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FAR 52.222-46 and FAR Part 12 Commercial Items/Services Solicitations


govt2310

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I found this fascinating thread on whether FAR 52.222-46 applies to FAR 16.505 task order solicitations:

So now I am asking, does FAR 52.222-46 apply to FAR Part 12 Commercial Items/Services Solicitations?  FAR 12.301(d) and (e), FAR 12.302, and FAR 12.503 lead me to think that FAR 52.222-46 is not required to be included in a commercial type solicitation, but if the CO chooses to include it, the CO can do that.  Note, however, the FAR Matrix at FAR 52.301 indicates that FAR 52.222-46 was not intended to be used with Commercial Item ("CI") type of solicitations.  So the proviso at FAR 22.1103 saying that the CO must include this clause where the value is > $700,000 and a "meaningful" number of professional employees are involved and it is for a "negotiated contract" doesn't apply to a FAR Part 12 commercial type of solicitation?  Note, I have seen GAO decisions involving solicitations that were FAR Part 12 and FAR Part 15, and a dispute over FAR 52.222-46 was at issue, and no one in these GAO decisions tried to say that since the solicitation was FAR Part 12 commercial, then FAR 52.222-46 didn't apply.  Hmm.

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FAR 52.222-46 applies if the contracting officer includes the provision in the solicitation.  It is required in a solicitation for a non-commercial item contract as prescribed in FAR 22.1103 -- this includes a multiple-award IDIQ parent contract but not an order.  It is not prescribed for a solicitation for any commercial item contract, but one supposes it may be included under FAR 12.301(e).

For an order, the contracting officer establishes the procedures, either at the parent IDIQ contract level or at the order level.  One supposes the clause may be used in a notice for an order under a multiple-award IDIQ contract.

This means a contracting officer must think and must make a decision in the exercise of his or her discretion.

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Certainly you could make it applicable.  But why?  The first sentence of the clause implies it’s largely for recompetitions.  You worry about the contractor not retaining or able to recruit.  But if you’re buying commercial professional services, you shouldn’t be asking for that kind of data.  Plus most procurements for professional services use a trade off selection process.  Price usually has a low priority.  And probably the most important thing is an incumbent doing a good job doing professional services shouldn’t lose a competition.  If you do bad work, cutting rates won’t usually help you win.

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It sounds like you won't be using the provision in your solicitations for commercial item contracts.

I haven't expressed a preference either way for my own practice or as advice to others. But you asked why some might use the provision in solicitations for commercial items for services.  I'll offer a few thoughts:

  1. Some of our fellow practitioners extend the definition of commercial item for services far beyond what the FAR text contemplates, so they feel they need the assistance the provision can sometimes provide.
  2. Some of our fellow practitioners are simply unaware of FAR 12.102(c) and 12.301(d), so they read FAR 22.1103 and include the provision even though they needn't.
  3. Some of our fellow practitioners include the provision simply because it was in the sample or template they copied from.

As I wrote above, a contracting officer must think and must make a decision in the exercise of his or her discretion.  Some of our fellow practitioners are unable or unwilling to think, to make a decision, or to exercise discretion.  It seems our policy, oversight, review, and legal bureaucracies have smothered these possibilities.  In all this, I write generally rather than universally.  

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