GeoJeff

Vern wrote: "Don has studied the RFO deeply, and the point of his questions was to try to show that the RFO did not really change much of substance. Like previous acquisition reforms it's mostly noise, "a disturbance, especially a random and persistent disturbance, that obscures or reduces the clarity of a signal." I agree with that, although I note the RFO 12.102(a) "...only one source is available..." vice the legacy "...reasonably available..." seems significant, as does the explicit construction as a commercial service business (which I think is silly). Jamaal commented on agencies using FAR and RFO simultaneously. That's really ridiculous and disruptive. RFO Part 12 was issued 08/14/2025 and some agencies still have not deviated. Why not?

That's fascinating, I hadn't realized. I'm with DOI and they have been slow-walking deviations, but they have still issued a few. The Executive Order was dated April 15 and called for results within 180 days, which would have been October 15. RFO model deviations were done by September 30, with Part 2 and 52 done October 28 and version 2 of the Companion Guide dated October 30. I wonder what's going on behind closed doors with DoD/DoW having issued zero deviations? DFARS obviously complicates their compliance, but still.

I think we can ignore GAO's findings, don't you? After all, GAO shouldn't exist. Russ Vought says Government Accountability Office ‘shouldn’t exist’

Vern, I remember that! That language about "routine painting or carpeting..." is mirrored exactly at GSAM 512.203(c): (bold added) (c) Contracting for Construction. The provisions and clauses in FAR 36 and GSAM part 536 address the fundamental aspects of construction contracting. FAR 36 and GSAM part 536 apply well-established commercial principles that are designed to result in an equitable distribution of risk between the Government and its contractors. The contracting officer should consider the following when contemplating a construction acquisition as a commercial purchase— (1) FAR 12, as currently promulgated, should rarely be used for new construction acquisitions or non-routine alteration and repair services. (2) FAR 12 and GSAM part 512 may be used in limited circumstances involving construction contracting, primarily for routine alteration and repair services as well as for the acquisition of commercial construction materials and associated ancillary services. It may be appropriate to use FAR 12 and GSAM part 512 for routine projects such as painting or carpeting, simple hanging of drywall, everyday electrical or plumbing work, and similar noncomplex services, as well as for purchases of commercial construction material and associated ancillary services. (3) Whether a construction acquisition is conducted under FAR 36 or FAR 12, the contracting officer must adhere to the policies of FAR Subpart 22.4. This subpart addresses labor standards for contracts involving construction. Prior to making the determination that a construction acquisition can be conducted as a commercial purchase, the contracting officer should conduct appropriate market research in accordance with FAR 10 and GSAM part 510. (4) Construction contracts in excess of $2,000 must include an applicable Construction Wage Rate Requirements statute wage determination found under the System for Award Management Wage Determinations at https://www.sam.gov. If the construction contract is greater than $30,000, then the SF 1442 should be used in lieu of the SF 1449 and the bonds or alternate payment protection provisions of FAR 28.102-1, 28.102-2 and 28.102-3 apply. (5) Construction contracts awarded as commercial acquisitions should not exceed the prospectus threshold. The prospectus threshold as referenced in section 102-73.35 of the Federal Management Regulation (FMR) is posted at https://www.gsa.gov/annualprospectusthreshold I think that also tracks with the FAR definition of commercial services needing to have "established catalog or market prices." Painting, carpeting, drywall, concrete, asphalt...these are all things that have a market, unit price like per square foot or per cubic yard. Building a new office building, not so much.

AIA A201 is entitled "General Conditions for the Contract of Construction." Section 7 talks about changes, and, to my reading, is actually very similar to the traditional 52.243-4 or -5 arrangement. The "Owner" can issue a "Construction Change Directive" within the general scope of the contract in advance of a mutually agreed upon price impact and the contractor has to perform. There are procedures laid out for how to resolve the dispute, blah blah blah. VERY different than the "mutual agreement of the parties" language at 52.212-4. Sample AIA document here: AIA Document A201-2017 - Sample

52.212-4 can be tailored except as limited by RFO 12.205(b)(1)(ii). As an example, that says you cannot tailor the payment paragraph. So, how do you deal with the inherent conflicts between the commercial payment paragraph and 52.232-5? What about the huge difference in changes? Would you suggest just tailoring RFO 52.212-4(d) changes so that it looks like 52.243-4 or -5?

