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    Given the response to the other question that utility services do not meet the definition of a service contract per part 37 (“Service contract” is defined in FAR 37.101 as “a contract that directly engages the time and effort of a contractor whose primary purpose is to perform an identifiable task rather than to furnish an end item of supply.”) wouldn't that lead to the conclusion that contracts awarded under FAR 41, as are construction contracts (which, like utility services, are not cross referenced in the section of FAR 37 that discusses guidance on specific types of service contracts) a separate and distinct type of contract and not contracts for services?


    Answer

    (Note: The following response was provided as part of a response to additional information received from the submitter, outside of AAP.)

    While I understand the "...directly engages the time and effort..." point, it could have been written that way not necessarily to fully describe what a service is...but rather to more emphatically distinguish a service from a supply.  The point about Part 41 not being mentioned in 37.000 is well-taken. On the other hand, it may be that Part 41 was left out because Part 41 is an exception in that it does NOT take precedence over FAR Part 37 in the case of inconsistencies. Not probable, but possible. The definition of "service contract" at FAR 37.101 provides some examples of a service, of which "communication services" is one. Do communication services (think cellular service) "...directly engage the time and effort...?" They don't, just as utilities services don't. If anything, utilities require even more direct time and effort when it comes to operating and maintaining power plants (think water and heat).

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