkier when we try to apply one definition of "contract" to all concepts such as TINA/CAS/Rule of 2 etc. Although I don't have a definitive answer I am much more informed on the topic.

NOTE: To the person who asked about whether the value was based on the Min or max value, I was simply establishing that the IDIQ was in fact correctly assigned under CAS coverage. It was more the subsequent delivery order scenarios I was seeking to clarify.

Thanks again

How do you know that the "IDIQ was in fact correctly assigned under CAS coverage" without first answering the basic question of how to compute the value of the contract? To the best of my knowledge, how to compute the value of such a contract is an open question since I have not been able to find an appeals board or court decision that specifically addresses that issue in this context. However, there are cases that address the issue in other contexts that hold that it is the minimum amount that determines the value of an IDIQ contract. For example, see Travel Centre v. Barram, 236 F.3d 1316 (2001) and Varilease Technology Group, Inc. v. U.S., 289 F.3d 795 (2002).

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Retreadfed,

Good point but it was just a ficticious IDIQ I made up with the assumption that CAS applied so I could get to the delivery order question. But to your point, if we were to use the minimum value of an IDIQ as you suggested to determine what applies, I could see problems in that many of the minimum values I've seen over the years were simply nominal values (despite the guidance at 16.504(a)(2) which states it should be more than a nominal quantity). Example: more often than not I've seen IDIQ minimum assigned something like $1000 with a ceiling/anticipated value of $100M. Not saying it's right, only that's what I've seen.

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How do you know that the "IDIQ was in fact correctly assigned under CAS coverage" without first answering the basic question of how to compute the value of the contract? To the best of my knowledge, how to compute the value of such a contract is an open question since I have not been able to find an appeals board or court decision that specifically addresses that issue in this context. However, there are cases that address the issue in other contexts that hold that it is the minimum amount that determines the value of an IDIQ contract. For example, see Travel Centre v. Barram, 236 F.3d 1316 (2001) and Varilease Technology Group, Inc. v. U.S., 289 F.3d 795 (2002).

It is not an open question of how to compute the value of an IDIQ contract for purposes of application of dollar thresholds. See FAR 1.108( c). For purposes of application of dollar thresholds, the value of an IDIQ contract is the contract maximum.

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It is not an open question of how to compute the value of an IDIQ contract for purposes of application of dollar thresholds. See FAR 1.108( c). For purposes of application of dollar thresholds, the value of an IDIQ contract is the contract maximum.

Vern, I appreciate your opinions and insights. However, I know there are others whose opinions I also appreciate who have a different view. Can you support this assertion with some authoritative citation?

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The issue is the dollar value of an IDIQ contract for purposes of the application of dollar thresholds. I gave you an authoritative citation -- FAR 1.108( c). I am not offering you an opinion or insight. I'm reporting the language of the Federal Acquisition Regulation.

I know of no case dealing with determinations of dollar value of an IDIQ for the purposes of applying dollar thresholds. I know of no case that invalidates the rule in FAR 1.108( c) and neither do you. Neither of the cases cited by you has anything whatsoever to do with the determination of dollar values of IDIQ contracts for the purpose of applying dollar thresholds. Nothing whatsoever. The courts and the boards have relied on FAR 1.108 for other purposes, so why not the one in question? See Bearing Point, Inc. v. U.S., 77 Fed. Cl. 109 (2007) and Textron, Inc. v. U.S., 74 Fed. Cl. 277 (2006).

See also FAC 2005-50, 76 FR 14559, 14560, March 16, 2011:

The FAR (1.108( c)) establishes the following rule:

Dollar thresholds. Unless otherwise specified, a specific dollar threshold for the purpose of applicability is the final anticipated dollar value of the action, including the dollar value of all options. If the action establishes a maximum quantity of supplies or services to be acquired or establishes a ceiling price or establishes the final price to be based on future events, the final anticipated dollar value must be the highest final priced alternative to the Government, including the dollar value of all options.

