Fara Fasat

Thanks. By the way, in anticipation of the inevitable "have you read ...", I did review the DoD Government Charge Card Guidebook, and other materials at https://www.acq.osd.mil/dpap/pdi/pc/index.html . Nothing seemed to answer this question, although if someone can point to any relevant information I would be glad to review it.

The Government Commercial Purchase Card (P-card) can be used to make micro-purchases (see FAR 13.201 and 13.301). Presumably this means that a government P-card holder can make purchases from a seller online site or portal, as long as the purchase is authorized . Some of these sites require a user to set up an account before making a purchase. Question: can a government buyer set up an account in order to make a purchase from a seller site?

In 2003, OMB issued a memo regarding the use of Part 12 or Part 36 for construction. I'm paraphrasing, but it basically says that even though construction is commercial, Part 12 is inappropriate for construction and Part 36 should be used in most cases. It noted that Part 36 was already consistent with "customary commercial practices in the construction industry."

Thanks Vern. A fresh perspective always helps. I see the expansion in how it lists services in one line (A), and then services covered by the SCA on another (B), but I could be reading too much into it.

Thanks Vern. What you said is very true, although I hadn't focused on those issues. I was more concerned with what seemed to be an expansion of the coverage. Whereas the current coverage is specifically limited to SCA- and DBA-covered services, the new EO applies to all services. While there is no definition of "service" in Part 2, Part 37 covers service contracting, and basically a service contract is for the performance of a task rather than the delivery of supplies. It then lists numerous examples, but it seems to cover just about anything that is not for the delivery of supplies. For the purpose of my question, 37.107 then says the SCA will not apply to all service contracts. So, in addition to the other problems you pointed out, my question is whether the new EO is an expansion on the current minimum wage coverage. I think it is, but it didn't seem to draw much attention. For example, a contract for audit services, advisory and assistance, R&D, architect-engineer, etc would be covered, and every worker on those contracts, including employees working "in connection with" (another undefined term) the contract, would be covered. Same for all other services that are not covered by the SCA. Seems to me a big expansion that has slipped in unnoticed. That's why I'm wondering what others think.

I want to run this by the forum to get a check on my reading of the new Executive Order issued on April 27, requiring federal contractors and subcontractors to pay a minimum wage of $15 per hour to workers on a range of covered contracts for procuring services and construction. It supersedes the 2014 Obama EO that is implemented at FAR Subpart 22.19. That rule only applies to contracts covered by the Service Contract Act (for services) and the Davis Bacon Act (for construction)(see 22.903, "Applicability"). I read the new EO as applying to all contracts for services, including SCA and DBA-covered contracts. This would be an expansion to the current coverage. I base this on section 8 which defines covered contracts as (A) contracts for services or construction, or (B) contracts for services covered by the SCA, or others at (C) and (D). The only other requirement is that it applies to contacts covered by the FLSA, which frankly applies to almost everything. Here's my problem: several law firms have sent out alerts on the new EO, but none of them have noted the expansion that I am reading in it. Since SCA-covered services are a subset of all possible contracts for services, it would seem this is worth a comment. How does anyone here read the coverage of the new EO? Executive Order on Increasing the Minimum Wage for Federal Contractors _ The White House.pdf

Interesting. They got rid of it 25 years ago, and yet it resurfaces only in commercial item contracts.

Glad it helped, although these discussions do often go off on tangents. 🤷‍♂️ I'm still genuinely interested in what a contractor is supposed to comply with in 18 USC 431. Anyone know?

Thanks Vern and Don. Regarding the BAA and TAA certs - I overlooked 52.212-3. I actually keep a separate document with those in it but didn't go back and check it. There are so many bread crumbs to follow when dealing with the FAR that it's easy to forget some, and I did. Here's another thing about 212-3 that's a pain, but what can you do -- the reps and certs in it do not have clause numbers, just the name and text. I added the clause numbers to my reference document to help keep track of what and where. And 212-4(r) - what a mess. Besides the contradictions I pointed out above, there's this: one of the laws listed is 18 U.S.C. 431 relating to officials not to benefit. Basically it says that contracts may not be awarded to members of Congress. I can find no associated clause, or even a section of the FAR that addresses it. And I'm not sure there's anything for a contractor to comply with. It looks like the only people affected are the awarding officer and the member of Congress. So why is it even in 212-4(r)?

