The prescription for clause 52.208-9 Contractor Use of Mandatory Sources of Supply or Services, at FAR 8.005, states the following: 

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Insert the clause at 52.208-9, Contractor Use of Mandatory Sources of Supply and Services, in solicitations and contracts that require a contractor to provide supplies or services for Government use that are on the Procurement List maintained by the Committee for Purchase From People Who Are Blind or Severely Disabled. The contracting officer shall identify in the contract schedule the supplies or services that shall be purchased from a mandatory source and the specific source.

I don't know if it's just me, but I'm really thrown off by the "for Government use" part. What does that mean?

Does it have to be for direct Government use - e.g., a contractor who has a contract to operate and maintain a Government facility at which Government people work, and they have to provide janitorial services, toilet paper, cleaning supplies, etc. In that case, the contractor is providing services directly for the Government's use and their contract should include this clause, and they should be using AbilityOne to provide the service.

Or does it mean "for use on (or in support of) a Government contract" - i.e., for the ultimate (though indirect) benefit of the Government? The clause clearly applies when the contractor is providing supplies or services for the direct use of the Government, but does the use of the clause also extend to broader use - like providing services in support of a Government contract? 

I looked up the Proposed Rule and the Final Rule to see if it would shed any light on it, but the FR notices just use the same language ("for Government use"), so they weren't very helpful.

I went back to the regulation the rule was implementing (41 CFR 51–5.2(e)), and the language there seems to encompass the broader usage. It states:
 

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Contracting activities procuring services, which have included within them services on the Procurement List, shall require their contractors for the larger service requirement to procure the included Procurement List services from nonprofit agencies authorized by the Committee.

The way I read that, it includes the procurement of any service (which includes services on the Procurement List) and it doesn't have to be (and it does not reference) "for Government use".  It almost seems like that FAR Councils wanted to restrict the implementation to just those contracts where the contractor was providing supplies and services "for Government use" (i.e., direct use), otherwise the use of that language doesn't make sense to me. I mean ultimately, any contract issued by the Federal Government is for "Government use (or benefit)" in the broadest, most inclusive sense.

Any thoughts?

It is an interesting dance of discretion by CO's yet I think you are on the right track on literal application of "for Government use".

https://nib.org/supply/

https://www.abilityone.gov/laws,_regulations_and_policy/documents/Policy 51.542 (final version).pdf

https://acc.army.mil/contractingcenters/acc-nj/CreditCard/PolicyAndSOP/Contractor Use of Mandatory Sources of Supply or Services.pdf

https://www.abilityone.gov/abilityone_program/faqs.html    (Search 52.208-9 on this one)

I think the "for government use" is implied in the 41 CFR text.  If an agency needs services included on the list, and those services are included in a larger procurement for services, the contractor must use the list for the services included on the list.

 

For example, if janitorial services for a government facility in a location is on the list, and a government agency includes those services in a larger procurement for broader services, the contractor will use the list for the janitorial services.  However, the contractor will not be required to use the list for its own facilities in the same location, even though it may require janitorial services in order to comply with cleanliness standards on its other government contracts.

Thanks jjj and C Culham. That's kind of where I was leaning as well. It just seemed like that interpretation would make the clause so narrow in application that I thought maybe I was missing something. I mean how often does the Government rely on contractors to procure services for itself - in essence contracting out its contracting responsibilities? I can't imagine it happens very often and I can't think of a scenario outside of facility maintenance and operation or maybe base ops services - which I suppose could be quite a bit, between GSA and DOD, now that I think about it.

What are your thoughts on this scenario: A prime contractor is awarded a federal contract for services at a very large site featuring multiple buildings. Some of those buildings are owned by the government and some are not. The prime is performing services under a government contract in a building that the government does not lease or own, but is part of the overall "site." Previously, the 2nd tier subcontractor for janitorial services at the site was an AbilityOne contractor. The services are and were on the procurement list. The prime does not perform commercial functions in this particular building, and the federal government badges people, so the government has control over who has access to the building. It is not known to what extent, if any, the federal government manages or supervises the prime's work, but there are fed agency employees at the site. zmust the prime award their janitorial services to an AbilityOne contractor? Must the prime purchase cleaning supplies from an AbilityOne contractor?

My view: if identified in the schedule, or mandated elsewhere in the contract, maybe. If not, no...a prime contractor is not the government.

This question may come up in procurements for cafeteria services, which includes military dining facilities (mess halls). Here the Randolph-Shepard Act comes into play. The COFC has held that if the solicitation is for operation of the cafeteria the RSA applies and the blind vendor does not have to use an Ability One subcontractor to perform the mess attendant services part of the contract. On the other hand, if the solicitation is for mess attendant services, then the award should go to an Ability One contractor if available.

Look up the defn of supplies..