Can a construction contract be solicited and awarded as a commercial buy using FAR part 12 as the authority? If so, are there any limitations that I should be aware of?
Since we do not have all of the facts pertaining to your requirement, solicitation/contract or contractor(s), the following answer is based solely on the background and question provided. As we do not have access to the
contract folder or particulars that apply to this situation, we highly recommend you consult the Contracting Officer and possibly the Legal Office.
From time to time, the question arises about using FAR 12 for construction acquisition. Many will state that the FAR is "silent" regarding the issue. This is largely true when you are seeking out words on a page to prove your point. However, when looking at the FAR in toto, we must ask ourselves, "What is the proper way to proceed in my acquisition?" Just because the FAR is silent on an issue doesn't give license to fill the holes with just anything. We need to ask ourselves, "Is there any other established guidance that I must follow?" In this case, there is. The Office of Federal Procurement Policy has an active memorandum that addresses the use of commercial item procedures in construction requirements. See the memorandum on the OFFP website at
In short, the memorandum states that construction contracting, for the most part, is not considered "commercial." It further states, "Part 36 incorporates provisions and clauses that are generally consistent with customary commercial practices in the construction industry. Part 12 could be used in limited circumstances involving construction contracting -- primarily for routine alteration and repair services as well as for acquisitions of commercial
construction materials and associated ancillary services."
It is not abundantly clear whether the enquirer's contract would fit the exemptions offered in the memorandum. That would be a call made by the assigned contracting officer.
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