I'd appreciate some input on the following scenario:

A commercial item is set-aside exclusively for small business participation. The item is rated 'DO' under the Defense Priority and Allocation System (DPAS). It's a DoD solicitation that exceeds the simplified acquisition threshold.

The FAR Part 12 clauses do not address gratuities, set-asides, or DPAS.

(10 USC 2207 prohibits use of DoD appropriated funds for contracts in excess of the simplified acquisition threshold unless the contract contains provisions for termination if the contractor offered gratuities to obtain favorable treatment of the contract award, and the DPAS requirements are embedded in various statutes, notably The Selective Service Act of 1948 and The Defense Production Act of 1950, as amended.)

I realize that the SF 1449 has a block that designates whether the solicitation is set-aside. Is that sufficient to cover the information contained in 52.219-6?

Do I need to obtain a waiver as described in FAR 12.302(c) to include FAR Clause 52.203-3, Gratuities, and 52.211-15, Defense Priority and Allocation? Or do I ignore these requirements based on the language at FAR 12.301(d), which states: "Notwithstanding prescriptions contained elsewhere in the FAR, when acquiring commercial items, contracting officers shall be required to use only those provisions and clauses prescribed in this part. The provisions and clauses prescribed in this part shall be revised, as necessary, to reflect the applicability of statutes and executive orders to the acquisition of commercial items."?

Thanks.

Linda

By C Mercy on Thursday, March 01, 2001 - 08:46 am:

This is an excellent question and at least as far as the SBSA goes I wrote the AAP last year about the very sane thing. Their answer was that the block on the 1449 was all that was needed. I disagree because the block does not reference the clause and other than merely announcing its a small business set aside the clause also imposes certain participation goals on the prime which become,in my opinion, unenforceable because there is no contract coverage. Its funny how the 52-212 clauses handle Hubzone and VSB set asides but not small business set asides. There are termination clauses in 52-212-4 so I believe that is covered. As far as DPAC I would not think it necessary to add the clause but I would indicate that it is a rated order.

By Linda Koone on Friday, March 02, 2001 - 08:20 pm:

Appreciate the input!

Complicating my situation is that we have a deviation from the requirement to use the SF1449 for commercial item procurements processed through our legacy automated procurement system (no funding available). As part of the deviation, we are typically using FAR Part 13 forms (SF18 and DD1155). The SF18 has a block to indicate whether the requirement is set-aside, but the award document doesn’t. Therefore, the block on the SF1449 doesn’t work for us. We need some coverage in the award. I'm trying to determine whether it's necessary to obtain a waiver to include the clause.

I agree with you on the DPAS issue.

As for the Gratuities, I understand 52.212-4 provides a termination provision, however, I’m not sure that this language meets the statutory requirement.

The thing that I find interesting is that one of the purposes of FAR Part 12 (as I recall) was to entice companies who were reluctant to enter into Government contracts because of the myriad of requirements into contracting directly with the Government.

If these companies now agree to do business with the Government but are unfamiliar with the requirements of the Small Business Act or prohibition against gratuities, and these requirements still exist, but aren't specifically stated in a contract, what happens when an ‘unknowing’ contractor violates these statutes?

By C Mercy on Tuesday, March 06, 2001 - 02:37 pm:

Well look at it this way--FASA was statutory and as it is later law it supercedes previous statute. Although the use of Gratuities is still unhallowed there is no reason to include it as a separate contract clause.I think this is born out by 52-212-4 (q).However I do agree that the inability to include (or already have it in place @ 52-212-5) the SBSA clause is beyond me. If the 1449 box referenced the clause it would be ok by me--but it does not. And I do not think the Christian Doctrine is applicable here as there is no statutory requirement to include it in the first place. In fact if I were you I would request a waiver just so that it would be brought to someone's attention.Unfortunatly waiver approval has been delegated way down in many agencies so its impact would be nil (at least getting it to the FAR council). It seems to me that if you were to do a partial SA you would absolutely have to include the appropriate clause. By the way if you are using 52-212-4 but not the 1449 there is a line in the last paragraph I think which references the SF1449 . Anyway that's what I think.

By Linda Koone on Tuesday, March 06, 2001 - 03:42 pm:

I like that catch-all sentence found at 52.212-4(q)...

"The Contractor shall comply with all applicable Federal, State and local laws,executive orders, rules and regulations applicable to its performance under this contract."

Wouldn't it be nice if we could just insert that sentence in all of our contracts? It would certainly reduce the size of FAR Part 52!

Actually, I am going to obtain a 'blanket' waiver for 52.219-6. And the approval level will be our CCO. I'm not in the mood for elevating it to the FAR Council and all the fun that brings! (Sorry)

By the way, is that how conflict between statutes is resolved? By the date of the statute?

Thanks.

By C MERCY on Tuesday, March 06, 2001 - 04:06 pm:

YES

By C Mercy on Wednesday, March 07, 2001 - 10:06 am:

I was puting some materials together for a class I am going to give and I noticed something that I thought I would comment on. In 52-212-5 at (b) (8) the SDB price evaluation adjustment there is no place to include the current per centage. If you are in unrestricted 100k+ mode you would have to indicate the per centage to be applied somewhere. I woulds suggest adding the per centage at the end of the clause cite. What do you think?

By Linda Koone on Wednesday, March 07, 2001 - 01:07 pm:

If you're asking my opinion, I'd say putting it at the end of the clause cite is as good as any place... if you can do that. Our automated procurement system isn't flexible enough to allow for that. We will have to include a separate statement, as an addendum, to specify the percentage.

It would be nice if the clause itself directed you to a website (such as ARNET) that lists current and historical percentages instead of requiring a fill-in.