Contractor or Vendor

Where are the words being used?

Everywhere... sorry to sound so ambiguous, but I see the terms used interchangeably in SOWs, PWSs, RFQs, RFPs... everywhere.. Are they interchangeable?

I was originally taught (probably wrongly) that a "vendor" was like the soda machine company or a hot-dog vendor, where they are allowed to sell on government land but must pay a percentage (or fixed fee) to do so... and that a "contractor" was a company that via contract provided a product, service, or construction to the Government for a price.

Now as I'm getting a little older doing this stuff, I'd like to be sure of some of the terminology before I get too much farther...

I looked in Part 2 of the FAR, but didn't see either defined. Then I did a FAR Search on one of the FAR websites and both terms are used frequently.

Any clarification is appreciated.

Everywhere... sorry to sound so ambiguous, but I see the terms used interchangeably in SOWs, PWSs, RFQs, RFPs... everywhere.. Are they interchangeable?

I was originally taught (probably wrongly) that a "vendor" was like the soda machine company or a hot-dog vendor, where they are allowed to sell on government land but must pay a percentage (or fixed fee) to do so... and that a "contractor" was a company that via contract provided a product, service, or construction to the Government for a price.

Now as I'm getting a little older doing this stuff, I'd like to be sure of some of the terminology before I get too much farther...

I looked in Part 2 of the FAR, but didn't see either defined. Then I did a FAR Search on one of the FAR websites and both terms are used frequently.

Any clarification is appreciated.

Personally, I view them as interchangeable. I've never heard a distinction like you describe. My experience is that Procurement folks more often refer to "vendor", where Contracts and Subcontracts people call them "contractor/subcontractor."

Within the context of applying the rules of the FAR, there is generally no difference. However, the difference could be significant in a different context.

The meaning, when used in a contract, depends on the intention of the parties. When used less formally it could mean almost anything connected with selling something to someone.

Merriam-Webster's Third New International Dictionary, Unabridged, defines vendor as follows: "one that offers goods for sale especially habitually or as a means of livelihood : SELLER: a (1) : an independent seller in a small way of business; especially : PEDDLER (2) : a person that hawks and sells merchandise (as refreshments, programs, or souvenirs) to patrons of a public gathering b : VENDING MACHINE.

The Government Contracts Reference Book, 3d ed., defines vendor as "A seller of goods," and says that in government contracting it usually refers to a person or organization who sells to contractors.

Black's Law Dictionary, 8th ed., defines vendor as "seller, usu. of real property."

FAR uses the word vendor in 33 places, in most cases using it as a synonym for subcontractor, as in the clause at 52.222-54, Employment Eligibility Verfication (Jan 2009), paragraph (a): "Subcontractor means any supplier, distributor, or firm that furnishes supplies or services to or for a prime Contractor or another subcontractor." However, it also uses the term to refer to a firm that sells to the government, as in FAR 8.501: "Federal helium supplier means a private helium vendor that has an in-kind crude helium sales contract with the Bureau of Land Management (BLM) and that is on the BLM Amarillo Field Office's Authorized List of Federal Helium Suppliers available via the Internet... . See also FAR 13.102(a): "Contracting officers should use the Central Contractor Registration database (see Subpart 4.11) at as their primary sources of vendor information" It sometimes uses the term in a way that seems to make a distinction, as in FAR 15.407-4((3): "While the particular elements to be analyzed are a function of the contract work task, elements such as manufacturing, pricing and accounting, management and organization, and subcontract and vendor management are normally reviewed in a should-cost review."

All in all, I do not think that FAR makes a clear distinction between contractor, subcontractor, and vendor, but it seems to use it most often to refer to someone who sells to a prime contractor or a subcontractor.

I personally think of "vendor" as a demeaning term. I like to use "offeror" in solicitation instructions and provisions (pre-award context) and "contractor" (post award contractor) when referring to the prime.

For what it's worth, I have a Government Contracts Dictionary that was provided to me many years ago when I went to my first contracts training class. I use it quite often. It doesn't always give the source for its definitions, but in the forward it says it has been compiled from scattered elements of Federal, State and local government contracting regulations and literature. Here are the definitions it contains for Contractor and Vendor:

Contractor: (1) A supplier, vendor or manufacturer having a contract (commitment) to provide supplies or services to the Government. (2) Any individual or other legal entity that (a) directly or indirectly (e.g., through an affiliate), submits offers for or is awarded, or reasonably may be expected to submit offers for or be awarded, a Government contract, including a contract for carriage under Government or commercial bills of lading, or a subcontract under a Government contract or ( conducts business, or reasonably may be expected to conduct business, with the Government as an agent or representative of another contractor.

Vendor: (1) Seller. Means a supplier of goods or one who operates in real estate; a supplier of a house, etc. (2) An individual, partnership, corporation or other activity which sells property to the military establishment. A vendor may supply a Government contractor. See Contractor.