Unless there is a specific reason, such as a statutory requirement to establish the dollar value of a procurement using a different method, agencies will not deviate from this FAR convention.

See also FAC 2005-22, 72 FR 65873, 65877, November 23, 2007:

Comment: One respondent is concerned that the rule fails to state how the $5 million threshold for the application of the clause is to be determined and questions if the threshold should apply to contracts with multi-years as the option years for such contracts may not be awarded, thereby impacting the total value of the contract award. The respondent recommends that the threshold apply to contracts with one term and only to the base year in contracts with options.

Response: FAR 1.108( c) provides uniform guidance for application of thresholds throughout the FAR.

IDIQ contracts establish a maximum quantity (dollar value) pursuant to FAR 16.504(a)(1) and (4)(ii). There is no statutory requirement to establish the dollar value of an IDIQ contract for purposes of applying dollar thresholds using a different method.

As far as I'm concerned, there is no issue. You can think what you please.

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Gibson, don't think in terms of contract actions. The general rule is, "If the initial contract is covered, changes and amendments thereto are also subject to CAS, even though they might otherwise be exempted ($500,000 or under, for example). If, however, the initial contract is not covered, changes and amendments are not covered." Cibinic & Nash, Cost-Reimbursement Contracting (3d Ed. 2004), at 661.

In this Wifcon thread from 9 Nov 07, Vern discussed how "CAS may apply on a task order by task order basis." It isn't obvious to me whether I've misunderstood his post, he has changed his mind or if the issues in the two threads are distinguishable.

Prior to 4 Nov 93, "net awards" in the CAS meant "the total obligated value of negotiated prime contract and subcontract awards received during the reporting period." (emphasis added). The CASB redefined "net awards" on 4 Nov 93 to mean the total value of negotiated covered prime contract and subcontract awards, including the potential value of contract options received during the reporting period.

The issue as I understand it (which apparently is not very well) is whether task orders against an ID/IQ contract should be treated like options for purposes of assessing CAS coverage. The FAR Council appears to believe that they should. Is the "total value" of an ID/IQ contract (when no longer tied to a government obligation) its ceiling? Probably [edit: for a priced IDIQ]. Nash & Cibinic in the article I cited earlier attempts to distinguish task orders from options, but they don't go so far as to suggest that the contract minimum should be used in assessing whether CAS applies. They did, however, recommend something other than contract ceiling. However, this article--while after the CAS change--was before FASA (and, of course, before the comment in the Federal Register). I don't think anyone would fault a CO for using the ceiling.

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Jacques,

Thank you. Your insight is very helpful. Your latest post draws an important distinction between CAS and TINA (i.e. it's not uncommon to hear some of our junior folks get these to concepts intertwined).

You point out the idea that one should not be thinking in terms of "action" value when considering the application of CAS but rather the [potential] contract value. But clearly the value of a given contract "action" (mod, delivery order, other) would drive the applicability of TINA and whether a certification is required. Agree?

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But clearly the value of a given contract "action" (mod, delivery order, other) would drive the applicability of TINA and whether a certification is required. Agree?

The question seems to be off-topic, so it might be better for a different thread. I recommend a close read of Don's blog entry, "Commonly Understood": I Think Not. If you have access to it, I would also encourage you to take a look at Nash & Cibinic, Task Order Contracting: Too Much of a Good Thing?, 7 N&CR ? 63 (Nov. 1993).

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Here is the original question in this thread:

If full CAS coverage is correclty applied to an IDIQ contract (i.e. none of the exemptions apply), does the CAS applicability flow down to all subsequently awarded delivery orders under that IDIQ contract? Example: A cost plus incentive fee delivery order for $600K which would qualify for an exemption (under $700K) except in this case the $600K delivery order is just one of many delivery orders totaling over $50 million under the CAS covered IDIQ contract. Thanks in advance for your help on this topic.

The applicability of CAS to an IDIQ contract is a complex question for several reasons. First among them is that IDIQ contracts can be written so as to enable an agency to buy different things under different contract types. Dollar threshold is only one criterion for determining the applicability of CAS. Here is the rule about CAS applicability, from 48 CFR ? 9903.201-1(B):

(B) The following categories of contracts and subcontracts are exempt from all CAS requirements:

(1) Sealed bid contracts.

