C Culham

I would consult legal counsel. I did some research and it would appear that it is forever with regard to the current contract and any future contracts with the Feds. I say this as what I have found implies that with the clause an entity would revamp their inspection program to meet the clause requirements. I do realize that any entity that does both Fed and non-Fed contracts could do the process change for only Fed contracts. A business decision. Here is one document I found. But again if you can not find something explicit in your own research (other comments here included) I would suggest legal counsel is your best route. https://www.millerchevalier.com/publication/final-rule-expands-reporting-requirements-counterfeit-parts-and-nonconforming-items

I am too literal but in consideration of the wording of 41 U.S.C. § 4106(c) (below) I see nothing regarding a call against a BPA that is established via fair opportunity as TO/DO as I proposed in my example. And again I lean towards the Logan decision as I would argue that the fair opportunity in setting up the BPA has accomplished statutory intent. Conclusion on may part is that using fair opportunity to place calls against BPA's is not statutorily required and flies in the face of the intent that the Rewrite will only carry that which is statutorily required. (c)Multiple Award Contracts.—When multiple contracts are awarded under section 4103(d)(1)(B) or 4105(f) of this title, all contractors awarded the contracts shall be provided a fair opportunity to be considered, pursuant to procedures set forth in the contracts, for each task or delivery order in excess of the micro-purchase threshold under section 1902 of this title that is to be issued under any of the contracts, unless— (1) the executive agency’s need for the services or property ordered is of such unusual urgency that providing the opportunity to all of those contractors would result in unacceptable delays in fulfilling that need; (2) only one of those contractors is capable of providing the services or property required at the level of quality required because the services or property ordered are unique or highly specialized; (3) the task or delivery order should be issued on a sole-source basis in the interest of economy and efficiency because it is a logical follow-on to a task or delivery order already issued on a competitive basis; or (4) it is necessary to place the order with a particular contractor to satisfy a minimum guarantee.

Thank you! I am going to have to research to see if the wording is statutorily supported.

Cheating to save me a read, do you mind a citation please?

It might be flawed another way. Just because it is a commercial transaction does not mean FAR Part 15 was not used. I did not take time to rummage through everything on SAM.gov today but I have to guess there are many, if not most for services, FAR Part 12 actions where FAR Part 15 procedures are used either veiled or actually.

My thoughts. Why can't a BPA stipulate "quantity" and a "delivery or performance schedule."? Afterall a TO/DO with a NTE is done otherwise. To GAO, they seem conflicted. Per Logan (see link below) you can achieve competition in establishing BPA's where calls after do not need to be. So would not a fair opportunity effort accomplish the same or in otherwords my example. https://www.gao.gov/assets/b-294974.6.pdf

Yes. The simple view, many WIFCON threads that lament folks being risk adverse, but that risk is failure of legal sufficiency not of any specific process for a procurement demonstrating that it would be successful. Yes, a spin on the aforementioned comment. Nope, as it is still being driven by a political governance system as opposed to, as the author notes, a technocratic system. I think I have asked before in WIFCON but either way and posed a little differently are there any industry folks (not lawyers) sitting in on the whole rewrite effort, from the FAR revamp to practitioner albums, etc?

So how about this? Multiple award IDIQ's awarded. Now agency wants set up a BPA with one or more to the awardees. Is not the agency required to do fair opportunity to do so? Reference - Rewrite at 16.507-2(a)(1). Result tracks like this 1) Multiple award IDIQ awarded via competition 2) BPA(s) awarded via TO/DO's to those chosen 3) Calls issued against the BPA(s) as needs arrive. A "D" contract award to a "F" TO/DO as a BPA to a "P" call (FAR 4.201 Table 4-1). Seems to meet statutory intent to me.

Hmmmm.... https://www.whitehouse.gov/wp-content/uploads/2025/09/M-25-35-Status-of-Agency-Operations.pdf I wouldn't sign a letter with the suggested wording either. People need to think!

Yes and based on my experience I suggest you seek legal counsel. The quick of it is the teaming agreement matters and requires scrutiny to ensure that "affiliation" is not present to the extent that the small business is not considered by affiliation a large business. The place to start is 13 CFR 121.103. The risks? Protest by another entity who believes there is affiliation and whether the prime SB meets the subcontracting limitation (FAR 52.219-14) as determined at award and during performance.

