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So I am seeking opinions, and hopefully evidence. I want to consider the DFARS definition of consolidation of requirements only, and not to even discuss bundling, my scenario is OCONUS and FAR 19 for the most part doesn't apply and neither does bundling. However, DFARS part 7 does apply and there is debate regarding how to apply the definition of consolidation to construction requirements.

DFARS -207.170-2 Definitions.

“Consolidation of contract requirements” means the use of a solicitation to obtain offers for a single contract or a multiple award contract to satisfy two or more requirements of a department, agency, or activity for supplies or services that previously have been provided to, or performed for, that department, agency, or activity under two or more separate contracts.

Furthermore, the DoD Office of Small Business Programs further defines bundling and consolidation in their Guidebook dated Oct 2007.

http://www.acq.osd.mil/osbp/news/Bundling%20Guidebook%20October%202007.pdf

in this guidebook the definition of consolidation states "As recently defined in statute, for a consolidation to exist, the proposed acquisition must be combining two or more requirements that were previously provided or performed under separate contracts."

It also gives a definition of consolidation and "new work" in that it says a previously performed requirement combined with "new work, i.e., work that has never been performed under contract." is still consolidating.

So how would these definitions ever apply to construction? The argument is that Agency XYZ has previously built a Dining Facility at Fort Fairy Tale. So when you go to build a Dining Facility at Fort Dumbo you have a previously performed requirement under a separate contract. I disagree with that interpretation, they are totally separate requirements because they are totally separate locations with different environments, site conditions, etc.

In conclusion I don't see how consolidation definition can ever apply to construction. I can see how bundling could apply to construction because that has to do with limiting small business participation. But I believe consolidation strictly applies to supplies/services.

For those who know construction, there are individuals that believe if you combine two facilities, you are "consolidating", and then those who think only when you combine separately appropriated Project Numbers it is considered "consolidating". I have yet to been given any evidence supporting these claims, just passing along the info I've been given, and not saying there isn't evidence either.

Agree? Disagree? Have any evidence? Let me know. Thanks!

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no replies! come on, well I found this case, and WIFCON links to it,

http://www.wifcon.com/cofc/08-94c.pdf

but the court failed to rule whether bundling or consolidation applies to Construction, but rather they ruled in the Government's favor because they performed the D&F and found that bundling/consolidation was justified. The court noted the following:

"whether the bundling provisions of 15 U.S.C. & 631(j) should or do apply to acquisitions for new construction is a question we leave to Congress. To resolve the matter at hand, it is enough for us to conclude, assuming (without deciding) that the provisions do in fact apply, that the Corps has demonstrated that the consolidation of the contract requirements was necessary and justified..."

Another good memo I found on the specific case above dated 30 March 2009 from the USACE Assistant Chief Counsel Procurement Law and Contract Disputes, cited the following:

"The court did not hold that there is any categorical exemption for new construction....The Chief Counsel's Office has previously declined to adopt the legal position that, as a categorical matter, "new construction" should be exempt from any bundling or consolidation analysis. In light of the Court's failure to rule on the argument that "new construction" is exempt from the bundling and consolidation statutes, adopting such a categorical position at this time would leave the Corps unnecessarily exposed..."

so in summary, no one makes a decision, and contracting professionals get bogged down with unnecessary memos and justifications.

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