(2) Negotiated contracts and subcontracts not in excess of the Truth in Negotiations Act (TINA) threshold, as adjusted for inflation (41 U.S.C. 1908 and 41 U.S.C. 1502(B)(1)(B)). For purposes of this paragraph (B)(2), an order issued by one segment to another segment shall be treated as a subcontract.

(3) Contracts and subcontracts with small businesses.

(4) Contracts and subcontracts with foreign governments or their agents or instrumentalities or, insofar as the requirements of CAS other than 9904.401 and 9904.402 are concerned, any contract or subcontract awarded to a foreign concern.

(5) Contracts and subcontracts in which the price is set by law or regulation.

(6) Firm fixed-priced, fixed-priced with economic price adjustment (provided that price adjustment is not based on actual costs incurred), time-and-materials, and labor-hour contracts and subcontracts for the acquisition of commercial items.

(7) Contracts or subcontracts of less than $7.5 million, provided that, at the time of award, the business unit of the contractor or subcontractor is not currently performing any CAS-covered contracts or subcontracts valued at $7.5 million or greater.

(8)?(12) [Reserved]

(13) Subcontractors under the NATO PHM Ship program to be performed outside the United States by a foreign concern.

(14) [Reserved]

(15) Firm-fixed-price contracts or subcontracts awarded on the basis of adequate price competition without submission of cost or pricing data.

Now suppose that you have an IDIQ contract which permits orders to be priced in different ways, e.g., FFP, CPFF, and T&M, with or without competition, and for different items of supply or different kinds of services, e.g., both commercial and noncommercial items. (Contracts for commercial items are exempt.) And suppose that each order stands alone, i.e., has no connection to other orders except for the fact that they were issued under the same contract. So it is possible that one order might be exempt pursuant to the above regulation, while other orders are not.

To the best of my knowledge the issue of whether the exemptions apply to all orders under the contract or only to the nonexempt orders has not been resolved by any tribunal - BCA, Court of Federal Claims, or Federal Circuit. I think that a good argument could be made for applicability at the order level. I also think that a good argument could be made for applicability at the contract level.

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In looking at whether a task order or delivery order is a contract, it is interesting to see how the terms ?negotiated? and ?acquisition? might apply in making a distinction on whether a task order or delivery should be considered a contract or not. Could it be possible that under certain IDIQs, that if a task order is awarded though an acquisition process that it is considered a contract, and if it is just an order placed for supplies and services under an existing contract, without going through an ?acquisition? then it is not considered a contract? The definition of acquisition in 2.101 includes the ?acquiring by contract? and ?solicitation and selection of sources?. It is easy to see some task orders and delivery orders under IDIQs falling under this context and others not.

FAR part 15 applies to ?negotiated acquisitions? and ?negotiated contracts?, not just contracts. Likewise, FAR part 30 applies to ?negotiated contracts?. Perhaps some task orders and delivery orders do not fall under ?negotiated contracts?.

If you read DON?s blogs on this subject carefully from this vantage you do not necessarily see a conflict.

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In looking at whether a task order or delivery order is a contract, it is interesting to see how the terms ?negotiated? and ?acquisition? might apply in making a distinction on whether a task order or delivery should be considered a contract or not. Could it be possible that under certain IDIQs, that if a task order is awarded though an acquisition process that it is considered a contract, and if it is just an order placed for supplies and services under an existing contract, without going through an ?acquisition? then it is not considered a contract? The definition of acquisition in 2.101 includes the ?acquiring by contract? and ?solicitation and selection of sources?. It is easy to see some task orders and delivery orders under IDIQs falling under this context and others not.

FAR part 15 applies to ?negotiated acquisitions? and ?negotiated contracts?, not just contracts. Likewise, FAR part 30 applies to ?negotiated contracts?. Perhaps some task orders and delivery orders do not fall under ?negotiated contracts?.