How about this (with some emphasis added).... "The Boeing Co., St. Louis, Missouri, has been awarded a $278,000,000 fixed-price incentive, cost-plus-fixed-fee delivery order (SPRPA1-22-D-0001) against a 15-year basic ordering agreement (SPRAP1-14-D-002U) for the procurement of F/A-18 aircraft consumable parts. This was a sole-source acquisition using justification 10 U.S. Code 2304 (c)(1), as stated in Federal Acquisition Regulation 6.302-1. This is a five-year base contract with one five-year option period. The performance completion date is Aug. 8, 2027. Using military service is Navy. Type of appropriation is fiscal 2022 through 2027 defense working capital funds. The contracting activity is the Defense Logistics Agency Aviation, Philadelphia, Pennsylvania." Ref: https://www.war.gov/News/Contracts/Contract/Article/3122316/ So by my read 22-D-0001 is a Indefinite Delivery Contract (see "D" at FAR 4.1603) written against an existing BOA for aircraft parts. A Requirements Contract is a type of Indefinite Delivery Contract (Ref. FAR 16.5). 0001 was a undefinitized contract yet had Delivery Order SPRPA1-24-F-0051 issued against it. Remember "F" means task/delivery order (Ref. FAR 4.1603). The delivery order (why it is not a task order God only knows) appears to now be modified by modification number 4 to add additional parts and funding for same. Or stated another way as we generally understand case law a modification to contract issued against a contract that was issued against a BOA. Makes one wonder when definitization will take place? And I am not sure but this seems to relate...... https://sam.gov/opp/48e1e174757147fd8e00ce589e751375/view

Thank you! I agree in both cases a good starting point. As I understand more about AI it would seem "Prompt" wording is important and output can be biased by the prompt wording. Specific to my quick review of both results it would seem output is biased by what is already out there which in my view is not necessarily good. Again please understand my review was quick. Just a few of thoughts - Why didn't combined synopsis/solicitation creep in? Uniform Contract Format seems to be followed. I know the debate on its use but still it creeped in for both. "Fair opportunity"? How did it creep in in the second effort especially when there was no mention in the prompt of FAR part 16? Evaluation responses in both cases seem more like FAR part 15 than FAR part 13 and/or 12 making me wonder again about the how the prompt does or does not limit the result. If I really spent some time I would probably find more but these were the quick ones. Conclusion on my part - Yes AI is a tool of some value but one should not depend on its result completely. I question the ability of AI to sort out what is right by the FAR, what is not, and what is questionable. Thanks again, much appreciated.

I am curious. I am going to guess that your prompt was a for a quick demostration. In looking at the upload here is my first thought after spending about 5 minutes looking at the document. Why was not your prompt more like this and if it was what would the result be? Emphasis added noting that "commercial" seems to be a key element of the exercise example. Likewise having now experience in such an exercise on use of something like "Claude" my wording may be off but I hope you get the thought process. "PROMPT: You are an 1102 #contracting officer well versed in the procurement of high-volume commercial laboratory supplies. Prepare a FAR 13.303 Blanket Purchase Agreement following FAR part 12 for purchase of consumables like personal protective equipment, cleaning supplies, containers (bottles, jars, jugs, flasks, tubes, vials), dispensers, pipette tips, chemical tests, etc......"

Or cancelled or otherwise incorporated into??????????? "DCMA Instruction 2101 Product Acceptance and Proper Payments __________________________________________________________________ Office of Primary Responsibility Product Acceptance and Proper Payments Capability \Effective: February 14, 2019 Releasability: Cleared for public release New Issuance Incorporates and Cancels: DCMA-INST 102, “Progress Payments Based On Cost,” August 20, 2013, as amended DCMA-INST 106, “Public Vouchers,” July 31, 2013, as amended Etc, Etc, Etc" https://www.dcma.mil/Portals/31/Documents/CIG/DCMA-INST-2101V508C_03162023.pdf?ver=yzaXj5tLPt399jogTDy3xQ%3D%3D