I also think it's interesting that, for those who deal with, or are in, DoD, the Defense Finance and Accounting Service (DFAS) has their Accounts Payable operation broken down into two parts - "Contract Pay" and "Vendor Pay." Here's their description:

"Contract Pay:

"The contract pay function within Accounts Payable operates solely out of DFAS Columbus, and includes paying contractors through formal, long-term contract instruments, requiring contract administration, that provide products and services to the DoD components (the military Services and defense agencies). Those contracts are typically administered by the Defense Contract Management Agency (DCMA) and tend to be complex, multi-year purchases with high dollar values, such as the purchase of major weapon systems. The contract pay function makes payments to more than 17,100 contractors on some 317,000-plus contracts.

"In addition to the operations functions of entitlement and payment, contract pay encompasses all the ancillary functions in support of operations, such as policy and procedures; contract reconciliation; electronic commerce initiatives; debt collection, reporting and analysis and customer service.

"Vendor Pay:

"The vendor pay function within Accounts Payable, as of February 2007, operates from 16 DFAS sites, two of them overseas (one in Germany, one in Japan). Nine stateside vendor pay locations will be closed by FY 2009, with that workload moved to the enduring DFAS sites in CONUS.

"Vendor pay includes entitlement determination and payment for day-to-day goods and services on contracts not administered by DCMA, plus miscellaneous non-contractual payments to businesses and individuals (e.g., utilities). Vendor pay uses 16 different systems to make payments in support of the Army, Navy, Air Force, Marine Corps and Defense Agencies. Some systems support only a single commodity type (e.g., fuels; subsistence; Commissary items), while others are used at multiple sites for a variety of goods and services."

Interesting distinction Navy_Contracting!

New question: Since vendor pay locations are closing, will they continue to make a distinction between contract and vendor pay?

I have a question along these lines. Contractor, Vendor, Offeror - these are often used interchangeably. But specifically, for Simplified Acquisitions, FAR 13.004 says that a quote is not an offer. Therefore, doesn't that mean that the company submitting a quote is not an offeror? In Simplified Acquisitions, the Government makes the offer and the Awardee/Contractor accepts by performing. Most of the time, Simplified Acquisition Procedures/RFQs (FAR 13) are used to obtain Commercial Items (FAR 12). So what ends up happening is that an RFQ is issued, it has the clauses required by FAR 12.301 (FAR 52.212-1 to FAR 52.212-5), and those clauses repeatedly refer to the contractors who may submit a quote as "Offerors." But they are not offerors, they are . . . well . . . what is the most appropriate term? Just say "contractors"? Or vendors"? They are certainly not offerors.

Has anybody else noticed this problem?

I have a question along these lines. Contractor, Vendor, Offeror - these are often used interchangeably. But specifically, for Simplified Acquisitions, FAR 13.004 says that a quote is not an offer. Therefore, doesn't that mean that the company submitting a quote is not an offeror? In Simplified Acquisitions, the Government makes the offer and the Awardee/Contractor accepts by performing. Most of the time, Simplified Acquisition Procedures/RFQs (FAR 13) are used to obtain Commercial Items (FAR 12). So what ends up happening is that an RFQ is issued, it has the clauses required by FAR 12.301 (FAR 52.212-1 to FAR 52.212-5), and those clauses repeatedly refer to the contractors who may submit a quote as "Offerors." But they are not offerors, they are . . . well . . . what is the most appropriate term? Just say "contractors"? Or vendors"? They are certainly not offerors.

Has anybody else noticed this problem?

There may not be a big difference between a "contractor" and a "vendor" but there is a HUGE difference between an "offeror" and a "quoter". I use the word "quoter" when soliciting RFQs.

FAR uses the word "quoters." For example, FAR 13.106-1(a)(2) states:

When soliciting quotations or offers, the contracting officer shall notify potential quoters or offerors of the basis on which award will be made (price alone or price and other factors, e.g., past performance and quality). Contracting officers are encouraged to use best value.

You can tailor FAR 52.212-1 to change "offerors" to "quoters" if you like.

FAR uses the word "quoters." For example, FAR 13.106-1(a)(2) states:

When soliciting quotations or offers, the contracting officer shall notify potential quoters or offerors of the basis on which award will be made (price alone or price and other factors, e.g., past performance and quality). Contracting officers are encouraged to use best value.

You can tailor FAR 52.212-1 to change "offerors" to "quoters" if you like.

I've never seen a version of 52.212-1 that is tailored specifically for RFQs. It would require tailoring not only to the term "offer/offeror" but also tailoring of several references to FAR 15 requirements (i.e. debriefings, discussions, late submissions, SF1449 [potentially]). I fear that because tailoring must be by addendum to the clause, a tailored version might be hard to read.

-

I also can't imagine why you would use FAR 52.212-1 for "quoters." It is intended for "offerors" who make offers and are, in fact, bound to hold open those offers for 30 days (FAR 52.212-1©), whereas a "quote" is not, by definition, a legally binding offer (see FAR 13.004). Thus, a "quoter" would be a "vendor" until the Government places an order and the supplier accepts it (see same FAR section). At that point, the vendor/quoter also becomes a "contractor." Hopefully, with an RFQ, you will not need to include all the instructions to offerors found in 52.212-1 because you are not going to have as extensive an evaluation scheme as envisioned in 52.212-2.

K-Law Atty,

I don't understand the point you are trying to make. You don't think that FAR 52.212-1 should be incorporated in RFQs for commercial items?