RFO Part 2 now explicitly defines (at least some) construction as a commercial service. Link to RFO Part 2: FAR Overhaul - Part 2 | Acquisition.GOV Text in question: (2) Services, including construction, of a type 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... (blah blah blah). Setting aside the question of how one might decide which types of projects are commercial and which are not (and I have my ideas about that), it seems there are some fundamental and perhaps irreconcilable differences in standard commercial terms and conditions and federal construction terms and conditions. Changes come immediately to mind. Any thoughts on how the powers that be are going to unscramble this egg, or is this just going to be a regulatory free-for-all while everyone behaves differently?

In Part 43, they deleted 43.000(a), writing "FAR part 43 now applies to contract modifications for orders for supplies or services not otherwise changing the terms of contracts or agreements (e.g., delivery orders under indefinite delivery contracts). This aligns the FAR to practice." That explanation doesn't make sense to me. A delivery order is not a modification. The revised text makes sense, because I always sort of read it as "well, of course that doesn't apply because a delivery order is not a modification." Thoughts?

I'm confused. I thought the NMR applied over $25K? 13 CFR 121.406(d) is clear, yet see FAR 19.102(f)(7) and 52.219-6(d). Is this yet another case of FAR not having "caught up" with an underlying regulation, as is the case with the limitations on subcontracting changes?

Agreed, that is what the regulation says. My original question stems from CAFC's ruling in Digitalis, which seems to imply that if a prospective contractor misses the boat during the synopsis period, he is no longer an "actual or prospective bidder." This seems contrary to the plain language at 5.207( c )(16). Perhaps there is a different answer when using SAP? What about a synopsis that says: "Other prospective contractors may submit a capabilities statement by the closing date of this announcement. All submissions will be evaluated for the sole purpose of determining whether competitive opportunities exist, and the prospective contractor will be advised of the results of the government's evaluation. Late submissions will not be considered. If no submissions are received, the government will proceed with the intended noncompetitive action. An informational copy of the noncompetitive solicitation will be made publicly available IAW FAR 5.102(a) on or after (date), but competitive (quotations/bids/proposals) will not be considered." I'm sure there will be several objections to this. I'm used to rejection.

