If you are obtaining commercial services,and you are using 12.6 combined synopsis/solicitation...and such services are subject to the SCA do you not have to include the WD or at least a reference to it in you S/S?

By anon on tuesday!! on Tuesday, October 23, 2001 - 03:28 pm:

If ..."such services are subject to the SCA" , yes, you must.

By speele on Tuesday, October 23, 2001 - 03:31 pm:

My suggestion would be to list the FAR Clause and wage determination number then state that a copy can be obtained by contacting the agency. That is what we do with the 52.212-3 Certifications. If they do not have the certifications then we tell them to contact us. Then we fax or email them.

By Anonymous on Tuesday, October 23, 2001 - 04:04 pm:

It is amazing to me that a review of 200 such actions,of current or recent vintage,in the CBD,shows only one action that came close to doing it right. Have we substituted commercial pricing for the SCA? And I am not talking about actions which meet the exceptions...I am talking about unambiguous SCA work...what is going on?

By Anon on Wednesday on Wednesday, October 24, 2001 - 12:45 pm:

I would guess, "yes", contracting offices are routinely ignoring statutory labor requirements under the guise of "commercial item" acquisitions.

By Anonymous on Wednesday, October 24, 2001 - 03:46 pm:

And if the DoL personnel are maintaining their SOP (which some within the agency admitted 2 years ago was minimal, if any, inspections, and only of the contracts that were SCA type where Dol was notified by the CO), then there is no reason to believe the statute will be followed.

By speele on Wednesday, October 24, 2001 - 05:12 pm:

If the service is for remanufacturing/overhaul of a part then Walsh Healey applies and that is exempt from commercial procurements also exempt is professional services. In addition, since construction has not yet been determined to be commercial Davis Bacon also doesn't apply. Maybe there aren't many solicitations that require wage rates. We would only no that the regs weren't being followed if we could see the justification located in the contract file. I would think any procurement office would follow the regs required by DOL in case a labor claim is filed. Since we are able to download our wage rates submitting an SF98 after the fact there is not much leadtime involved in following the regs. I wouldn't just assume that people aren't adhering.

By joel hoffman on Wednesday, October 24, 2001 - 05:34 pm:

Speegle: What did you mean by: "In addition, since construction has not yet been determined to be commercial Davis Bacon also doesn't apply" ?

What did you mean by "Maybe there aren't many solicitations that require wage rates."

Sorry, you confused me. Construction contracts in the US, over $2k, require the D-B wage rates. Construction is not a commercial acquisition, so D-B applies to construction... happy sails! joel

By speele on Thursday, October 25, 2001 - 08:26 am:

The October 23rd 4:04 comment above is what I was responding to. Apparently someone looked at the combined synopsis/solicitations on the CBD and made a comment about substituting commercial pricing for the SCA.

We do several combined synopsis/solicitations for overhaul of aircraft parts which we have determined to be Walsh Healey applicable and therefore do not incorporate the SCA.

Since you can only use the combined synopsis/soliciation with commercial items and construction isn't commercial I was explaining that wage rates for Davis Bacon would not show up in a combined synopsis/solicitation.

The comment made, sounded like there wasn't anyone adhering to the regulations when using this method of soliciting and I was pointing out reasons why you would not see wage rates incorporated in some of the solicitations.

By 10/23 404 on Thursday, October 25, 2001 - 08:51 am:

speele
Actually that was exactly what I was saying. I know when the SCA does apply but I was pointing out that in every case but one,where the SCA does apply,and when using 12.6, there was never any mention of the required minimums,or a WD # or where to obtain them. I used a CBD simple search keyword "12.6".I ignored all S/S that used a numeric supply code and scrolled only those using alpha codes. Then,realizing that these appear in the CBD because of dollar values I assumed that all exceeded the thresholds required for SCA. After reviewing them I found only one case where the SCA did apply and the KO mentioned it. Others not only fail to mention it but fail to incorporate the necessary clauses in 52-212-05.In fact,I think we are doing as inept a job here as is possible.

By Fred Weatherill on Thursday, October 25, 2001 - 12:05 pm:

I cannot resist! I’ll take the bait. The general consensus in this forum is and has been that construction is not a commercial item. I would like to offer an alternate view. While I was attending an agency sponsored training, the presenter, (who shall remain unnamed, but who is a nationally recognized authority on government contracting) made the following analysis:

FAR 2.101 “Supplies” means all property except land or interest in land. It includes (but is not limited to) public works, buildings, and facilities: …

FAR 12.101(a) this part shall be used for the acquisition of supplies or services that meet the definition of commercial items at 2.101.

