I'm a Contracting Officer who is relatively new to my current departmental contracting office. I performed all of the normal source selection procedures and signed a contractor's standard commercial agreement for the contractor to provide commercial services for over $600,000. I am told by a contemporary in the office that it is not necessary for me to prepare a SF 1449, Order for Commercial Items with FAR Part 12 clauses because the contractor's agreement will suffice. This seems highly unusual for a contracting instrument of this dollar amount. Please provide your feedback. Thanks.

By Anonymous on Thursday, April 18, 2002 - 03:47 pm:

I am leaving for the day but in my opinion your colleague is wrong. More Monday.

By Vern Edwards on Thursday, April 18, 2002 - 04:06 pm:

Anon1:

If your colleague is saying that you can use the contractor's clauses instead of the ones prescribed by FAR 12.301(b), then I agree with Anonymous that your colleague is wrong.

I don't think that the use of Standard Form 1449 is mandatory (see FAR § 12.303, which appears to say that the form is to be used "to the maximum extent practicable"), but FAR § 12.301(b) clearly says that the contracting officer "shall" insert the clauses at FAR §§ 52.212-4 and 5 in contracts for commercial items.

Are you talking about just the form, or are you talking about the clauses, as well?

By Anon1 on Friday, April 19, 2002 - 10:45 am:

I am talking about a government contract form and the clauses.

By Vern Edwards on Friday, April 19, 2002 - 11:32 am:

Anon1:

Well, then, I don't know how your colleague gets around the requirement to use the prescribed clauses. Maybe you've had a miscommunication. Or maybe he/she knows something I don't.

By Anon on Friday, April 19, 2002 - 01:05 pm:

FAR 12.301(d) makes it pretty clear that 52.212-4 and -5 shall be used, they can be revised as necessary but "shall" makes it pretty much clear that they will be used.

www.cadv.org is a pretty good place to see commercial terms and conditions for various commodities if revisions fitting the comercial market conditions are being considered as part of the revisions to the Part 12 clauses in addition to other FAR clauses used in any addendum.

Also see FAR 12.302 as to what can't be tailored with respect to 52.212-4.

By Anonymous on Friday, April 19, 2002 - 04:42 pm:

You said in your original message: "I performed all of the normal source selection procedures and signed a contractor's standard commercial agreement for the contractor to provide commercial services for over $600,000."

Just out of curiosity, why did you sign the contractor's standard agreement? In doing so, it seems like you created a contract at that point in time, with the terms consisting of the contractor's terms plus (presumably) any required FAR provisions under the Christian Doctrine. What are you going to do if you now send a 1449 to the contractor and they tell you (politely) that they won't sign it because they already have a signed contract? I guess you could terminate it for convenience, or direct them to comply with the clauses incorporated under Christian, but this sounds awfully messy.

Why wouldn't (shouldn't) the only award document be the 1449?