Agreed but I would suggest that the departure from uniform and possilbly consistent started the day the FAR was originally published and the departure grew through to today. I think a cruise of solicitation packages found on SAM.gov would support my view. I also agree that the Federal government contracting case law is significant and would support use of something like a variation in estimated quantity use as being consistent. But back to the original thoughts of this thread as construction being commercial is there not significant case law with regard to AIA and UCC supported contracting terms and conditions? All begging the question as to whether Federal contracting should be unique? I say yes circling back to my statement that the intent of the FAR and its promotion of uniform and consistent acquisition policies is to fulfill the publics interest and a nationalistic view of mission accomplishment. And the statutes while lynch pin to this ideal, the FAR and its content beyond the statutes is needed to further promote the ideal. The rewrite is necessary but I would agree whole heartedly that it is headed in the wrong direction.

I think there is a missing link. The tradition of experiential learning where CO's/1102's actually got up from behind the desk and visited job sites of all kinds to see and understand their contracts and the relationships they did or did not form.

No legalistic intent. Again borrowing for discussions elsewhere in Forum. A relational intent of the parties where each party gives to the other something to change the contracts original intent. And as a relational intent the parties are committing to not go back on the deal but it not a guarantee of possible legal challenge.

Do you mean policies or the procedures? It seems this is what needs to be sorted out. Remember my posts have attempted to put it all in perspective. Its seems all want to morph to the 800 pound gorilla construction service acquisitions. I agree there is huge difference between building a shed and a bomb disposal facility. My intent is to pose that it makes entire sense from my view that using say FAR Part 12 and their companion procedures (subpart 13.5) can make a lot of sense for a shed or better yet someting estimated up to $7.5 million. I would question whether there is consistency now with regard to process and procedures being used to acquire and adminsiter construction service contracts NOW!

Of sorts a dang good question. Is it really an attempt to "cut corners" or exercise the use of procedures that might quicken the acquistion? I spent a little time refreshing my brain with regard to FAR Part 36 and then the FAR Part 36 "Deviation". Using the Deviation it appears that none of the "must" clauses conflict with FAR 52.212-4 so inserting into a commercial construction service contract is plausible. Nothing prevents the tailoring of the Changes paragraph in clause 52.212-4 if commercial practice demonstrates that limiting changes to a unilateral right exists. I think there is a suggestion that limiting to a unilateral rights does exist in the commercial market. Then there is the "Payment" paragraph that has been discussed. But are progress payments allowed by the wording of the FAR and the use of 52.232-5 a "payment" or a form of contract financing allowed by the FAR? Me thinks the latter and again if a financing payment I see nothing in the FAR Part 12 Deviation that would prevent contract financing and one might conclude it is encouraged (Ref. FAR 12.108). So my quickly researched and arrived at conclusion spins back to your question rephrased - What is gained by calling construction services commercial? The gain seems to be the ability to utilize simplified acquisition procedures which by implication suggests a more expedited process for the acquisition of construction services up to $7.5 million.

This attempt may be to simplistic but here you go. First, what does the Federal government construct that is not constructed or otherwise offered and sold competitively in substantial quantities in the commercial marketplace based on established catalog or market prices for specific tasks performed or specific outcomes to be achieved and under standard commercial terms and conditions? One can imagine catalog prices ( I provided an example in a previous post - pole buildings) and I believe one can imagine market prices or in other words construction services sold in a specific market. I therefore think there are market prices for almost anything that is constructed. My conclusion is what the Federal government constructs can be a commercial service almost all the time. Or in other words what out there does the Federal government seek as construction services that is not already provided in the commercial market place? I do not think my experiece is limited and I have a hard time imagining what it might be! The push pull then becomes the fact that Federal government construction service acquisition is not only intended to achieve a specific end result (construct this or that) but is must fulfill the publics interest and a nationalistic view of mission accomplishment. This inherent difference suggests something more important than why say Carl needs construction services and why the Federal government has a need to handle construction services in some cases a little differently. I believe this difference is key. As I shared in my first post and has been repeated specifically or implied market research is the key. So I am a subtle distraction from the rest, I would do it, but when I do my reasoning is going to be sound. And if I was not going to do it I would not flinch at getting higher level approval and in my view the highler level better be ready to react quickly for the puclic interest and mission accomplishment.