FAR 2.101 “Commercial items” means (1) any item, other than real property, that is of a type customarily used for nongovernmental purposes and that--- (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; …

The starting point for the interpretation that was offered by the presenter was that the phrase, “public works, buildings, and facilities” encompasses, includes, or is the same as what we think of as construction. From this point the rest of the analysis proceeds in a rather straightforward fashion. Construction is customarily used for nongovernmental purposes and is sold to the general public. Construction is a supply, and supplies may be acquired a commercial item.

Prior to the presentation, the attendees had universally accepted the notion that construction was not a commercial item. After the presentation, and after much discussion, they came away wanting to believe that construction was a commercial item.

What do you think?

By joel hoffman on Thursday, October 25, 2001 - 12:36 pm:

Thanks for the clarification, Speele.

Fred, my attorney, who is on the FAR committee for construction, has made it very clear that construction isn't considered a commercial item. Yes, there has been debate about whether it would be appropriate for commercial item acquisition, but as of now, no.

By the way, there are no industry standard commercial terms and conditions for construction. There are at least five or six major industry groups which prepare 'model contract' formats, terms and conditions - all of which favor their constituency for risk allocation. From that point, there are numerous options for risk allocation, even within each model format. Each state and locality draft fifferent contract formats. If you solicited bids or proposals on the open market without your own contract terms and conditions, you would need a Philadelphia lawyer to interpret all the proposals. I was a private consulting engineer, a city engineer, an Air Force civil engineer and a COE engineer. Each organization has different terms and conditions, believe me. Each project usually requires tailored terms and conditions. The commercial item acquisition approach, as I understand it, isn't presently a suitable format for a construction project.

There are several alternative acquisition approaches already available to simplify and lower the acquisition costs for both Government and industry on contracting for construction of small projects.

One is establishing blanket purchase agreements with several firms, whereby the terms and conditions are pre-set and the firms simply submit bids or simple proposals on individual, small projects.

Another is through standing task order contracts, either sole award or multiple awards.

Electronic advertising with web-based solicitiations, including terms, conditions and scopes of work is also a rather cheap and quick way to aquire construction. Unfortunately, all the social and economic special programs and statutes generally apply to construction, making it more difficult than for supplies or some services to use a commercial item acquisition approach. happy sails! joel

By speele on Thursday, October 25, 2001 - 12:37 pm:

My opinion is, I agree with you 100% construction should be commercial!

By speele on Thursday, October 25, 2001 - 12:40 pm:

Joel, are you Government or Industry, if you don't mind me asking?

By 10-23 on Thursday, October 25, 2001 - 12:47 pm:

I think we are confusing terms.....in the FAR definition of supplies the word "building" is a noun not a verb. Thus when an agency ,such as GSA,buys a building,its commercial...its also not construction. When GSA has a structure built...its not commercial and is construction.

By speele on Thursday, October 25, 2001 - 01:14 pm:

You have to love this profession , nothing is clear and everything is subject to interpretation.

I've been reading this site for a long time and you guys are very knowledgeable. I can always count on you to give me an alternative way to look at a situation. Thank you all!

By AL on Thursday, October 25, 2001 - 01:29 pm:

To 10-23--When GSA buys a building, it is not commercial, because a building is real property, which is excluded from the definition of commercial items. I'm not saying a building (or construction) shouldn't or couldn't be considered "commercial," because obviously the rest of the world buys buildings and construction. It's just that, for the FAR/federal procurement world, it is defined out of commerciality.

By 1023 on Thursday, October 25, 2001 - 02:30 pm:

When GSA buys a building it does not use the FAR either,...my point was to differentiate between buying a buiklding and building a building.

By joel hoffman on Thursday, October 25, 2001 - 03:15 pm:

If I'm not mistaken, the idea of Part 12, acquisition of commercial items, was to encourage the Government to buy and to simply methods for buying standard, non-developmental products and certain associated services. Yes, buying a standard pre-fab, portable building can certainly be a commercial item.

But federal construction wasn't really the problem that Congress and the high level policy makers were primarily targeting. Federal construction already used standard commercial products, tests and procedures for the most part. YES, the Government's standard guide specifications did often contain some FEDSPECS and other Government unique tests. Most of those have been rewritten and the few remaining references are almost gone The commercial codes and standards organizations stepped up to fill voids, too. Except for "mandatory federal requirements", which have not ben waived, most guide specifications now mirror industry specs.