If you read DON?s blogs on this subject carefully from this vantage you do not necessarily see a conflict.

Whynot,

At this point, there is (or should be) little doubt in any acquisition professional's mind that each task/delivery order is, indeed, a contract as defined in FAR 2.101. The ASBCA just bolstered this interpretation in July.

See WestWind Technologies, No. 57436.

Appellant contends that the $100,000 fee withholding limitation stipulated in FAR 52.216-8(B) is to be applied once per each of the two base contracts, regardless of the number, prices and fees oftask orders issued. Appellant emphasizes that FAR 52.216-8(B) is included in the base contract and argues that the limitation applies to ''this contract."

The government maintains that the fixed-fee withholding limitation applies to each order, arguing that the orders meet the FAR 2.101 definition of a contract and the base contract does not contain a schedule or fixed-fee. Therefore, the only appropriate interpretation according to the government is to apply the Fixed Fee clause withholding limitation to each order.

Summary judgment for Government. Motion for reconsideration denied.

The only area of controversy appears to be the valuation of the ID/IQ contract (sans any Task/Delivery orders) for purposes of determining CAS coverage. Vern and I differ on whether FAR 1.108© is dispositive. One day, perhaps soon, a Court will address this issue and let us all know what the correct answer is.

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help:

Why do we differ? On what basis do you think that the value is determined if not on the basis of 1.108( c)? The CAS give no instructions. I don't think that that any court of board has stated a different standard. You have to have some basis. What's yours and why does it trump 1.108( c)?

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help:

Why do we differ? On what basis do you think that the value is determined if not on the basis of 1.108( c)? The CAS give no instructions. I don't think that that any court of board has stated a different standard. You have to have some basis. What's yours and why does it trump 1.108( c)?

Vern,

As you know it's my general policy not to get into extended arguments on a public forum. In addition, this issue is related to some ongoing litigation so I need to be careful what I post.

I will offer the opinion that using FAR to interpret CAS violates 41 U.S.C. 1502. The statute gives the CAS Board -- and not the FAR Councils -- "the exclusive authority to make, promulgate, amend, and rescind cost accounting standards and interpretations thereof designed to achieve uniformity and consistency in the cost accounting standards governing measurement, assignment and allocation of costs to contracts with the United States." (Emphasis added.)

And that's all I'm going to say on this topic.

H2H

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help:

You enter the discussion and say that you disagree on the basis for determining the value of a contract, but won't say on what basis you would make the determination. What's the point in that? If you can't or won't fully explain, perhaps you shouldn't comment at all.

A CO must decide whether or not CAS apply. The CAS Board has given no guidance on how to determine the dollar value of a contract for purposes of application of the threshold. A CO must have some rational basis for making a decision in that regard. FAR 1.108( c) provides a rational basis, and the CAS are part of the FAR System. Anyone who disagrees with that basis must show that it conflicts with the CAS Board's rules or that some other basis would be more reasonable.

In 2 Government Contract Costs & Pricing 2d, ? 60:7, Karen Manos discusses this issue and says that it is something of a mystery, since no reported cases have addressed the issue. I can't quote her at length because of copyright limitations, but I don't think that the "estimated value" method she discusses as recommended by Cibinic and Nash will work in today's IDIQ multiple award environment, and other experts, including Nash, also doubt it. Who knows? FAR 1.108( c) has the advantage over the "estimated value" approach by setting a clear, uniform standard of applicability.