K-Law Atty,

I don't understand the point you are trying to make. You don't think that FAR 52.212-1 should be incorporated in RFQs for commercial items?

I'm saying 1) that I don't see why you would need it in a pure RFQ -- not an RFP -- and 2) that I can't recall ever seeing it done.

I'm saying 1) that I don't see why you would need it in a pure RFQ -- not an RFP -- and 2) that I can't recall ever seeing it done.

K-Law Attorney

This goes back to the question of July 9 that govt2310 raised about the provision. FAR 13.501? says "When acquiring commercial items using the procedures in this part, the requirements of Part 12 apply subject to the order of precedence provided at 12.102?. This includes use of the provisions and clauses in Subpart 12.3." FAR 12.301 says to use 52.212-1 among other provisions.

I'm saying 1) that I don't see why you would need it in a pure RFQ -- not an RFP -- and 2) that I can't recall ever seeing it done.

K-Law Atty,

You've never seen FAR 52.212-1 included in an RFQ? Can you provide your interpretation of FAR 12.301( ?:

"(

Insert the following provisions in solicitations for the acquisition of commercial items, and clauses in solicitations and contracts for the acquisition of commercial items:

(1) The provision at 52.212-1, Instructions to Offerors?Commercial Items. This provision provides a single, streamlined set of instructions to be used when soliciting offers for commercial items and is incorporated in the solicitation by reference (see Block 27a, SF 1449). The contracting officer may tailor these instructions or provide additional instructions tailored to the specific acquisition in accordance with 12.302."

Also, as an exercise I'd like to suggest you review the site: www.fbo.gov. There you can perform a search of open solicitations and review agency RFQs for commercial items. I just now performed such a search and found no RFQs that did not include 52.212-1.

In defense of K-Law Atty, not that he/she needs my help, FAR 52.212-1 is entitled, Instructions to Offerors. Nowhere does it mention quote or quoter. The text of the provision is clearly inappropriate for use in RFQs. Moreover, FAR 12.301((1) says that it is to be used when soliciting "offers." I cannot find the term "quote" or "quotation" anywhere in FAR Part 12.

Finally, the fact that you can find people using it in RFQs on FBO is evidence of exactly nothing, except that people do all sorts of inappropropriate and improper things on FBO.

In defense of K-Law Atty, not that he/she needs my help, FAR 52.212-1 is entitled, Instructions to Offerors. Nowhere does it mention quote or quoter. The text of the provision is clearly inappropriate for use in RFQs. Moreover, FAR 12.301((1) says that it is to be used when soliciting "offers." I cannot find the term "quote" or "quotation" anywhere in FAR Part 12.

Finally, the fact that you can find people using it in RFQs on FBO is evidence of exactly nothing, except that people do all sorts of inappropropriate and improper things on FBO.

Vern,

I initially agreed with K-Law Atty but I see this in FAR 13.5 - special test athority to use simplifed acquisition procedures for commercail items:

When acquiring commercial items using the procedures in this part, the requirements of Part 12 apply subject to the order of precedence provided at 12.102©. This includes use of the provisions and clauses in Subpart 12.3.

I see your point but it's really unclear whether the provision should be used or not.

In defense of K-Law Atty, not that he/she needs my help, FAR 52.212-1 is entitled, Instructions to Offerors. Nowhere does it mention quote or quoter. The text of the provision is clearly inappropriate for use in RFQs. Moreover, FAR 12.301((1) says that it is to be used when soliciting "offers." I cannot find the term "quote" or "quotation" anywhere in FAR Part 12.

The determining factor as to whether to include a clause or provision in a solicitation is the prescription. The prescription I cited at FAR 12.301(b ) says to include the provision "in solicitations for the acquisition of commercial items." The prescription does not draw a distinction as to whether your solicitation method is RFQ or RFP.

Additionally, FAR 12.102(b ) states: "Contracting officers shall use the policies in this part in conjunction with the policies and procedures for solicitation, evaluation and award prescribed in Part 13, Simplified Acquisition Procedures; Part 14, Sealed Bidding; or Part 15, Contracting by Negotiation, as appropriate for the particular acquisition." [underlining added]. So if you are performing an acquisition for commercial items, you are still using the acquisition procedures of Part 13, 14, or 15, in conjunction with the procedures of Part 12. For example, an open market acquisition for computer equipment < $100K would be solicited using the procedures of Part 12 + 13. FAR Part 13 mentions "quote" many times.

I agree with the premise that provisions 52.212-1, 52.212-2, and 52.212-3 all have sections/language that are not appropriate for a simplified acquisition using an RFQ, but that many of the elements of each of the provisions are just as necessary in an RFQ as an RFP (i.e. CCR Registration, Annual Reps and Certs). If you didn't include these provisions in an commercial item RFQ, you'd need to include a long list of separate FAR provisions (likely that would not be prescribed) or draw up your own provisions to include.

Finally, the fact that you can find people using it in RFQs on FBO is evidence of exactly nothing, except that people do all sorts of inappropropriate and improper things on FBO.

