FAR 52.212-2

[crisi13]

I have been researching FAR 52.212-2 and when to use it. According to the prescrption in FAR 12.301 ( c ), the Contracting Officer may use the clause when evlauation factors are appropriate. It also states that instead of 52.212-2, the Contracting Officer may include a similar provision containing all evaluation factors required by FAR 13.106, 14.2 or 15.3. My questions are:

1.) When would evaluation factors not be appropriate?

2.) What provisions are similar that contain evaluation factors in 13.106, 14.2 and 15.3?

Thanks!

[Don Mansfield]

1. If the acquisition were sole source.

[formerfed]

Another would be a "brand name" product without feasible "equals" and past performance doesn't matter - buying software licenses for example.

[crisi13]

Thanks, both of those make sense! In United Marine International LLC File: B-281512 Date: February 22, 1999, the GAO states "The optional clause (52.212-2), which is to be used when FAR part 15 type procedures may be contemplated, that is "when the use of evaluation factors is appropriate", FAR 12.301( c ) was not included or incorporated.

Is this saying that you should only use the clause if you're planning to use FAR Part 15? For example, if you're using LPTA as described in FAR 15.101-2, then you should include 52.212-2?

[napolik]

Is this saying that you should only use the clause if you're planning to use FAR Part 15? For example, if you're using LPTA as described in FAR 15.101-2, then you should include 52.212-2?

Let us look at the words GAO used in the United decision:

Quote

In particular, FAR subpart 12.3 sets forth four clauses which must be incorporated into solicitations for commercial items and one clause which is optional. As a general rule, such solicitations are to include "only those clauses . . . [r]equired to implement provisions of law or executive orders applicable to the acquisition of commercial items . . . or . . . [d]etermined to be consistent with customary commercial practice." FAR Sec. 12.301(a). FAR Sec. 12.301( lists the four mandatory clauses: (1) "Instructions to Offerors--Commercial Items" (FAR Sec. 52.212-1); (2) "Offeror Representations and Certifications--Commercial Items" (FAR Sec. 52.212-3); (3) "Contract Terms and Conditions--Commercial Items" (FAR Sec. 52.212-4); and (4) "Contract Terms and Conditions Required to Implement Statutes or Executive Orders--Commercial Items" (FAR Sec. 52.212-5). All of these clauses were incorporated by reference on the first page of the RFQ. The optional clause which is to be used when FAR part 15 type procedures may be contemplated, that is, "[w]hen the use of evaluation factors is appropriate," FAR Sec. 12.301?, was not included or incorporated.

Unquote

In this paragraph, the GAO lists an inventory of clauses that implement FAR 12.301(. In the final sentence, it notes that the Corps of Engineers? solicitation did not use FAR 52.212-2. The final sentence mentions FAR 15 not because FAR 52.212-2 must be used only in FAR Part 15 solicitations, but because the protestor, United Marine International LLC, alleged that the Corps "... violated a number of provisions in part 15 of the FAR ... " in its conduct of the procurement.

There is nothing in the prescription for the use of 52.212-2 that limits its use to FAR Part 15 procurements. See FAR 12.301( c ):

Quote

( c ) When the use of evaluation factors is appropriate, the contracting officer may

(1) Insert the provision at 52.212-2, Evaluation -- Commercial Items, in solicitations for commercial items (see 12.602); or

(2) Include a similar provision containing all evaluation factors required by 13.106, Subpart 14.2 or Subpart 15.3, as an addendum (see 12.302(d)).

Unquote

When you are doing an evaluation as described in FAR 15.101-2 (i.e. LPTA) for a commercial item procurement, you could use 52.212-2. However, you could also use " ... a similar provision containing all evaluation factors ... ".

If you are not doing a commercial item procurement and you are using FAR Part 15, you would insert in Section M of your solicitation a provision resembling FAR 52.212-2 that implements 52.215-1(f)(1).