As I stated above, there are no "industry standard" terms and conditions. The owner generally can't avoid developing and issuing the contract format and terms and conditions with a solicitation - That is industry standard!. The primary exceptions are very simple pre-fab buildings or pre-fab farm structures! There are seldom standardized prices for installation, unless you are dealing with very, very basic installation work or totally pre-fab "set and plug-in" work.

There are ways to simplify solictitations, too - web based solictiations, pre-placed BPA's, pre-placed task order contracts etc. happy sails! joel hoffman (Speele - I work for the Fed. Government, once in private practice)

By Anonymous on Friday, October 26, 2001 - 10:57 am:

This discussion brings out an interesting facet of "commercial" as used in Federal acquisition. The particular comment that struck me with this is in Joel's Oct. 25 post:

If you solicited bids or proposals on the open market without your own contract terms and conditions, you would need a Philadelphia lawyer to interpret all the proposals.

Perhaps everyone has been confused and are confused from the start on a core issue. FAR "'Commercial item' means" language gives extensive definition of what a commercial item may be. It may ignore a fundamental.

When we engage in ordinary commerce we should read the fine print. We do not expect or tolerate complex "contracts." Even an automobile or home purchase contract is relatively simple in comparison with almost any Federal contract. We certainly do not expect to have to negotiate terms much beyond a transfer of ownership or rights for a designated amount. We accept "as is" or some warranty and rely on state laws for the final definition of those. To simplify, we are willing to enter into a relatively standard transaction unarmed by bringing our own contract terms.

It appears a fundamental of "commercial item" is not what it is. It is how it is exchanged. We can feel safe being a reasonably astute shopper accepting the vendor's terms or must protect ourselves, for whatever reason, with our own terms.

I am now seeing signs some contracting offices are trying to add familiar complications in "commercial item" acquisition. That certainly defeats the purpose.

By Anon on Friday, October 26, 2001 - 11:06 am:

I'm not altogether convinced that contracting offices are adding complications, I think the complications arise from poorly written regulations and implementing policies. Look at FAR 13.5, why did they use the term "offer" in lieu of "quote"? The 1449 is a joke as a form. I see all kinds of best practices guides to buying COTS items, why? Don't we all buy stuff in our private lives?

It's true, too many cooks do spoil the soup.

By joel hoffman on Friday, October 26, 2001 - 11:13 am:

One must also that most sales of goods in the open market place are regulated by the Uniform Commercial Code.

Supplier terms usually supplement or modify the UCC terms, correct? There are huge differences between commercial transactions, subject to the UCC, and contracts for construction, which are usually individually drafted.

That is why, as I see it, a "construction contract" is not generally suitable for Part 12, Acquisition of Commercial Items, even though it involves installation of standard commercial products. happy sails! joel

By joel hoffman on Friday, October 26, 2001 - 11:24 am:

Anon 10:57, please note that my Oct. 25 comment:

"If you solicited bids or proposals on the open market without your own contract terms and conditions, you would need a Philadelphia lawyer to interpret all the proposals"

...ONLY referred to construction contracts, in reply to some argument that Part 12 applies to construction. I wasn't sure whether you caught that distinction in my earlier post. I was NOT referring to purchases of goods and related services.

The primary thrust to Part 12 procedures, beyond purchasing standard manufactured items and related services, is to go with commercial selling practice, where standardized, instead of uneccesarily complicating it with additional Federal acquisition regulations and statutes. That is as important as the item itself. happy sails! joel

By Anon 10:57 on Friday, October 26, 2001 - 12:38 pm:

Joel, I got it. That was the trigger for a thought that a fundamental of a true commercial item tends to be compliance with a standard commercial practice that does not need pages upon pages of terms.

I have seen some indication contracting offices are adding complications. There is no doubt buying 10,000 pencils is buying a commercial item. Buying 10,000 pencils and setting all sorts of conditions is not. Some offices don't seem to get the difference and want a commercial supplier to become involved in a number of issues no commercial customer would consider. The line can be somewhat hazy (Is "buy American" commercial or a reasonable shopping criterion?), but I've heard of at least a few that appear to be over a reasonable line.

By Ron Vogt on Friday, October 26, 2001 - 01:14 pm:

Joel, actually, it is the opposite: UCC terms supplement contract terms and conditions. The UCC typically is referred to as a "gap filler." That is, its provisions fill the gap when a contract fails to address an issue. There are only a few provisions that would prevail over contrary terms in the contract.

