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    I believe the situation in the scenario goes against the instructions for the 1449. Other than for a solicitation, should I be checking block 28 and requiring the vendor to sign blocks 30a, b,and c? Should I be doing this for an award? If I did not use the 1449 to solicit a quote is there any reason I should be filling out block 29 in the award phase? Can you please shed some light, with references if possible, on when it is and isn't appropriate to check blocks 28 and 29 as well as the requirement for the vendor to sign block 30?


    Answer

    The questioner was looking at guidance from the “Solicitation Preparation Guide for the Acquisition of Commercial Items by DoD” found at the DAU website (URL:  https://acc.dau.mil/CommunityBrowser.aspx?id=718699&lang=en-US).  She found the hyperlink to it in another AAP Question pertaining to the SF 1449.  However this guide is for SF 1449 solicitations, not SF 1449 awards.  So this is the reason for the confusion in the appropriate use of blocks 28 and 29, as stated in the question the question this is an award, not a solicitation.
     
    So where do you go for information on preparation of the SF 1449 as a Contract or Order for Commercial items?  After an exhaustive search I’ve discovered there is no comparable document to the solicitation guide for the use of the SF 1449 as an award instrument in DoD.  The GSA provides no “instructions” for the 2012 (current as of 2015) Version of the SF 1449 at their website that hosts the form.  I did find instructions for the 1995 Version of the SF 1449 on the internet, however those instructions are not valid for the 2012 Version.
     
    Several areas of the FAR address the use of the SF 1449 in general, none is specific enough to be considered instructions on how to fill it out.  A look at the DFARS and DFARS PGI doesn’t find specific instructions either.  Several of them refer to “agency procedures” so my guess is that specific (block by block) instructions are likely found in DFARS Supplements for the services or commands.  Some may even differ by electronic contract writing systems in how specific information is entered via an automated SF 1449.
     
    So based on this I believe that the guidance you were given on completing the SF 1449 is correct.  By having the contactor sign the SF 1449 it creates a bilateral contract action.  So if that is the direction from the Contracting Officer, it is not in conflict with the “instructions” contained at the DAU website.
     
    Also remember that the order of signatures of the government and contractor is reversed when issuing a Purchase Order, as opposed to a “C” (normal) or “D” (Indefinite Delivery) contract action.  This is because a Purchase Order is a legally binding “offer to buy” (vs Bids and Proposals which are legally binding “offers to sell”) from the government to the contractor.  A Purchase Order is only an “offer” until accepted by the contractor, then it becomes a legally binding contract, contractors may also reject Purchase Orders.  Even Purchase Orders issued in response to an RFQ, this is because unlike bids and proposals quotes are not legally binding.  So in a Purchase Order it is the government that makes the first legally binding offer, if accepted, through signature or “other” action (beginning performance or making delivery) it forms a legally enforceable contract action.


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