Using FAR Parts 8, 12, 13, and 15 Together

What do you mean by "use FAR Parts 8, 12, 13, and 15 together"? "Together" in what sense?

Yeah, I'm wondering, too.

If you're in subpart 8.4, stay there -- don't bring in 12, 13, or 15.  See FAR 8.404(a).

Part 12 can only be used with parts 13, 14, or 15.  See FAR 12.102(c).

For 13 and 15, see FAR 13.106-2(b)(1).

I intend to highlight the major differences between them in regards to solicitation methods, dollar thresholds, competition requirements, evaluation methods etc. I'm supposed to speak to when/how you would use 15 and 12 together/13 and 12 together/8 and 12 together. Also, when you would not use them together. For instance, you wouldn't typically follow 13 and 15 procedures together on the same acquisition.

metrics said:

I'm supposed to speak to when/how you would use 15 and 12 together/13 and 12 together/8 and 12 together.

Reminder 👇

ji20874 said:

Part 12 can only be used with parts 13, 14, or 15.  See FAR 12.102(c).

metrics said:

I intend to highlight the major differences between them in regards to solicitation methods, dollar thresholds, competition requirements, evaluation methods etc.

Simply speaking:

FAR 12:

If commercial it shall be used - "12.102 Applicability. (a) This part shall be used for the acquisition of supplies or services that meet the definition of commercial items at 2.101." Other parts of the FAR do not apply to commercial acquisitions (12.102 (c)). Ex - FAR 49 doesn't apply to commercial terminations (12.403), no matter if you use it with 13, 14 or 15 procedures. 

If a company has what you need, you go commercial - Palantir_17-1465.Opinion.9-13-18.pdf (uscourts.gov)

FAR 13:

MPT through SAT/Single Source/RFQ/Quotations/None-Burdensome Eval/Comparative Analysis (if you treat it like 15 (factors/scoring), so will the legal system (GAO/COFC).

FAR 13.5

SAT through $7.5M (non-commercial)/$15M (commercial)RFQ/Quotations/Sole Source (FAR 6)/None-Burdensome Eval/Comparative Analysis (if you treat it like 15 (factors/scoring), so will the legal system (GAO/COFC).

FAR 14:

No associated thresholds/Sole Source/IFB/Offers/Opening of Bids/Price Alone/Two-Step Bidding. 

FAR 15:

No associated thresholds/Sole Source/RFP/Offers/LPTA/Trade-Off/Discussions/Negotiations/Competitive Range/Source Selection.

See this: Competitive Processes in Government Contracting: The FAR Part 15 Process Model and Process Inefficiency.

Thank you all!

Quote

I'm supposed to speak to when/how you would use 15 and 12 together/13 and 12 together/8 and 12 together.

FAR 8 is commercial only.  So mentioning 12 together with 8 is confusing.  
Actually GSA based FSS MAS contracts on only commercial items a long time before FAR part 12 existed.

On 4/17/2021 at 7:48 AM, formerfed said:

FAR 8 is commercial only.  So mentioning 12 together with 8 is confusing.

Maybe yes, maybe no.  In fact one could include discussion of FAR 13, 14 and 15 as well as 12 with 8 as you can add open market to a GSA order.  Why you can add open market items to a GSA FSS order.   Ref.   FAR 8.402(f)

Can construction work above $2K and below SAT be done via FAR 13 procedures? If so, what is the standard form to be used? A SF-1449 is for commercial items and a SF-1442 can only be marked as an IFB or RFP, FAR 14 & 15 respectively. Any guidance on the topic would be greatly appreciated.

On 5/9/2021 at 6:23 PM, GABESON said:

Can construction work above $2K and below SAT be done via FAR 13 procedures? If so, what is the standard form to be used? A SF-1449 is for commercial items and a SF-1442 can only be marked as an IFB or RFP, FAR 14 & 15 respectively. Any guidance on the topic would be greatly appreciated.

Don't forget to consult your agency's specific guidance. 

Yes - FAR 13.000 "This part prescribes policies and procedures for the acquisition of supplies and services, including construction, research and development, and commercial items, the aggregate amount of which does not exceed the simplified acquisition threshold. . . "

Forms - FAR 13.307(b) "Other than commercial items. (1) Except when quotations are solicited electronically or orally, the SF 1449; SF 18, Request for Quotations; or an agency form/automated format may be used. Each agency request for quotations form/automated format should conform with the SF 18 or SF 1449 to the maximum extent practicable."