I agree that finding a recurring practice on FBO does not mean the practice is proper. K-Law Atty mentioned they had not see it done before; FBO has many examples of it being done.

In reply to everyone, I would just say that we are probably talking about much the same thing but can't reach that conclusion in this type of communication forum. That said, I appreciate Vern's defense, which I will always gladly take, as I have long appreciated his viewpoint in a number of forums.

I would also say that the FBO search engine does not seem to me to be as inclusive in its results as I would hope. For example, I did a search as suggested by a previous poster and did NOT find the last three RFQs my agency had done. I did however find an offering from the Navy (Solicitation Number:

N6883609T0241) that was styled as an "RFQ" and included a technical evaluation. I am not saying that a tech eval is not allowed for an RFQ, but when we are buying straight commercial commodities based on lowest price--in other words, NOT a FAR Part 15-type procurement--I don't see the need for the extensive instructions. Our last RFQ, for example, simply included a parts list and offerors just provided a price quote for each part. So it just depends on the type of procurement--and that is the beauty of agency discretion and tailoring under the FAR.

To perform a FedBizOpps search on past solicitations and awards, you can use the Advanced Search feature to search for both Active documents and Archived documents. The solicitation you were searching for is archived:

https://www.fbo.gov/?s=opportunity&mode...re&_cview=1

Just to make this issue more confusing, I checked the clause matrix in part 52. The provision is listed with "A" for "as applicable" under Simplified Acquisition procedures!

See below.

FAR 52.212-1 clearly does not apply to requests for quotations and should not be used in them. Read the damned thing. I believe in following FAR, but I do not believe in being stupid about it.

I for one am not trying to be stupid about interpreting and applying the FAR. Common sense is very important. Maybe everyone who includes the provision at 52.212-1 in an RFQ is stupid... or ignorant.

Maybe everyone is just being lazy.

If you read the provision at 52.212-1, it is clearly geared toward the solicitation of offers, and in fact pulls many of its sections from the requirements of FAR Part 15 (i.e. debriefings, late submissions, discussions, etc). When I read the provision, common sense tells me this provision is not wholly appropriate for a RFQ using the combined procedures of Part 12 with Part 13/13.5. This is clearly a problem with the way the provisions are written and/or prescribed in the FAR.

But what about the FAR? It states clearly in the prescription at FAR 12.301(b ) to include 52.212-1 and 52.212-3 in solicitations for the acquisition of commercial items (the provision 52.212-2 is not required). The FAR also states in the instructions for synopsis and solicitation at 12.603(c )(2) that the CO shall include the following statements:

?(ii) The solicitation number and a statement that the solicitation is issued as an invitation to bid (IFB), request for quotation (RFQ) or request for proposal (RFP).?

and

?(viii) A statement that the provision at 52.212-1, Instructions to Offerors?Commercial, applies to this acquisition and a statement regarding any addenda to the provision.?

And the FAR definition of ?Deviation? at 1.401 includes as an action that requires a deviation: ?(b ) The omission of any solicitation provision or contract clause when its prescription requires its use.?

Even looking at it from a common sense approach, the provisions at 52.212-1 and 52.212-3 do contain important requirements and information that need to go in a solicitation, RFP or RFQ. An RFQ needs to specify the NAICS and size standard; quoters need to know they must be CCR registered and have a DUNS and TIN in order to receive an award; and quoters need to submit representations and certifications in order to receive an award. Yes, all this information (as well as all other ?instructions to quoters? information) might more properly be included as separate terms and conditions of the RFQ. But what's happening instead? A CO who knows that the provisions do contain some required information (like reps and certs and CCR/DUNS/TIN), AND sees that the provisions at 52.212-1 and -3 are prescribed by the FAR, AND doesn?t want to go against the FAR is likely to take the easy road and just include the provisions as they are.

Is it also possible that there isn?t a healthy understanding of the difference between ?quote? and ?offer?? Yes. Is it also possible that COs are using RFQs when their requirements have complexities that would make an RFP more appropriate? Yes. Is it also possible that many COs haven?t really read and don?t really know what is even stated in these commercial item provisions? Yes. Is it also possible that many RFQs under SAPs are being put together buy less experienced Contract Specialists and the CO is simply signing off on the awards? Yes.

Lazy, stupid, ignorant? take your pick.

All that said, I think it?s just as lazy to simply exclude a provision while knowing that it is prescribed in the FAR. I don?t think a memo to file cuts it. Common sense is important, but so are the regs. The FAR requires a deviation if you exclude a clause or provision that is prescribed. Omitting 52.212-1 from RFQs and replacing it with more appropriate ?home-grown? language may make more sense, but I don?t see how you do that without getting a deviation first. Especially since a CO may tailor 52.212-1 as needed.

I?d also be surprised if someone in the FAR Councils was not aware of this issue (well, maybe not that surprised). If these provisions and prescriptions haven?t been clarified to date, what does that say about the authors of the FAR? Lazy, stupid, ignorant? take your pick.

The Government clearly needs a set of appropriate provisions for commercial item RFQs using SAPs (including the Test Procedures of 13.5 up to $5.5). It would be nice if the FAR included such provisions. In lieu of that, perhaps a well tailored version of 52.212-1 should be created and circulated.

vbus:

I'm sorry to say it, but I think you're being a little thick about this.

