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    The concern is not that the DBA (this was flowed down originally to the sub). The question is would it be unreasonable that the subcontract was issued as a commercial procurement since these type of tent structures are offered to the general public in different scenarios such as weddings, family reunions, rodeos, and state fairs? Does incorporating the DBA automatically make it a construction project?


    Answer

    Incorporating the former DBA (which is now called "Wage Rate Requirements (Construction)") does not automatically make a contract into a construction contract. Clauses can be inappropriately inserted into contracts but doing so does not change the actual nature of the requirement. The issue of whether the tent structures in question can reasonably considered commercial items rather than construction can be murky. We must consult the FAR definition of "Construction" at FAR 2.101. The definition states: "Construction does not include the manufacture, production, furnishing, construction, alteration, repair, processing, or assembling of...personal property." The question becomes: Are tents considered personal property (not construction) or real property (construction)? The FAR definition for "personal property" is "...property of any kind or interest in it except real property..." The definition of real property at 26 CFR § 1.856-10 - Definition of real property tells us that real property includes "land" and "improvements to land," with the latter indicating "inherently permanent structures." Ultimately, it's the contracting officer's responsibility to determine if a requirement meets the definition for personal property or real property. I recommend carefully reviewing the 26 CFR § 1.856-10 definition to properly categorize the building/assembly of the tent structures. 

     

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