Constricting Officer said:

Yes

Also FAR Part 53.236-1.....

 OF 347 (Rev.2/2012), Order for Supplies or Services. OF 347, prescribed in 53.213(f) (or an approved agency form), may be used for contracts under the simplified acquisition threshold for-

           (1) Construction, alteration, or repair; or

           (2) Dismantling, demolition, or removal of improvements, as specified in 36.701(b)

On 4/14/2021 at 1:34 PM, ji20874 said:

If you're in subpart 8.4, stay there -- don't bring in 12, 13, or 15.  See FAR 8.404(a).

If the OP, metrics, is DoD they will use FAR Subpart 8.4 with FAR Subpart 15.4. (DoD Class Deviation 2014-O0011)

On 4/14/2021 at 1:34 PM, ji20874 said:

Part 12 can only be used with parts 13, 14, or 15.  See FAR 12.102(c).

Also, this can be a little misleading. FAR Subpart 8.4 involves FAR Part 12. “To the extent there is any perceived inconsistency between FAR Subpart 8.4 and FAR Part 12, FAR Part 12 controls.“ (CGI Federal, Inc. v. United States, CAFC No. 2014-5143, March 10, 2015)

Jamaal Valentine said:

If the OP, metrics, is DoD they will use FAR Subpart 8.4 with FAR Subpart 15.4. (DoD Class Deviation 2014-O0011)

Also, this can be a little misleading. FAR Subpart 8.4 involves FAR Part 12. “To the extent there is any perceived inconsistency between FAR Subpart 8.4 and FAR Part 12, FAR Part 12 controls.“ (CGI Federal, Inc. v. United States, CAFC No. 2014-5143, March 10, 2015)

Jamaal, I think that you are reaching a bit. Generally speaking general and trade construction activities do not meet the FAR part 2 definition of “commercial item”, particularly per DoD policy, even though most materials and pieces of equipment are commercial items.

You can purchase those individual materials as commercial items. You can probably repair or maintain those individual items using FAR 12. You could probably develop a list of materials for a construction project, purchase them as commercial items and provide them to a construction contractor as GFE, although I wouldn’t advise that. 

But general or trade construction activities to incorporate them (other than perhaps an individual item) into real property facilities generally doesn’t constitute a commercial service.

So Part 12 doesn’t override Part 13 or subpart 8.4 for “construction”, pertaining to real property, with reference to GABESON’s question. 

EDIT: I probably misinterpreted the intent or context  of Jamaal’s post. He was specifically responding to comments made prior to GABESON’s post last Sunday, concerning small construction contracts. If so, excuse me please! 🤠

Deleted - Jamaal was not referring to GABESON’s question.

joel hoffman said:

Jamaal, I think that you are reaching a bit. Generally speaking general and trade construction activities do not meet the FAR part 2 definition of “commercial item”, particularly per DoD policy, even though most materials and pieces of equipment are commercial items.

They seem to meet the FAR Part 2 definition to me. That’s not to suggest that FAR Part 12 should be used for FAR Part 36 construction. Where do you find they don’t meet the definition?

https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/assets/OMB/procurement/far/far_part12.pdf

joel hoffman said:

So Part 12 doesn’t override Part 13 or subpart 8.4 for “construction”, pertaining to real property, with reference to GABESON’s question.

Does FAR Subpart 8.4 include construction?

joel hoffman said:

EDIT: I probably misinterpreted the intent or context  of Jamaal’s post. He was specifically responding to comments made prior to GABESON’s post last Sunday, concerning small construction contracts. If so, excuse me please! 🤠

You are correct. I wasn’t commenting on the construction discussion that followed; I was just responding to ji’s commentary up to that point.

Construction is clearly commercial. It's the most commercial thing the government buys.

The problem is that the FAR councils didn't write Part 12 clauses appropriate for construction. FAR 52.212-4 is not appropriate.

When FAR Part 12 was drafted back in 1995 or 1996, the drafters and others associated with them did not consider a building to be a commercial item or construction to be a commercial service -- so from that perspective, NO, FAR Part 12 does not cover construction.  And Vern is right -- FAR 52.212-4 is wholly inappropriate for construction -- I actually think FAR Part 36 is good for construction.