If you read the provision at 52.212-1, it is clearly geared toward the solicitation of offers... .

K-Law Atty and I already said that. I'll go further: There are 12 main paragraphs in the provision, (a) through (l). Of those, only (a), (d), (i), (j), and (k) have any possible practical utility in an RFQ under FAR Part 13, and all of them refer to "offers" and would have to be tailored.

But what about the FAR? It states clearly in the prescription at FAR 12.301(b ) to include 52.212-1 and 52.212-3 in solicitations for the acquisition of commercial items (the provision 52.212-2 is not required).

FAR 12.301((1) says that 52.212-1 is "to be used when soliciting offers for commercial items... ." Offers, vbus, not quotes. You cannot read 12.603?(2) to require the use of 52.212-1 when soliciting quotes, since the provision includes rules that do not apply to quotes, such as the late bid rule, which speaks of offers and modifications, revisions, and withdrawals of offers, not quotes. The GAO has said that the FAR late bid rules do not apply to quotes, unless the CO makes a specific decision to apply one of them, and why would a CO do that?

Even looking at it from a common sense approach, the provisions at 52.212-1 and 52.212-3 do contain important requirements and information that need to go in a solicitation, RFP or RFQ. An RFQ needs to specify the NAICS and size standard; quoters need to know they must be CCR registered and have a DUNS and TIN in order to receive an award; and quoters need to submit representations and certifications in order to receive an award. Yes, all this information (as well as all other “instructions to quoters” information) might more properly be included as separate terms and conditions of the RFQ. But what's happening instead? A CO who knows that the provisions do contain some required information (like reps and certs and CCR/DUNS/TIN), AND sees that the provisions at 52.212-1 and -3 are prescribed by the FAR, AND doesn’t want to go against the FAR is likely to take the easy road and just include the provisions as they are.

What has any of that got to do with whether or not a CO is required to use 52.212-1 in an RFQ? I'll tell you: absolutely nothing. And, as a practical matter, if you are going to use 52.212-1 in an RFQ you will have to tailor it so extensively that you might as well write a provision of your own.

Is it also possible that there isn’t a healthy understanding of the difference between “quote” and “offer”? Yes. Is it also possible that COs are using RFQs when their requirements have complexities that would make an RFP more appropriate? Yes. Is it also possible that many COs haven’t really read and don’t really know what is even stated in these commercial item provisions? Yes. Is it also possible that many RFQs under SAPs are being put together buy less experienced Contract Specialists and the CO is simply signing off on the awards? Yes.

Again, what does that have to do with whether a CO is required to use 52.212-1 in an RFQ? Again--nothing. And what does requirement complexity have to do with whether an RFQ or an RFP is most appropriate?

All that said, I think it’s just as lazy to simply exclude a provision while knowing that it is prescribed in the FAR.

It is not prescribed by FAR for use in RFQs. FAR 12.301, of which you are so fond, clearly states that 52.212-1 is to be used to solicit offers. OFFERS!

I’d also be surprised if someone in the FAR Councils was not aware of this issue (well, maybe not that surprised). If these provisions and prescriptions haven’t been clarified to date, what does that say about the authors of the FAR? Lazy, stupid, ignorant… take your pick.

Yet again, what does any of that have to do with whether 52.212-1 must be used in an RFQ?

The Government clearly needs a set of appropriate provisions for commercial item RFQs using SAPs (including the Test Procedures of 13.5 up to $5.5). It would be nice if the FAR included such provisions. In lieu of that, perhaps a well tailored version of 52.212-1 should be created and circulated.

Perhaps, but, again, what does that have to do with whether FAR 52.212-1 must be used in an RFQ?

I know something about reading the FAR. Just a little. And I say you are off base in suggesting (or saying, I can't tell where you stand anymore) that FAR 52.212-1 must be used in an RFQ under FAR Parts 12 and 13. In my opinion, any CO who uses it in an RFQ is incompetent. Any CO who bothers tailoring it for use in an RFQ is wasting time.

Vern,

Do you believe 52.212-3 is required for commercial item RFQs?

Do you believe 52.212-1 is required for RFPs when using Simplified Acquisition Procedures?

Just to make this issue more confusing, I checked the clause matrix in part 52. The provision is listed with "A" for "as applicable" under Simplified Acquisition procedures!

How does that make the issue more confusing? Of course it's A for Applicable. You might be soliciting offers instead of quotes. If you're soliciting quotes it's not applicable.

Do you believe 52.212-3 is required for commercial item RFQs?

No. You don't need certs and reps in an RFQ. There is no prescribed procedure or format for requesting quotations. An RFQ is a solicitation of information. Based on the information a CO will decide either to issue a purchase order or an RFP or do something else. The CO will need certs prior to making an award, but he or she can obtain them at any time prior to award. You don't have to use SF1449, either.

Do you believe 52.212-1 is required for RFPs when using Simplified Acquisition Procedures?

Not without extensive tailoring. For example, paragraphs (f), (g), and (l) are not ordinarily applicable in simplified acquisitions.

