Is advertising on social media considered a supply or service and does it require a contract or terms of service?
Thank you for your question.
Advertising via Facebook (FB) is typically considered a paid advertisement and is very similar to a subscription (see FAR subpart 5.5) . Per FAR subpart 5.5, it appears that this is considered a Service and not a Supply item. The contracting officer should make this determination.
Before contracting out for advertising on FB, I highly recommend that you contact your Public Affairs office to review their processes and procedures pertaining to advertising and the possible use of FB. Also, recommend contacting the office/unit responsible for communications/signal. The communication/signal office/unit is typically responsible for ensuring that your media message complies with the Section 508 Rehabilitating Act Compliance. Lastly, please ensure legal coordinates on your action for legal sufficiency.
Please see FAR subpart 5.5 language below concerning definitions, authority, procedures, and use of advertising agencies. FAR 5.504(a) and (c) refers to the possible use of a BPA.
As used in this subpart—
“Advertisement” means any single message prepared for placement in communication media, regardless of the number of placements.
(1) The placement of an advertisement in a newspaper, magazine, trade or professional journal, or any other printed medium; or
(2) The broadcasting of an advertisement over radio or television.
(a) Newspapers. Authority to approve the publication of paid advertisements in newspapers is vested in the head of each agency (44 U.S.C. 3702). This approval authority may be delegated (5 U.S.C. 302(b)). Contracting officers shall obtain written authorization in accordance with policy procedures before advertising in newspapers.
(b) Other media. Unless the agency head determines otherwise, advance written authorization is not required to place advertisements in media other than newspapers.
(1) Orders for paid advertisements may be placed directly with the media or through an advertising agency. Contracting officers shall give small, small disadvantaged, women-owned, veteran-owned, HUBZone, and service-disabled veteran-owned small business concerns maximum opportunity to participate in these acquisitions.
(2) The contracting officer shall use the SF 1449 for paper solicitations. The SF 1449 shall be used to make awards or place orders unless the award/order is made by using electronic commerce or by using the Governmentwide commercial purchase card for micropurchases.
(b) Rates. Advertisements may be paid for at rates not over the commercial rates charged private individuals, with the usual discounts (44 U.S.C. 3703).
(c) Proof of advertising. Every invoice for advertising shall be accompanied by a copy of the advertisement or an affidavit of publication furnished by the publisher, radio or television station, or advertising agency concerned (44 U.S.C. 3703). Paying offices shall retain the proof of advertising until the Government Accountability Office settles the paying office’s account.
(d) Payment. Upon receipt of an invoice supported by proof of advertising, the contracting officer shall attach a copy of the written authority (see 5.502(a)) and submit the invoice for payment under agency procedures.
5.504 Use of advertising agencies.
(a) General. Basic ordering agreements may be placed with advertising agencies for assistance in producing and placing advertisements when a significant number will be placed in several publications and in national media. Services of advertising agencies include, but are not limited to, counseling as to selection of the media for placement of the advertisement, contacting the media in the interest of the Government, placing orders, selecting and ordering typography, copywriting, and preparing rough layouts.
(b) Use of commission-paying media. The services of advertising agencies in placing advertising with media often can be obtained at no cost to the Government, over and above the space cost, as many media give advertising agencies a commission or discount on the space cost that is not given to the Government.
(c) Use of noncommission-paying media. Some media do not grant advertising agencies a commission or discount, meaning the Government can obtain the same rate as the advertising agency. If the advertising agency agrees to place advertisements in noncommission-paying media as a no-cost service, the basic ordering agreement shall so provide. If the advertising agency will not agree to place advertisements at no cost, the agreement shall—
(1) Provide that the Government may place orders directly with the media; or
(2) Specify an amount that the Government will pay if the agency places the orders.
(d) Art work, supplies, and incidentals. The basic ordering agreement also may provide for the furnishing by the advertising agency of art work, supplies, and incidentals, including brochures and pamphlets, but not their printing. “Incidentals” may include telephone calls, and postage incurred by the advertising agency on behalf of the Government.