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I previously learned on this forum in this post that FAR 12.301 effectively limits the provisions/clauses to be used in commercial purchases to those provisions/clauses directly referenced in Part 12 (see FAR 12.301(d) where it says "Notwithstanding prescriptions contained elsewhere in the FAR, when acquiring commercial items, contracting officers shall be required to use only those provisions and clauses prescribed in this part"). As Don explained in that post, even if the prescription for a clause would normally apply to your award, you need not include it in a commercial award unless that clause is one of the few clauses listed in FAR 12. So you could effectively ignore the clause's prescription since 12.301 superceeds the actual prescription. Here is an example: 52.243-1 has the prescription "The contracting officer shall insert the clause at 52.243-1, Changes -- Fixed-Price, in solicitations and contracts when a fixed-price contract for supplies is contemplated". Just based on this prescription alone, it would seem you would want to put it in a commercial Fixed-Price award for supplies. However, since it is not a referenced clause within FAR Part 12, you actually should not include it in your award. To back up this determination, the FAR Clause Matrix in 52.3 has the Commercial Item column empty for this clause, thus showing it does not belong in a commercial award. The problem is that the FAR Clause Matrix in 52.3 is not consistant with the guideline set by 12.301. As an example (of which there are many), provision 52.204-7 has an "A" in the Commercial Item column of the FAR Clause Matrix. This would indicate that 52.204-7 is "required when applicable" in commercial item solicitations, based on its prescription. The prescription for 52.204-7 says "Except as provided in 4.1102 (a), use the provision at 52.204-7, System for Award Management, in solicitations." [Note that 4.1102(a) does not contain a commercial solicitation exception]. So should 52.204-7 be included in a commercial solicitation or not? 12.301 seems to say it should not be used, yet the Clause Matrix says it should be included in solicitations when applicable. Which takes precedence? If the Clause Matrix is correct and it should be included when applicable in commercial solicitations, why is 52.204-7 not listed in Part 12? Note that there are clauses in 12.301 that are "required when applicable" based on their prescription, so it is not as if 52.204-7 would be the only provision or clause listed in Part 12 that still needed its prescription evaluated before insertion in the commercial solicitation/contract. Edit: should be discrepancy, not discrepency, in the title. Looks like I can't change it at this point though.
I am helping a colleague put together a solicitation for a commercial IDIQ solicitation. Specifically, I have been tasked with putting together the clauses and provisions for the solicitation. FAR Subpart 12.3 is somewhat misleading (or, I am not reading it correctly, which is entirely possible) on the subject of using clauses and provisions other than the five 52.212 clauses/provisions. I am fully aware that clauses such as 52.216-19 and -22 can and should apply; however, I'm fuzzy on the other clauses that could apply (that is, "required when applicable") in an IDIQ situation. If this topic has been addressed somewhere other than this designated forum, please feel free to post the link and delete this topic. Thank you!
Many clause prescriptions specifically call out the fact that they should be placed in solicitations and contracts AS WELL AS Part 12 commercial solicitations/contracts. For example, the prescription for 252.232-7010 says "Use the clause at 252.232-7010, Levies on Contract Payments, in all solicitations and contracts, including solicitations and contracts using FAR part 12 procedures for the acquisition of commercial items." However there are other prescriptions which do not include it. For example, the prescription for 52.222-50 says "Insert the clause at 52.222-50, Combating Trafficking in Persons, in all solicitations and contracts." Is there a rhyme or reason as to when prescriptions include the "Part 12" language and when they do not? Would I want to include 252.232-7010 in my Part 12 commercial contract, but not 52.222-50 because its prescription does not specifically call out Part 12 actions? Or would I include both clauses because 52.222-50 still does say ALL solicitations and contracts? If the latter is the case, why even specifically call out Part 12 actions in some prescriptions if you would still want to add a clause that didn't specifically call them out? Does the inclusion of the "Part 12" language in a prescription have anything to do with topics already being covered in the commercial clauses (e.g. 52.212-4)? For example, the prescription for 52.243-1 says "The contracting officer shall insert the clause at 52.243-1, Changes -- Fixed-Price, in solicitations and contracts when a fixed-price contract for supplies is contemplated." However 52.212-4 already has a section on changes, and since FAR 12.102© says "Contracts for the acquisition of commercial items are subject to the policies in other parts of the FAR. When a policy in another part of the FAR is inconsistent with a policy in this part, this part 12 shall take precedence for the acquisition of commercial items", it would seem uneccessary to include 52.243-1 in the award if 52.212-4 was already included. Perhaps the FAR consistantly includes the "Part 12" language in prescrptions because those prescriptions without it are already covered by standard commercial clauses and don't need to be added?