Vern,

Do you believe 52.212-3 is required for commercial item RFQs?

Do you believe 52.212-1 is required for RFPs when using Simplified Acquisition Procedures?

As I read FAR 12.302, "Tailor of provisions and clauses for the acquisition of commercial items," the ONLY provisions that are required to be included, unchanged, are those specifically called out from 52.212-4: Assignments, Disputes, Payments, Invoice, and compaliance with other laws unique to gov't contracts. 12.302(a) allows tailoring to adapt to each acquisition. In a situation where all we really need is to include things like the NAICS Code, DUNS #, CCR, etc., we find it easier to simply include JUST the language we want rather than starting with 52.212-1 and trying to modify it to fit. I guess in a sense that is including a tailored version of 52.212-1; we just don't call it that.

I also go back to 12.301, which requires us, to the maximum extent practicable, to only include clauses that are required to implement the law or EOs or are consistent with commercial practice.

While I strongly believe that very few acquisition professionals are stupid, lazy or ignorant, I do think that we too often see a reliance on matrices, automated contract writing systems, etc. For example, I continue to see the clause providing for a price evaluation adjustment for Small Disadvantaged Business included in DoD solicitations, even though DoD has suspended that provision for years and issues a new memo to that effect every spring.

I might add that I think FAR 12.301 uses the word "solicitation" in the sense of only RFP, not RFQ. Why do I say that? Because when you make an integrated reading of FAR Part 12.301 and 52.212-1, it is clear that they address the solicitation of offers, not quotes.

While I'm at it, please note that FAR 12.301( does not say "shall" or "must."

Vern,

Sorry for being thick, but bear with me. You?re battling against a lot of training, internal policy, and examples of what is required. And not just with me.

FAR 12.301(b )(1) says that 52.212-1 is "to be used when soliciting offers for commercial items... ." Offers, vbus, not quotes.

I can accept this as an extension of the prescription, especially since the reference in the provision text reads: "As prescribed in 12.301(b )(1), insert the following provision." Though why was the same language was not used at 12.301(b )(2) to extend the prescription of 52.212-3? You said that 52.212-3 was also not required for RFQs but that a CO would need to obtain reps and certs before making an award. Do you believe it was the intent that every CO would draft their own language in RFQs stating that reps and certs would need to be completed by the quoter before receiving an award?

You cannot read 12.603(c )(2) to require the use of 52.212-1 when soliciting quotes...

I had included the language at 12.603(c )(2) in the discussion not as a requirement to include the provision, but as evidence that the intent was that COs would include the provision in RFQs as well. 12.603(c )(2)(viii) states that a contracting officer shall include a statement that 52.212-1 applies to the acquisition, regardless of whether the CO stated the solicitation type was RFP or RFQ.

...the provision includes rules that do not apply to quotes, such as the late bid rule, which speaks of offers and modifications, revisions, and withdrawals of offers, not quotes.

I agree. Using the provision for RFQs would require significant tailoring of those sections.

While I'm at it, please note that FAR 12.301(b ) does not say "shall" or "must."

Do you believe that to be deliberate? Does the lack of ?shall? or ?must? imply that it it should be read to mean ?should? or ?may??

Do you believe it was the intent that every CO would draft their own language in RFQs stating that reps and certs would need to be completed by the quoter before receiving an award?

Do you believe that to be deliberate? Does the lack of “shall” or “must” imply that it it should be read to mean “should” or “may”?

vbus: I have no beliefs in those regards. I don't know about the intent. The person/people who wrote that language may not have had any specific intent. They simply may not have thought it through or thought about it at all. Based on the use of the word "offer" in 12.301(, I would say that they probably didn't think about RFQs at all.

RFQs are in a kind of twilight zone. They are used mainly in simplified acquisition, where there really are very few rules. Although FAR Part 2 includes RFQs among "solicitations," neither FAR Part 14 or 15 make any mention of them, and FAR Part 12 mentions them only once, and in passing, in 12.603. Unlike RFPs, see FAR 15.203 and 15.204, FAR does not prescribe a standard format or boilerplate content for RFQs. FAR Part 13 mentions RFQs twice, in FAR 13.101((1), which tells contracting officers to incorporate provisions and clauses by reference in contracts and "in awards under requests for quotations," but not in RFQs themselves, and in FAR 13.307, which says that either the SF1449 or SF18 "may" be used.

In short, except for what may be in agency FAR supplements, there are not many rules for the preparation of RFQs or for RFQ procedures. The content of FAR is sometimes internally incongruous. When that is the case, we have to make as much sense of it as we can. It makes no sense to use FAR 52.212-1 in RFQs.

vbus: I have no beliefs in those regards. I don't know about the intent. The person/people who wrote that language may not have had any specific intent. They simply may not have thought it through or thought about it at all. Based on the use of the word "offer" in 12.301(, I would say that they probably didn't think about RFQs at all.