My first inclination, IF I were still a CO, would be to see how others have already unscrambled the egg. One specific example and one anecdotal one. The specific would be to take a a stroll SAM.gov Contract Opportunities and look at construction solicitations. I did a quick search before before posting this and the very first hit was a "construction services" effort that was initially solicited on a Standard Form 1449. I looked no further to see how they unscrambled the egg but with interest noted that the solicitation had been amended 7 seven times with some being an effort to make it look more like FAR part 36. This said out of the 6,411 hits I am guessing there were several other examples. Anecdotally, back in the day, and using guidance issued by OFPP I accomplished a couple of construction projects as commercial services. One was a pole barn that was in truth built to house a couple of wildand fire engines. It was a success and a marrying, just as Don Mansfield suggests, FAR and the tailoring of commercial practices. In the marrying there was internal push back and the changes clause matter was one area. But I will pose this, as the subject is somewhat fresh in my mind based on another discussion thread in WIFCON. The few efforts that were accomplished were in my view and by my effort as a CO relational contract experiences and not transactional. Would these few efforts fit every constuction service I ever did as a CO, probably not, with market research being very key. And market research would be very key today.

@Gareth Hyndman In a quick and simple response to all your questions I think paragraph (d) of 52.212 -4 answers them all. What do your think?

My comments here may sound counter to what I previously posted but here goes anyways. Vern beat me to the punch regarding USACE partnering which I was involved with formally during my few years of tenure with USACE. I always found it to be "interesting" from the view point that I always felt that Federal contracting was relational already so why have partnering. Why? The guiding principles of the Federal Acquisition System - FAR 1.102. In my practice I, for the most part, tried to keep the guiding principle ideal in all my interaction with those that wanted to do business with the Federal government. I agree the realtional ideal gets lost quickly from say FAR part 2 and beyond. Again why? Like Vern implies to an extent the ideal gets lost from a misunderstanding of intent by many. I do not limit it to just CO's and PM's. I would offer that most of upper level management has no feeling of the ideal and the likes of many that educate the workforce along with yes the contractor in many cases. I offer my experiences with the aforementioned termination for default as one very quick example where management and program offices demanded a termination for default only to have such effort converted by the courts to termination for convenience. Or in other words a view of transactional by those players when in truth I would be trying my best to convince those demanding that the whole of the effort was relational. The picking of which of the 19th Century statutes is tricky. I for one feel that there is necessity to foster social and economic policy. However I believe it has gone haywire because Congress has taken the social and economic to the outer limits due to special interests and their own misunderstanding of what Federal acquisition should look like. And not to be forgotten is the individual CO who inserts their own values, motivations and biases into their application the bureaucratic regulation called. FAR. The rewrite inclusive the "buying guides" is not going to solve any of this as I agree with Vern regarding a decent professional education program that uses as its base the ideal of guiding principles which by the way have been massaged in the rewirte but essentially remian the same. I do wonder if the 30 agencies that have adopted the "deviation" for FAR part 1 really have any idea of what they have adopted!

Oh I don't know....... Could it be that the FAR is as inconsistent as those that apply it in reality as "will" by example is not defined. Application of any of the words during the whole acquisition process seems to enjoy what happens at application when a solicitation/contract hits the streets. Reference FAR 52.202-1(b) or in other words just modal verbs. And tongue in check for @WifWaf is it must, shall, or may take note?

My experience is dated but I would tend to agree with you on plastic versus paper. Along with the fact that plastic has created its own internal snowball of internal oversight. Its use as the ideal fix for "Just in Time" purchasing and reducing the acquisition workforce got caught up in the bureaucratic BS. And yes I mean BS in some cases. I think you raise a valid point wherein in my view the increase in the micropurchase threshold might just require the "reinvention" of the series GS-1105. My thoughts do not mean I am not in favor of the increase to the micropurchase threshold only that waving the magic wand to do so needs to come with critical thinking of what now with its increase. In my reading of all the recommendations regarding the increase I see nothing that "this" also needs to be done too, with the "this" being that a well planned strategy needs to come with the increase. But then that gets right back into the 360 of creating some mind boggling bureaucratic mess that hamstrings it unless it is really well thought out.