Vern - it's not a matter of me being "satisfied." People come here for advice and to learn. If you say something needs special approval, they will accept it. As you well know, much time on this forum is spent in correcting inaccuracies. As for 12.302(c), that addresses tailoring. Nobody is talking about tailoring here. 52.245-1 is already prescribed for CI contracts at 45.107(a)(1)(iii). If a CO inserts it, he or she is not tailoring in violation of 12.302 and does not need a waiver to include it. Don - yes there are. Here are a couple: 52.216-31, Time-And-Materials/Labor-Hour Proposal Requirements -- Commercial Item Acquisition. Nowhere in Part 12 or 52.212-5. The title itself says it applies to CI solicitations. 52.232-31, Invitation to Propose Financing Terms. Nowhere in Part 12 or 52.212-5. Yet it only applies to CI solicitations. The BAA and TAA certificates (52.225-2, 50.225-4, and 52.225-6). The clauses themselves are listed in 52.212-5, but the certificates are not. The prescriptions for the certificates say they go in solicitations that include the clauses, so I would say you have to include them in any CI solicitation that has the BAA or TAA clauses, despite not being listed in Part 12. And what do you make of 52.212-4(r), which goes in all CI contracts? This lists 7 laws that a contractor must comply with. None of the clauses associated with those laws are listed in Part 12. Why just those 7, and why not just list the clauses in Part 12? To make it worse, a couple of them are on the 12.503 list of laws inapplicable to CI contracts, and a couple are not. Even better, the prescriptions for a couple say that they go in contracts other than for commercial items. Putting aside those inconsistencies, I suppose you could say that you don't need a clause to make a contractor comply with a law, you just need to name the law. Yet everything else is implemented with clauses. Otherwise, why not just scrap them all and have one clause that says the contractor must comply with all laws applicable to government acquisitions? If I were to make a list of the clauses that a contractor had to comply with in a CI contract, I would include the clauses associated with those laws. Maybe they're not in Part 12, but they should be on your compliance checklist.

OK. Are you referring to 52.244-6(c)(2), which says the contractor may include other clauses as necessary? The point was simply that including 52.245-1 in a CI subcontract does not seem to require special approval. If it does, then OK, lesson learned. If it doesn't, let's not leave people with the impression it does.

I agree with the above (FP, no GFP, tooling not a deliverable), with one caveat: I don't believe 52.245-1 requires special approval to go in a commercial item contract or subcontract. The prescription at 45.107(a)(1)(iii) states that it shall go in contracts awarded under part 12 where government property is furnished. The clause itself then says (at 52.245-1(b)(3)) that the contractor will insert it in subcontracts under which government property is furnished. It sounds like a straightforward application that doesn't require approval. True, 52.245-1 is not listed in Part 12, but we've seen that there are others scattered throughout the FAR that still go in CI contracts via a separate prescription.

The dust has settled now, and I have completed my review of the applicability of clauses to CI contracts (larger project, not relevant here), so have a couple observations: 1. I missed the 'notwithstanding' in 12.301. I knew it from way back, but got too wrapped up in the 'all contracts' language. My fault. 2. There can be some honest debates over whether some clauses should or should not apply to CI contracts, as evidenced by the discussion over the gratuities clause. For example, the "Brand Name or Equal" clause, 52.211-6, is not listed in 12.301 and therefore not required in CI solicitations or contracts. And yet commercial items are more likely to be identified by a brand name than a non-commercial item, so why not? Maybe there's a good reason for this clause, but there are a whole lot more that make you wonder why they wouldn't be required. 3. The 'notwithstanding' rule was presented earlier in this discussion as so all-encompassing and so easy to understand and apply, that any question deserved to be in the beginner's forum. Yet as with most things in the FAR, it's not so simple. There are some clauses that are nowhere to be found in Part 12 or 52.212-5, yet definitely belong in CI contracts. For example, 52.216-31, "Time-And-Materials/Labor-Hour Proposal Requirements -- Commercial Item Acquisition", is nowhere in Part 12 or 52.212-5. By 12.301(d), we should exclude it, yet the only reason for its existence is a CI contract. Its prescription is at 16.601(f)(3). The FAR matrix doesn't list it in the CI column, although the DAU matrix caught it. There are a couple others like this. The point is, there are some holes in 'notwithstanding,' and it's not easy to find them.

Thank you for the response, 'beginners' comment notwithstanding. 12.301 trumps everything else. Fine, that's the answer. "All" doesn't mean "all." I'm not the only one who thought it might. Makes me wonder whether there are any other general policy statements that override specific prescriptions.

Maybe I'm missing something simple, so feel free to point out my error. I'm trying to figure out whether the Gratuities clause, 52.203-3, goes in commercial item contracts. the prescription says all contracts over the SAT, but it is not listed in 52.212-5 as a mandatory clause for commercial item contracts, and it is not listed as a CI clause in the FAR Matrix I thought I remembered something from a few years ago that said a clause was not applicable to CI contracts unless the prescription specifically said it did. So I checked a couple others, and they are in 212-5 as mandatory for CI contracts, but CI contracts are not called out in the prescription. For example, 52.204-23 (the Kaspersky ban) is listed in 212-5, but the prescription simply says all solicitations and contracts. So is 203-3 just another disconnect in the FAR? Should it be added to 212-5 to be consistent with the "all" prescription? Should the prescription say "except solicitations and contacts for commercial items?