As for using FAR to interpret CAS, I don't think there is any issue unless FAR conflicts with something the CAS Board has stated, in which case the CAS would govern. There is no conflict between FAR 1.108( c) and anything the CAS Board has said, because the CAS Board has been silent on the issue of determining the value of an IDIQ contract for applicability purposes. And see ATK Thiokol, Inc. v. U.S., 68 Fed. Cl. 612 (2005):

Where the CAS does not provide a definition of a particular term or phrase, the United States Court of Appeals for the Federal Circuit has advised trial courts to consult dictionaries or definitions in related regulations for interpretative guidance. See Rumsfeld v. United Technologies Corp., 315 F.3d 1361, 1369 -1370 (Fed.Cir.2003) (?We initially turn, therefore, to standard dictionary definitions and other pertinent regulations.?) (citing Estate of Cowart v. Nicklos Drilling Co., 505 U.S. 469, 477, 112 S.Ct. 2589, 120 L.Ed.2d 379 (1992) (relying on dictionary definition and related statutory provisions to interpret a statute)); see also Wis. Dep't of Revenue v. William Wrigley, Jr., Co., 505 U.S. 214, 223, 112 S.Ct. 2447, 120 L.Ed.2d 174 (1992) (using BLACK'S LAW DICTIONARY to interpret a statute).
Emphasis added. Note, for example, that 48 CFR Part 9903, Contract Coverage, does not define "negotiated contract." Is it defined anywhere in the CAS? If not, how can you know what that term means, and apply CAS, without consulting FAR 15.000? FAR is used to interpret many regulations that are promulgated by other officials. See, e.g., virtually all of FAR Part 22, which interprets regulations that only the Secretary of Labor can issue.

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And suppose that each order stands alone, i.e., has no connection to other orders except for the fact that they were issued under the same contract. So it is possible that one order might be exempt pursuant to the above regulation, while other orders are not.

Vern, thanks for clarifying. The 1993 CAS change appears to change the focus from what the government has obligated to what the government can unilaterally do (exercise option, incrementally fund). To my mind, the heart of your observation is the absence of a unilateral right in the government to issue a priced order. To keep with the option analogy, the option has to be a "priced option" to be included in calculating whether the threshold has been met. Put somewhat differently, for purposes of CAS, an IDIQ basic contract that lacks binding prices (or, perhaps in some circumstances like a term or best efforts contract, binding rates) looks more like a basic ordering agreement (where CAS coverage is determined on an order-by-order basis) than it does an option. If you feel I've missed the point, I'd appreciate additional clarification.

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H2H

I read the cited case - it appears that there was some very specific terms and conditions in the contract dealing with the handling of task orders. The decision was based on the stated language in the contract - not on any interpretation of FAR or otherwise. Try again.

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I don't think you've missed the point. What I think is that the modern IDIQ contract for services (task order contract) confronts us with issues that have not been addressed by the regulation writers and that have not been resolved by the courts. Until there is some resolution, COs must do the best they can to decide how to go forward. That means that compliance will be uncertain and implementation will be inconsistent.

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Actually, I think the case that H2H cited supports my position. Clearly each task order went through an acquisition process whereby they were individually solicited, negotiated and awarded. They appear to be separate negotiated contracts.

http://www.asbca.mil/Decisions/2011/57436_072111_WEB.pdf

I would think that we could look to FAR 15.000 for a definition of ?negotiated contract?. Looks to be a contract awarded through a competitive or noncompetitive negotiated acquisition procedure. We also know that a contract awarded through a sealed bid acquisition procedure is not a negotiated contract. We can look to FAR 2.101 for a defintion of acquisition.

There does appear to be a distinction between a contract and a negotiated contract.

So, while each task order may indeed be a contract not all task orders are negotiated contracts.

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I will offer the opinion that using FAR to interpret CAS violates 41 U.S.C. 1502.

That is a remarkable assertion. So when we interpret the term "commercial item" at 48 CFR 9903.201-1( b )(6), where it states that commercial items are generally exempt from CAS, we should not use the definition at FAR 2.101 because doing so would violate 41 U.S.C. 1502? If so, then what definition of "commercial item" should we use?

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That is a remarkable assertion. So when we interpret the term "commercial item" at 48 CFR 9903.201-1( b )(6), where it states that commercial items are generally exempt from CAS, we should not use the definition at FAR 2.101 because doing so would violate 41 U.S.C. 1502? If so, then what definition of "commercial item" should we use?

Don I believe logic suffers from the "false analogy fallacy".

H2H

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