Don Mansfield

If by "price back-ups" you mean a cost beakdown, why wouldn't identification of FCCOM in the cost breakdown be sufficient to meet the standard for proposing FCCOM pursuant to FAR 52.215-16? If "price back-ups" means something else, what does it mean?

The agency interpretation makes no sense.

illzoni, On the FARSite, the programmers insert the language of DoD class deviations into the FAR and DFARS. These are in blue font and are not actually contained in the official FAR and DFARS. They are just there to provide a heads up to DoD personnel (the FARSite is managed by the Air Force).

That would only matter if the award were set aside for small business.

Yes, I would. Commercial items are a subset of nondevelopmental items the way the term is defined in the statute. However, under the FAR they are distinct sets--the only overlap being definition (8) of "commercial item". Note that definition (8) of "commercial item" comes from the statute, too (41 U.S.C. 103), too. As such, I don't think the FAR Council could have just adopted the stautory definition of "nondevelopmental item" without causing a great deal of confusion. You would have had the definition of "nondevelopmental item" saying that commercial items were a subset of NDIs, and the definition of "commercial item" saying that a subset of NDIs are commercial items. A Venn diagram would have been impossible.

RYE, In Government contracts, the Government has an implied duty to cooperate and not hinder performance of the contractor. I don't know if this applies to your situation, but you may want to do some research on the topic. A Google search of "implied duty to cooperate and not hinder performance" will yield some good information.

No, FAR part 12 is not used when dealing with NDIs, unless the NDI meets definition (8) of "commercial item" at FAR 2.101: There are no special regulations that deal with acquisitions of NDIs that are not commercial items.

Contractors are in the best position to answer that question, and I think they would say that doing away with the BAA/TAA rules would result in lower costs and faster deliveries.

Whynot, The inclusion of FAR 52.225-5 is not contingent on whether the BAA applies. The clause prescription is clear. The second condition: "and the agency has determined that the restrictions of the Buy American statute are not applicable to U.S.-made end products" is determinative of whether you should use that particular FAR clause, not whether the TAA applies. If an agency determined that the restrictions of the BAA are applicable to U.S.-made end products, then they would have to use their own clause, not the FAR clause. You're getting tripped up by FAR 25.402( a )(1).

If the acquisition were subject to the [World Trade Organization] WTO [Agreement on Government Procurement] GPA, then the purchase restriction at FAR 25.403( c ) would still apply. If you are non-DoD, see the clause prescription at FAR 25.1101( c ).

TippHill, Not this year.

Which FAR supplement are you under?

aordway, You wrote: "There are countless clauses whose prescription say "include in all solicitations and contracts for the acquisition of services"." Can you give an example of a prescription like this?

I see. So what specific change would you propose? What specific words would you add to which specific sections? BTW, what agency do you work for (if you don't mind saying)?

I assume that you are clear on number 1 and 2? As far as 3, why should the FAR make that clarification? What problem would it solve?

No problem. BTW, what would be the title of FAR part 20? Animal Rights?

metteec, A unilateral purchase order is an offer to enter into a unilateral contract. When the offeree takes "substantial and definite action" in reliance on the offer, the law limits the offeror's ability to revoke its offer. The Board refers to this contractual relationship as an "option contract". Similar to options you may see in Government contracts, there is no obligation on the part of the offeree to perform. The offeree still has the right to accept or reject the offer. ji20874's response to Retreadfed demonstrated his ignorance of this fact (although he would claim that he knew it but it wasn't relevant or too academic, etc.). An "option contract" becomes a contract for "purchase and sale" when the offeree accepts the offer. In the case of a unilateral purchase order, the offeree indicates acceptance by furnishing the supplies or services ordered or by proceeding with the work to the point where substantial performance has occurred. From the Comptech decision: Note that "substantial performance" does not mean that the offeree merely started work. It means that they fulfilled the contract, for the most part. It's an alternative to the perfect tender rule. Here's a decent explanation of the term:

ji20874, I can agree with what the FAR says, just not the garbage that you wrote.

If you keep making questionable assertions, I'm going to continue to challenge you. Get used to it. If you prefer to be anti-intellectual, then don't respond to me. In either case, you really need to stop with the whining. There you go with your straw man fallacy again. I did not assert that a contract exists when a purchase order is issued. I showed that the a purchase order was a "contract" as defined by the FAR. I don't have a problem with FAR 13.004( a ), just your bastardization of it. You wrote that a purchase order "becomes" a contract when it is accepted. FAR 13.004( a ) doesn't say that. It says a contract is established when the supplier accepts the offer. I don't think it's accurate to say that an offer "becomes" a contract. An offer is a necessary element to contract formation, but I wouldn't say that an offer "becomes" a contract. I would expect more from someone who thinks the nuance between "consistent" and "not inconsistent" is significant. That's wrong and it contradicts FAR 13.004( b ), which states: "Starting performance" does not constitute "substantial performance", nor would "starting performance" impose an obligation on the offeree to perform. Partial performance would be deemed to create an "option contract", which would limit the Government's ability to revoke its offer (purchase order). However, the offeree would still have the right to accept or reject the offer. From Comptech Corp., ASBCA 55526, 2008 WL 4628786 (Oct. 1, 2008): Get it, ji? Starting performance does not obligate the offeree, as you have asserted. Further, the issuance of a purchase order can result in a contract before acceptance. Try not to get upset.

ji20874, Is a unilateral purchase order a unilateral contract? Yes or no.

Hopefully, the original poster or any other reader do not have such an understanding, because they would be wrong. The FAR 2.101 definition of "contract" clearly includes both bilateral and unilateral purchase orders: I would prefer that the original poster or any other reader better understand that a unilateral purchase order is an offer to enter into a unilateral contract. A unilateral contract is defined as: That would make for a very good discussion. If the original poster or other readers are interested in further reading, see Comptech Corp., ASBCA 55526, 2008 WL 4628786 (Oct. 1, 2008).

It actually does. See FAR 16.501-2( c ): This reinforces your distinction between pricing arrangements and delivery arrangements.

How did they accept the purchase order? Did they sign it?

metteec, FFUP describes a pricing arrangement. IDIQ describes a delivery/quantity arrangement. Two different aspects of a contract. Read this blog entry. Your question is analogous to asking "What's the difference between a red car and a foreign car?"

Oh, I thought you had posted that line item as an example of a fixed-unit-price contract. I guess I was wrong.