OK, assume we're using SAP and soliciting a single source. I shall amend my hypothetical synopsis to the following: "(Agency X) intends to solicit a quotation on a single source basis IAW FAR 13.106-1(b)(1)(i) from (company Y) for (product/service Z.) Company Y is the only source reasonably available to fulfill this requirement under the circumstances because (reasons). IAW FAR 5.207(16)(i), all responsible sources may submit a quotation which shall be considered by (Agency X). The request for quotation will be available on or after 01 May 2016." You post that synopsis on 15 April 2016 and let it sit for 15 days. Nobody responds. You prepare your RFQ but don't include evaluation criteria or quotation submission instructions and post it to FBO IAW 5.102(a) on 02 May 2016. Company Y has told you they need a week to put together a price quotation, so you leave the RFQ open for a week, closing 09 May 2016. On 08 May, out of nowhere, company A emails you a quotation. It may or may not (likely not) contain any meaningful information because you haven't included evaluation criteria or quotation submission instructions in the RFQ. The synopsis advised that any quotation submitted "shall be considered by Agency X," and 13.106-2(a)(3) says "all quotations...shall be considered." So the question is - on what basis and/or to what extent are we "considering" this other quotation? We have not provided evaluation criteria suitable for a competitive environment in the RFQ. Must we amend the RFQ to include competitive evaluation criteria and re-release, as Todd Davis suggested yesterday? I think that's certainly a safe way to proceed. Or may this other quotation be "considered" by saying "no thanks?" I have practical reasons for this mental exercise that are systems related. Our procurement system (PRISM) allows one to post the "notice of intent" we've been discussing above to FBO either as a "special notice" or as a "presolicitation notice." As a practical matter, prospective contractors go looking for competitive opportunities by searching for presolicitation notices and combined synopsis/solicitations in FBO, not by reading special notices. When something shows up as a presolicitation, they think it's competitive. PRISM will not allow us to attach a solicitation to a special notice - a solicitation must first be announced via a presolicitation notice or it will not "release" to FBO. So we're stuck between a rock and a hard place; when we use the special notice as we've been trained to do, and which seems more intuitive to vendors, we then can't post the solicitation IAW FAR 5.102(a). If we use the presolicitation notice, prospective contractors often don't notice the presolicitation text and think they have a competitive opportunity, so we get junky quotes that aren't responsive and are then bound to "consider" them in some way. This is compounded by the fact that PRISM uses a proprietary portal called FedConnect, and the FBO announcement directs prospective contractors to FedConnect "for more information about this opportunity." When they get there, if they register with FedConnect, there is a "quote" button, where they can enter a price and hit submit. And bless their hearts, some specialists at my agency try to comply with 5.102(a) by first posting a special notice that says "notice of intent to award...," then after that closes, they post essentially a blank presolicitation notice that references the previous special notice so they can get the RFQ in FBO. If the vendor notices that, he's got to work really hard to find the referenced notice of intent, so he legitimately thinks there is a competitive RFQ available to him, and with no stated evaluation criteria, it looks like low price gets the job. I'm looking for a practical solution to these problems.

Yup, that's what it says; the plain language is plain. And if you're using 6.302-1, 5.207( c )(16)(ii) requires a statement "...all responsible sources may submit a capability statement, proposal, or quotation which shall be considered by the agency." Regardless, for the purposes of framing this question, I think the question regarding timelines and appropriate action is largely the same. Assume the synopsis is posted 4/15/16, and says: "Agency X intends to (negotiate on a sole source basis with/award a noncompetitive contract to) in accordance with FAR (whichever applies) company Y for service Z because (they are great.) Any other interested party may submit a capability statement by the closing date of this announcement, which is 5/1/16, which shall be considered by the agency for the purposes of determining whether to hold a competition or proceed with a noncompetitive action." 5/1/16 comes and goes and nobody responds. 5/2/16 the agency releases the solicitation. For the purposes of this question, it doesn't really matter whether it's posted or not. 5/5/16 some other company finds the solicitation, either on FBO if it was posted in accordance with 5.102(a), or via email from the CO if they just heard about it through the grapevine. They review it and respond with the usual "hey, we can do that!" The language in Digitalis would have me believe that it would be appropriate to tell this other company that they are too late and has missed its chance. Digitalis: "We therefore hold that in order to be an actual or prospective bidder, a party must submit a statement of capability during the prescribed period."

Agreed, but I'm not sure that's relevant to the instant discussion. 5.102(a)(1) says in relevant part: "Except as provided in paragraph (a)(5) of this section, the contracting officer must make available through the GPE solicitations synopsized through the GPE...", which would apply equally to a noncompetitive 13.106-1, $26K action and a sole-source 6.302-1, $26M action. I agree with Don that the plain language is, well, quite plain...however Digitalis calls into question what the purpose of posting a noncompetitive/sole source solicitation would be.

Don, I knew you'd say that. Have you read Digitalis Education Solutions, Inc. v US, CAFC 2011-5079, 01/04/2012? In Digitalis, CAFC wrote: Say you have a rock-solid noncompetitive justification. You post a notice of intent for a reasonable period of time and there is a deadline for other potential sources to submit capabilities statements, and nobody does. You prepare the solicitation without competitive evaluation criteria, email a copy to the intended awardee, and post a copy to FBO because of what FAR 5.102(a) says. An hour before the quotation submission deadline, you receive a competitive quotation from another company out of nowhere. What should you do?

