The prescription for 52.208-9 states it is for supplies or services. When I look in the FAR Matrix there is nothing in the Fixed-Price Construction (FP CON) column. It only shows the clause is required when applicable for Fixed Price Supply, Cost Reimbursement Supply , Indefinite Delivery and SAP. That is why it is not listed on the Construction Checklist. One of my team mates reasoned that because the clause and prescription come from FAR Part 8 that it would not apply to construction. Door hardware items would appear in the construction specifications. The hardware is not a deliverable, but rather it is incorporated into the end item of construction. FAR Part 11 addresses items particular to one manufacturer for construction contracts. It is important for VA to support the Ability One program, but we are not sure it is required in this instance. Please advise.
FAR part 8 is a part of the FAR that shall be utilized prior to going to open market sources.
FAR 8.002(c) states “The statutory obligation for Government agencies to satisfy their requirements for supplies or services available from the Committee for Purchase From People Who Are Blind or Severely Disabled also applies when contractors purchase the supplies or services for Government use.”
You cannot hang your hat on the FAR matrix. A contract specialist/contracting officer must look at the prescription of each clause and the circumstance and make a decision whether to include the clause in their contract. FAR clause 52.208-9 is prescribed at FAR 8.005 and states use in solicitations and contracts that require a contractor to provide supplies or services for Government use that are on the Procurement List maintained by the Committee for Purchase From People Who Are Blind or Severely Disabled.
The door hardware contract is a recently approved contract for the Committee for Purchase From People Who Are Blind or Severely Disabled. This may be why this has not been established for construction in the past as a mandatory source.
Addressing your only one source issue, the authority for using this source is FAR part 6.302-5 (see FAR part below) exempts AbilityOne contracts from the requirements of the Competition in Contracting Act. Therefore this would not be considered a brand name and would not require a justification under 6.302-1.
6.302-5 -- Authorized or Required by Statute.
(1) Citations: 10 U.S.C. 2304(c)(5) or 41 U.S.C. 3304(a)(5).
(2) Full and open competition need not be provided for when
(i) A statute expressly authorizes or requires that the acquisition be made through another agency or from a specified source…
(b) Application. This authority may be used when statutes, such as the following, expressly authorize or require that acquisition be made from a specified source or through another agency:
(2) Qualified Nonprofit Agencies for the Blind or other Severely Disabled -- 41 U.S.C. 85, Committee for Purchase From People Who Are Blind or Severely Disabled (see Subpart 8.7)
Bottom line, yes you should include clause FAR 52.208-9 in your construction contract and the contracting officer shall identify in the contract schedule the door hardware that shall be purchased from a mandatory source and the specific source. A link to the catalog from the contractor in listed below.
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