By joel hoffman on Friday, October 26, 2001 - 02:04 pm:

Thanks, Ron and Anon 10:57 (This may be a duplicate - I lost an earlier post)

Ron, we might mean the same thing, although you said it clearer. I thought that UCC provisions are comparable to standing "general conditions" or FAR's contract clauses - you just don't have to distribute them with every purchase. You only specify additional terms, as needed, specify an option where UCC addresses choices, or specifiy a term where UCC doesn't cover a topic. happy sails! joel

By Fred Weatherill on Friday, October 26, 2001 - 03:36 pm:

Joel, the insights of your counsel are very interesting. However, what I would ask of him or of you is what FAR citation can you bring to bear to support the position that construction is not a commercial item.

So far the objections to the use of commercial item techniques for construction deal with standards, pricing, social/economic policies, and difficulty. I would submit that none of these concerns rise to the level of prohibition. The issue of standard industry clauses seems to have been overcome in other commercial item purchases. It is not uncommon for different vendors of similar or common products to have different clauses. One only needs to review the arnet publication “an anthology of commercial terms and conditions” to see that there are a variety of clauses available on the same issue in the same industry. The construction industry is no different and should not be held to a different standard. In addition, there is a whole range of construction standards that have national acceptance. In the construction industry pricing is evolved to a high art. There are any number of pricing/estimating guides i.e. R.S. Means Cost Estimating System. As this thread has demonstrated, social/economic issues such the SCA are incorporated into commercial items. In this regard Davis-Bacon would also be incorporated. Lastly, there is the issue of difficulty. It seems that we may be confusing difficulty with propriety. Impropriety stops us in our tracks, while difficulty confronts us with a challenge to be overcome.

So, challenge or impropriety, which is it?

By joel hoffman on Friday, October 26, 2001 - 05:28 pm:

Impropriety. She is on FAR committees, one being the folks which implement construction policy. Construction (Real Property) was specifically excluded from the definition of a commercial item. She told me about some of the hot debates which occurred while the Part 12 procedures were being developed.

Construction doesn't fit the model developed for FAR Part 12 commercial item acquisitions, where the Government may purchase commercial goods and related services, with less paperwork, using commercial standard "terms and conditions"* , often furnished by the seller.

Do you understand that there are no "standard" construction industry-wide contract formats, or contract terms and conditions, because umpteen different organizations have model guidelines, each tailored to serve their constituents.

It is customary in the industry for the owner's licensed, professional designer or licensed, professional construction manager to draft the project manual, including terms and conditions for the specific project, based on the specifics of the project. This involves risk allocation vis a vis how much the owner is willing to pay and how much risk and resultant contingency the contractor must allow for. The contractor does not normally furnish the project manual. Yes, contractors frequently negotiate terms and conditions, but other than in specialized cases, don't usually draft them.

(*"terms and conditions" refer to general and job special conditions, clauses, etc. It does not mean the scope of work, quality standards, performance requirements, etc.)

happy sails! joel

By Anonymous on Saturday, October 27, 2001 - 12:13 am:

Joel, I'm a little amused about how you make so much of lack of an industry standard in construction as being an exemption factor.

Ever look at software license agreements? Their variance hasn't stopped anyone at all in that respect. Certainly it did not stop Congress when it chose to force acceptance of the "commercial" license terms versus a standard government license.

Quite a few software buys are equal to at least small buildings.

By joel hoffman on Saturday, October 27, 2001 - 06:46 am:

Anon,
Who drafts the software license? The software industry.

Who designs the software? The software industry.

Not a close comparison. happy sails! joel

By joel hoffman on Saturday, October 27, 2001 - 07:12 am:

Anon, for the size of commercial acquisitions under Part 12, I don't think you will find the construction industry too interested in taking on the additional cost, design liability risk, the effort involved to design a facility or even to draft a proposal's terms, conditions, etc., on a "maybe I'll get the contract" basis. Bidding a job costs a lot of money and ties up resources. Big firms aren't interested in little jobs with an expanded scope of services and small firms can't afford the added cost or effort.

There are full service, integrated design-builders out there, but they comprise a small minority of the market, right now. We have found that they won't play unless you do a pre-selection step to limit the final competition to no more than a handfull of firms.

But, hey, whatever. I didn't make the decision to exclude construction from Part 12. happy sails! joel

By Anonymous on Saturday, October 27, 2001 - 12:41 pm:

Joel,

My comment was not meant to be a comparison with "construction." It was meant to show that lack of a standard "contract" form is not a key issue. If construction is exempt, the fact that there is no uniformity in terms and conditions is not a good factor. It is certainly not unique to construction.