Vern Edwards Posted September 17, 2022 Report Share Posted September 17, 2022 2 hours ago, C Culham said: What has not been stated throughout this whole thread is for what reason or purpose the contract could not be a commercial item contract. Not one reason why the contract as a commercial item contract is a strategy that would not be in the best interests of the Government and is addressed in the FAR, law (statute or case law), Executive order or other regulation, that the strategy, is not a permissible exercise of authority. Emphasis added. Note that the phase "commercial item" is no longer in official use. We're talking about commercial product or commercial service. @C CulhamOkay, I'll take a shot, even though I know that once you have made up your mind and committed yourself to a position, as you have in this case, you will never change it. I am really writing this for others. The reason the acquisition cannot be for a commercial service contract is because the work, as described by the OP, fits the FAR definition of construction. Here is the definition of construction from FAR 2.101, which applies throughout the FAR (see FAR 1.108(a) and FAR 2.000): Quote Construction means construction, alteration, or repair (including dredging, excavating, and painting) of buildings, structures, or other real property. For purposes of this definition, the terms "buildings, structures, or other real property" include, but are not limited to, improvements of all types, such as bridges, dams, plants, highways, parkways, streets, subways, tunnels, sewers, mains, power lines, cemeteries, pumping stations, railways, airport facilities, terminals, docks, piers, wharves, ways, lighthouses, buoys, jetties, breakwaters, levees, canals, and channels. Construction does not include the manufacture, production, furnishing, construction, alteration, repair, processing, or assembling of vessels, aircraft, or other kinds of personal property (except that for use in subpart 22.5, see the definition at 22.502). A $500,000 project to replace weathered doors at a military installation (remove old doors and install new ones) would clearly require alteration and/or repair of real property. So it meets the FAR definition of construction. Is construction a commercial service? See the definition in FAR 2.101. FAR Part 12 does not mention construction as a commercial service. FAR Part 36 says nothing about construction being a commercial service. FAR does not define service, but it does define service contract at FAR 37.101, and that definition includes "Maintenance, overhaul, repair, servicing, rehabilitation, salvage, modernization, or modification of supplies, systems, or equipment," [emphasis added] but not of real property. Is the agency buying commercial doors, and is the project the installation of a commercial product and thus a commercial service? I don't know. The OP did not describe the doors in detail. I don't know if the project involves doors of a single type and description or various kinds of doors. I don't know if they are special-order of commercial off-the-shelf. Given that the doors are for a military installation, I presume that they are heavy-duty doors, not the kind that go into ordinary houses. I don't know if the contractor will have to alter any door frames in order to install the new doors. I don't know what kinds of equipment the contractor will require. However, FAR 2.101 defines a commercial product in part as follows: Quote (1) A product, other than real property, that is of a type customarily used by the general public or by nongovernmental entities for purposes other than governmental purposes, and– (i) Has been sold, leased, or licensed to the general public; or (ii) Has been offered for sale, lease, or license to the general public... I wonder if the doors in question are customarily used by the general public. How much tailoring of FAR 52.212-4 would be necessary in order to protect the government's interests. At what point would the CO have to do so much tailoring in order to protect the government's interests that the advantages of using FAR Part 12 would be lost? Would the CO need to add coverage for bonds and liquidated damages, or should the CO forego such protections? What kinds of laborers would be needed? Would the Service Contract Act or the Davis-Bacon Act apply? What would your friends at the Department of Labor say? FAR 52.212-5 makes provision for including the SCA in contracts for commercial services, but not Davis-Bacon. What does that tell you? Would SCA wage determinations be appropriate for a $500,000 construction job. See Voith Hydro, Inc., B-401771, November 13, 2009, in which the protester complained that an acquisition being conducted under FAR Part 15 as construction should have been acquired under FAR Part 12: Quote The record reflects that the agency also contacted a representative of the U.S. Department Labor (DOL) to obtain DOL's views as to whether the provisions of the Service Contract Act, 41 U.S.C. sections 351–358 (2006), which generally covers services or maintenance work, or the Davis Bacon Act, 40 U.S.C. sections 276a–276a–7 (2006), which generally covers construction work, including alteration and repair work, were applicable to the solicitation. AR (B–401244.2) at 9; see Dismantlement and Envtl. Mgmt. Co., B–257632, Oct. 24, 1994, 94–2 CPD para. 151 at 3 n.3. The DOL representative found that RFP –0017 “did contain construction work and that the laborers involved would be covered under the Davis–Bacon Act, not the Service Contract Act.” AR (B–401244.2) at 9. The agency points out that it estimates that “in excess of [DELETED] labor hours” of “onsite” work will be required to complete the work required under RFP –0017, and that although certain service work will be required, “these services were not the majority of the work and were not severable from the work because the contractor that designs the systems must provide training on that system.” Id. The agency also points out that the FAR sect. 2.101 defines “construction” in relevant part as “[c]onstruction, alteration, or repair (including dredging, excavating, and painting) of buildings, structures, or other real property,” and that “[f]or purposes of this definition, the terms ‘buildings, structures, or other real property’ include, but are not limited to, improvements of all types, such as ... dams [and] plants.” FAR sect. 2.101. The agency argues that in its view the dam, its power plant, and equipment installed therein, such as the generators and excitation system, fall within this definition of real property, and that such a view is consistent with the “Department of the Interior Real Property Financial Management Policy Guide,” which provides that “[r]eal property is defined as any interest in land, together with improvements, structures and fixtures, appurtenances, and improvements of any kind located thereon,” and specifically includes electrical utility systems and hydroelectric power generation within this definition. AR (B–401244.2) at 5; Tab G, Department of the Interior Real Property Financial Management Policy Guide, at 5. FASA and FAR Part 12 were not written with construction in mind. Construction is defined in FAR and does not constitute a commercial service. Using Part 12 to buy construction would create more issues and problems than it would solve, except for very minor jobs, such as I mentioned in my last post. I could go on, but I think I have made my point. Readers can take it or leave it. But, Carl, we all know that you will stand fast and to the death. So I'm not really writing for you. In any case, after more than 28 years the policy makers have not seen fit to clear things up, and agencies will do as they like. Quote Link to comment Share on other sites More sharing options...
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