Apologies for resurrecting an old topic, but I have a specific situation related to this that has me thinking in circles. I can't formulate a logical response to a client about an intended acquisition strategy, though admittedly not everything we do is logical. My agency has a multiple-award GSA BPA with three resellers of Hewlett-Packard (HP) LAN switches and related equipment. This was awarded competitively. The three vendors are given fair opportunity to compete for individual calls. We now have a need to purchase a moderate quantity of part number J9150A, which is (for the purpose of this discussion) a plug-in module for a LAN switch. The purchase will be on the order of 30 units, and we estimate that to be on the order of $21,000.00. The LAN switches these modules will be plugged into are made in Mexico. Assume for the purposes of this discussion that the modules themselves are made in China (the truth is more complicated, but does not further this discussion). Part number J9150A is available through GSA Advantage, but (according to our BPA holders and HP direct) is "TAA compliant" only if assembled at point-of-sale with a switch. The logic is, the switch is made in Mexico and is expensive, whereas the module is made in China and is cheap; the unit is considered made in Mexico as a whole and is therefore TAA compliant. Our BPA holders will not accept a call against our GSA BPA for the module itself, citing GSA's website at: http://www.gsa.gov/MASDESKTOP/section3_10.html In relevant part: "All Schedule products and services must come from the U.S. or a designated country." At least one of our BPA holders also has a NASA SEWP contract, and will accept an order for the modules that way. NASA SEWP: https://support.sewp.nasa.gov/link/portal/15028/15032/Article/283/Are-SEWP-products-BAA-TAA-Buy-American-Act-Trade-Agreement-Act-compliant In relevant part: "...the TAA is applicable to all SEWP Contracts. In accordance with the TAA, only U.S.-made or designated country end products shall be purchased under SEWP contracts unless an exception exists and is documented by the Contracting Officer..." Specific questions: 1. Both the GSA contract and the SEWP contract contain the clause at 52.225-5, so why the seemingly different treatment between GSA and NASA? GSA says all products must come from the US or a designated country, whereas NASA says "...unless an exception exists..." The exception here would be that the product is made in China and nowhere else. FAR 25.403( c )( 1 ). 2. The modules are "information technology that is a commercial item," FAR 25.103( e ), and therefore the Buy American Act does not apply. If I were to proceed on the open-market, and justify the brand-name-only purchase of these parts, I could buy the modules made in China. Recall the estimated value is $21,000.00. 52.225-1 does not apply (see 25.1101( a )( 1 )( ii )). If the value of this purchase were greater than $25K but less than $204K, 52.225-3 would not apply (see 25.1101( B )( 1 )( i )( b )). If neither 52.225-1 nor 52.225-3 apply, then neither of the corresponding provisions at 52.225-2 or 52.225-4 would apply either; this means contractors would not even be required to inform me of the country of origin of these products at all. Correct? 3. If the value of this purchase were greater than $204K, 52.225-5 would apply IAW 25.1101( c )( 1 ). Don answered that above, when he wrote: "The inclusion of FAR 52.225-5 is not contingent on whether the BAA applies. The clause prescription is clear." Like Whynot, I have also been tripped up by 25.402( a )( 1 ), where on first reading it seems that the TAA waives the BAA, so if the BAA doesn't apply, then there is nothing to waive. However, I note 25.402( a )( 1 ) says that the TAA "...provides the authority for the President to waive the Buy American statue and other discriminatory provisions;" the BAA may not apply, but other discriminatory provisions may exist. The operative restriction at 25.403( c )( 1 ) is: "...acquire only U.S.-made or designated country end products or U.S. or designated country services, unless offers for such end products or services are either not received or are insufficient to fulfill the requirements..." If all offers were for modules made in China, then I purchase the modules made in China. If one offer is for modules made in either the US or a designated county, then I cannot purchase the modules made in China. That's the "discriminatory provision." Correct? 4. Why is it that I can purchase up to $204K worth of information technology commercial items made in China on the open market, and nobody would even know or care, but I (apparently) can't buy them through GSA? 5. How would you all recommend proceeding? I'm leaning towards an open-market purchase order and calling it a day. My head hurts. Thanks,