RFQs are in a kind of twilight zone. They are used mainly in simplified acquisition, where there really are very few rules. Although FAR Part 2 includes RFQs among "solicitations," neither FAR Part 14 or 15 make any mention of them, and FAR Part 12 mentions them only once, and in passing, in 12.603. Unlike RFPs, see FAR 15.203 and 15.204, FAR does not prescribe a standard format or boilerplate content for RFQs. FAR Part 13 mentions RFQs twice, in FAR 13.101((1), which tells contracting officers to incorporate provisions and clauses by reference in contracts and "in awards under requests for quotations," but not in RFQs themselves, and in FAR 13.307, which says that either the SF1449 or SF18 "may" be used.

In short, except for what may be in agency FAR supplements, there are not many rules for the preparation of RFQs or for RFQ procedures. The content of FAR is sometimes internally incongruous. When that is the case, we have to make as much sense of it as we can. It makes no sense to use FAR 52.212-1 in RFQs.

VERN-

I agree with your first and third paragraphs, but in your second paragraph, you opine incorrectly on FAR 13.101(. First, I think you have a typo in your citation, referring to 13.101((1). I think you mean 13.101((2). Secondly, 13.101((2) doesn't tell contracting officers to incorporate provisions and clauses by reference in contracts, it tells contracting officers to incorporate provisions and clauses by reference in solicitations. As you note, FAR Part 2 includes RFQs among "solicitations." FAR 13.101( does say "should," though, not "shall."

Nevertheless, it makes no sense to use 52.212-1 in RFQs.

.

I scan through a couple of RFQ's from the Army's asfi site a week, on average.

Usually, the only indication that something is an RFQ, and not an RFP, is the check mark in Block 14 of the SF 1449. The RFQ's that I see usually have all the Part 12 clauses, with no tailoring, including an explanation of the evaluation scheme. They mostly require technical proposals and certifications.

When I worked in a federal contracting office last, management explained the difference between an RFQ and an RFP as being how much the Government had to tell any prospective or actual quoters or offerors about the selection process.

Consequently, almost everything under the "Test" SAT for Part 13.5, $5.5 Million, was an RFQ, but had all the clauses and provisions of an RFP. If a quoter simply quoted a price, they would be nonresponsive.

It seems to me that someone who quotes on an RFQ that includes the untailored Part 12 clauses is entitled to a debriefing, and protection against post hoc extensions (read: compliance with the "late-is-late" rule) if the RFQ says they are.

.

Can anybody find an RFQ for a commercial item issued on a SF 1449 that does not incorporate FAR 52.212-1 (either by reference or in full text)?

Can anybody find an RFQ for a commercial item issued on a SF 1449 that does not incorporate FAR 52.212-1 (either by reference or in full text)?

Note that box #27a on the SF1449 does not let you include the clause 52.212-4 without also including the provision 52.212-1. Designed that way?

I know, that's why I'd be surprised to find an RFQ issued on a SF 1449 that did not incorporate FAR 52.212-1.

Navy,

I did say 13.101((1) when I meant ((2). Thanks. My bad.

And I typed "contracts" when I should have typed "solicitations." Thanks again. To me, ((2) appears to make a distinction between solicitations and requests for quotations because of the wording "in solicitations and in awards under under requests for quotations." Why say in solicitations and in awards under RFQs? Why not say in solicitations and in awards? I don't argue that RFQs are not solicitations, but I do not change my opinion in light of my mistakes. Think of my second paragraph as dicta.

Readers might be interested to learn that the definition of solicitation in FAR 2.101 was added to FAR in 2002 by FAC 2001-06 as one of the changes made to clarify 'definitions that are used in the FAR for sealed bid and negotiated procurements." See 67 FR 13954, March 20, 2002. Prior to that, there was no generally applicable definition of solicitation in FAR. The language of FAR 13.101((2) predates the definition of solicitation.

Actually, Navy_Contracting_4 gets credit for the correction.

Criminy, I'm losing it! Thanks, Navy. And thanks, Don, for telling me it was Navy. I went back and edited the post to give credit to Navy.

Note that box #27a on the SF1449 does not let you include the clause 52.212-4 without also including the provision 52.212-1. Designed that way?

I think we can presume so.

In light of all the interesting things to talk about in acquisition--see, for example, OMB's new memoranda about acquisition--why are we still talking about whether or not to use a particular solicitation provision in an RFQ when everyone seems to have conceded that the provision is not suitable for RFQs?

We're into the third page of this discussion. Aren't we smarter and more interesting than this?

Navy,

I did say 13.101((1) when I meant ((2). Thanks. My bad.

And I typed "contracts" when I should have typed "solicitations." Thanks again. To me, ((2) appears to make a distinction between solicitations and requests for quotations because of the wording "in solicitations and in awards under under requests for quotations." Why say in solicitations and in awards under RFQs? Why not say in solicitations and in awards? I don't argue that RFQs are not solicitations, but I do not change my opinion in light of my mistakes. Think of my second paragraph as dicta.

Readers might be interested to learn that the definition of solicitation in FAR 2.101 was added to FAR in 2002 by FAC 2001-06 as one of the changes made to clarify 'definitions that are used in the FAR for sealed bid and negotiated procurements." See 67 FR 13954, March 20, 2002. Prior to that, there was no generally applicable definition of solicitation in FAR. The language of FAR 13.101((2) predates the definition of solicitation.