But FAR parts 13, 14, and 15 may all be used for construction under the general oversight of FAR part 36.

ji20874 said:

I actually think FAR Part 36 is good for construction.

Agreed. FAR Part 36 includes concepts and principles that align with commercial construction.

Jamaal Valentine said:

Agreed. FAR Part 36 includes concepts and principles that align with commercial construction.

In 2003, OMB issued a memo regarding the use of Part 12 or Part 36 for construction. I'm paraphrasing, but it basically says that even though construction is commercial, Part 12 is inappropriate for construction and Part 36 should be used in most cases. It noted that Part 36 was already consistent with "customary commercial practices in the construction industry."

Jamaal Valentine said:

Agreed. FAR Part 36 includes concepts and principles that align with commercial construction.

I don’t disagree.  It’s just that Part 12 for Commercial Items doesn’t apply to construction or to A/E services acquisition for that matter.

The definition of commercial item in FAR2.101 excludes “real property”. 

“Commercial item means— 

(1) Any item, other than real property...”

“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).”

The definitions of real property across the government and in dictionaries generally refer to real property as land and improvements to them including buildings and structures, consistent with the construction definition above. They do distinguish between permanent construction and personal property like relocatable buildings that are not permanently attached to the land, trailers, etc. That’s pretty consistent with IRS definitions, real estate, property taxes, etc.

However,  the contract laws for commercial (and residential) construction are not consistent across all states and jurisdictions and contractual terms and conditions also vary, depending upon whose standard contract formats and risk allocation are drafted and used. There are contract formats by the construction industry, the American Institute of Architects, the Design-Build institute of America, the other design disciplines, various cities and states, etc. 

One can guess whose interests are addressed by the drafting party...😁

Fara Fasat said:

In 2003, OMB issued a memo regarding the use of Part 12 or Part 36 for construction.

I provided a link to it in my earlier response to Joel.

joel hoffman said:

The definition of commercial item in FAR2.101 excludes “real property”. 

“Commercial item means— 

(1) Any item, other than real property...”

“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,

Excludes real property as an item (supplies under paragraph 1), right? Construction is a service. What about the other commercial paragraphs? For example, commercial services under paragraph (5).

Jamaal Valentine said:

Excludes real property as an item (supplies under paragraph 1), right? Construction is a service. What about the other commercial paragraphs? For example, commercial services under paragraph (5).

(2) through (5) are directly related to (1). 

I’m not saying that a typical service contract to inspect or repair an individual item couldn’t be a commercial service. Go back to what I originally said.

You could probably have monthly or quarterly services to inspect fire systems or change A/c filters in a building or to make a plumbing or A/C service call. Those are often individually priced services. That’s not construction. It’s O&M type services.

Stay tuned...there is an open DFARS Case 2019-D034 on the topic.

"212, 236, 252 (S) Preference for 
Commercial Construction Services
Partially implements section 876 of the NDAA for FY 2017 (Pub. L. 114-328) regarding the preference for 
the acquisition of commercial construction services. 
04/19/2021 DARS Regulatory 
Control Officer identified issues with 
draft proposed rule to case 
manager. Case manager and 
DARS Regulatory Control Officer 
resolving issues."

FAR-flung 1102 said:

Stay tuned...there is an open DFARS Case 2019-D034 on the topic.

Stay tuned?  For how long? 😂

This was part of the 2017 NDAA from December 2016 I think.  So 4.5 years later the DFARS council can’t incorporate something by now?

On 5/13/2021 at 4:23 PM, joel hoffman said:

(2) through (5) are directly related to (1). 

I’m not saying that a typical service contract to inspect or repair an individual item couldn’t be a commercial service. Go back to what I originally said.

What do you mean that (2) through (5) are directly related to (1)? The semicolon let’s us know they are related in thought, but independent.

I’m not sure why you’re mentioning typical service contract to inspect or repair ... I never raised that and only was seeking to better understand something you stated:

On 5/13/2021 at 8:00 AM, joel hoffman said:

Jamaal, I think that you are reaching a bit. Generally speaking general and trade construction activities do not meet the FAR part 2 definition of “commercial item”