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Dingo and Don by definition of Commercial and my reading on the requirement I say it is commercial. However, I want to get some input on Navy requirements as I am new to ship repair acquisitions. Basically, the requirement is what they call an “Availability” (i.e., Scheduled Maintenance/Repair), specifically, docking phase maintenance availability (DPMA) on a vessel. The NAICS code used is 336611 with a PSC of J999. I guess what I am confused about is if we decided to use the Walsh-Healey Public Contracts Act, it would make the acquisition non-commercial – or am I wrong on this assumption. Has anyone had experience with procuring an “Availability” requirement using FAR Part 13.5?

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"...if we decided to use the Walsh-Healey Public Contracts Act, it would make the acquisition non-commercial..."

You cannot say you're using Walsh-Healey; therefore, the acquisition is not commercial.

You're approaching it from the wrong direction. Here's the right way -- if the acquisition is for a commercial item, then the Walsh-Healey Public Contracts Act does not apply. See FAR 12.504( a )( 4 ).

But you're probably covered by 10 USC 7299, where we read, "Each contract for the construction, alteration, furnishing, or equipping of a naval vessel is subject to the Walsh-Healey Act (41 U.S.C. 35 et seq.) unless the President determines that this requirement is not in the interest of national defense."

You're buying repair -- is repair covered by "construction, alteration, furnishing, or equipping"?

Follow the link below for a Coast Guard acquisition for ship repair using FAR 13.5:

https://www.fbo.gov/index?s=opportunity&mode=form&id=9530744461b329525653c4593735180e&tab=core&_cview=1

You might need answers from a Navy-specific source -- hopefully, your attorneys have already dealt with these questions before. Good luck! Let us know your answer.

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ipod24,

I am familiar with your situation. Like ji20874 says, you are looking at it backwards.

Regarding 10 U.S.C. 7299, the GAO has rejected the argument that it covers ship repair. From G. Marine Diesel Corp., 68 Comp. Gen. 411, B-234196 (May 1, 1989):

First, 10 U.S.C. Sec. 7299 does not refer to ship repair and the Coast Guard does not explain why a ship repair contract should be considered to fall under 10 U.S.C. Sec. 7299. Further, the purpose of that legislation was to make clear the view of Congress that contracts for the construction or alteration of vessels are subject to the Walsh Healey Act. See 42 Comp.Gen. 467, at 477, supra. The legislation does not relate to whether ship repair contracts are to be considered service or supply contracts.

[...]

It is most significant, in our view, that the Coast Guard makes no argument that the classification of such a repair contract as one for supplies is logical. We do not understand how it can be argued that as between the two categories-- supplies or services-- a contract for the repair of a vessel is classified as one for the vessel itself rather than for the repair services to be performed on that vessel. Since we think the solicitation was properly one for services, the protester's failure to complete the Small Business certification does not affect the responsiveness of the bid. BCI Contractors, Inc., B-232453, Nov. 7, 1988, 88-2 CPD Para. 451. We therefore conclude that the protester's low bid was improperly rejected and we sustain the protest.

In Matter of: Century Marine Corporation--Reconsideration; Century Marine Corporation—Protest, B- 233574, B- 234255, B- 234256, B- 233574.2, 89-1 CPD P 505 (May 25, 1989), the Comptroller General further explained his position:

The analogy to 10 U.S.C. § 7299 must also fail because ship repair is not legally recognized as equivalent to ship alteration or ship construction work. For example, we point out that repair work, including the repair of such things as aircraft and vehicles, generally, is considered service work subject to the Service Contract Act. See 29 C.F.R. § 4.130(a)(33) (1988). In contrast, FAR § 2.101 (FAC 84-26) specifically defines alteration of vessels as "supplies."

Despite these decisions, the position of the Naval Sea Systems Command is that ship repair is a supply because Walsh-Healey applies to it.

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Don has distilled this discussion very well.

Very long story short, if this is NAVSEA, you will receive an audit finding during a PSP for using FAR 13.5, and rightfully so. I just saw a recent writeup for this from one of the RMCs.

If you're interested, read this for an unabridged discussion...

http://www.wifcon.com/discussion/index.php?/topic/2267-accounting-for-geographic-location-of-offeror-in-price-evaluation/?hl=%2Bship+%2Brepair#entry19507

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Wow Don and Dingo thanks for the detailed discussion you both have had relative to my posting - this gives me insight on the Navy ship repair requirement, which initially I couldn't wrap my head around especially from NAVSEA's approach on scarcely instilling commercial practice on SOME services done on Navy vessels.

Looking more on trying to streamline an acquisition I am currently working on, considering of course cost, administration/time, and quality. And as I've stated, I am new to Navy ship repair. My requirement in my opinion clearly screams commercial service; however with NAVSEA and its guidance, the acquisition approach led me to treat the requirement as a non-commercial “supply,” and apply the Walsh-Healey Act. Now, Dingo did mention in his opinion that he doesn’t necessarily believe that “a wage determination should drive the entire body of the contract,” but in my case, with a simple service that I feel could be done commercially; it isn’t a viable option. Because as NAVSEA sees it, my requirement is done to a Navy vessel, thus, the push for the applicability of the Walsh-Healey Act -- justifying why ship repair requirements should not be treated as commercial, and its interpretation of the service being a “supply,” is a more reasonable acquisition approach.

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