A bit off topic but I noticed OFPP made the distiction between solicitation and request for quotation in their July 29, 2009 memo on "Improving Government Acquisition". This is from their memo:

' .... Using FY 2008 achievements as a baseline, agencies should aim to reduce by at least 10 percent the combined share of dollars obligated through new contracts in FY 2010 that are: (1) awarded noncompetitively and/or receive only one bid in response to a solicitation or a request for quote, (2) cost-reimbursement contracts or (3) T&M/LH contracts.

In light of all the interesting things to talk about in acquisition--see, for example, OMB's new memoranda about acquisition--why are we still talking about whether or not to use a particular solicitation provision in an RFQ when everyone seems to have conceded that the provision is not suitable for RFQs?

We're into the third page of this discussion. Aren't we smarter and more interesting than this?

Vern,

If everyone who issues an RFQ on a SF 1449 is incorporating an unsuitable solicitation provision, then I would say that is interesting.

I use the generic term 'vendor' to describe all companies/businesses in general --- however, I use the term 'contractor' to refer specifically to vendors that actually have (or have held) a Government contract.

To my way of thinking... an 'offeror' is a vendor who submits a proposal/bid/"offer" in response to a Solicitation. But, when an offeror is selected (and upon award of a Government contract), said offeror is then re-designated as a 'contractor'.

Further, ANY company that actually performs on a Government contract is considered a 'contractor' (IMHO). Those without a Government contract are simply referred to as vendors/companies/businesses/firms/etc.

...just my 2 cents...

I use the generic term 'vendor' to describe all companies/businesses in general --- however, I use the term 'contractor' to refer specifically to vendors that actually have (or have held) a Government contract.

To my way of thinking... an 'offeror' is a vendor who submits a proposal/bid/"offer" in response to a Solicitation. But, when an offeror is selected (and upon award of a Government contract), said offeror is then re-designated as a 'contractor'.

Further, ANY company that actually performs on a Government contract is considered a 'contractor' (IMHO). Those without a Government contract are simply referred to as vendors/companies/businesses/firms/etc.

...just my 2 cents...

You can't buy a piece of bubblegum with 2 cents.

You can't buy a piece of bubblegum with 2 cents.

Yeah but unless you are at a gas station or a store with a penny jar, you cant buy lots of things without the last two cents to pay for it. The last two cents might mean they wont sell it to you. That is a sign that the clerk will have to make up the difference.

I'm a negotiator. If I was short only 2 cents, I would get my bubblegum and bargain for a second piece.

I'm a negotiator. If I was short only 2 cents, I would get my bubblegum and bargain for a second piece.

Vern, the problem is that most clerks don't have any authority to negotiate with you or me.

In one of my Business Law courses, we learned that posted prices are negotiable, not set. However the employee must have authority to bargain, which they don't and most clerks cant override the price scanner to change the price. They must make up any difference between the till and the cash register tape. Smart ones will put out a "penny dish" to collect odd cents to help out those who are "2 cents short".

Interesting read!

In regard to "vendor", , , , some years ago I started work at a new company. My previous experience said that suppliers were "vendors". I was quickly corrected by my new boss; "Vendors are those who sell hot dogs on street corners. We deal with sellers."

And in regard to offer versus quote, , , , I still go around in circles with folks at my current job. There are those who will only issue RFPs as a matter of self importance, even though the requirement is for a standard drawing item with no mysteries involved, and all they are looking for is a "quote" anyway. At my previous job with a Very Large Contractor we dealt with sellers who had been "onboard" for decades and they knew how to work the system better than most employees! Well, , , , one of the new guys who came from another division issued a RFP for some standard parts and subsequently made an award to the lowest evaluated bidder without any further contact or discussions with the "losers". And well, , , , every one of the "losers" (all small businesses) wanted an "official" debrief as to why they did not get the job, which caused a really big stir in otherwise calm waters. All of the procurement group was called into an immediate, mandatory, meeting and were instructed in rather strong language that no one in the building was to ever issue a "RFP" again.

Vern, the problem is that most clerks don't have any authority to negotiate with you or me.

In one of my Business Law courses, we learned that posted prices are negotiable, not set. However the employee must have authority to bargain, which they don't and most clerks cant override the price scanner to change the price. They must make up any difference between the till and the cash register tape. Smart ones will put out a "penny dish" to collect odd cents to help out those who are "2 cents short".

Listen to you! "Most" clerks don't have authority. How do you know that? How many of the world's clerks have you spoken to? In any case, that's why the words, "Where's your boss?" were first spoken.

I'm a negotiator. I've negotiated a discount for a toilet commode at a hardware store. I've negotiated a discount on a suit at Brooks Brothers. You're talking to a disciple of Chester Karras: ?In business, you don't get what you deserve, you get what you negotiate.?

In regard to "vendor", , , , some years ago I started work at a new company. My previous experience said that suppliers were "vendors". I was quickly corrected by my new boss; "Vendors are those who sell hot dogs on street corners. We deal with sellers."

I've heard this before and find it baffling. Merriam-Webster, for example, defines a vendor as a "seller." 72A reporting, electronic mod submission, etc., is handled through GSA's vsc.gsa.gov, the Vendor Support Center.