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solicit as noncommercial; award as commercial?


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Background: solicitation was issued on SF33 as a noncommercial item. Apparently no market research was conducted, as the solicitation is for ... a switch. The buyer apparently believes that because it goes on a military aircraft, it cannot be commercial.

Contractor submits a proposal along with a commercial item justification, and wants the contract awarded as a commercial item contract, with only the clauses and requirements that apply to commercial items. Buyer says this can't be done - a change would have to be made the military database; it would take several months because it has to be approved through the Navy, Airforce...etc; it has to go through all the military branches engineering department for approval to change this part number; and so on.

Question: if the contractor proposes the item as a commercial item and satisfactorily justifies it, can a contract be awarded that deletes the clauses that are inapplicable to commercial item acquisitions?

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Guest Vern Edwards

See FAR 12.102(a) and (b). COs shall acquire commercial items pursuant to Part 12. If the item is a commercial item, then the CO must acquire it pursuant to FAR Part 12. Application of Part 12 is not optional.

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True, but they've already started down the wrong path. The question is how do you get on the right path? I'm not government, so I don't know if the lengthy and complicated process cited above is correct, or whether they just don't want to bother (or admit it's commercial). If it's actually that complicated, then I suspect their answer will be to reject the commercial item justification.

So - can a solicitation that starts off on an SF33 be awarded as a commercial item by deleting the inapplicable clauses (and probably adding 542.212-4)? If not, can this simply be cancelled and re-solicited under Part 12 without the lengthy process above?

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Guest Vern Edwards
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So - can a solicitation that starts off on an SF33 be awarded as a commercial item by deleting the inapplicable clauses (and probably adding 52.212-4)?

If the solicitation was competitive, then the answer is no. See FAR 15.206. The CO should cancel the solicitation and start over in compliance with 15.206(e).

If the solicitation was noncompetitive, then the CO and the contractor can simply agree to commercial item terms, even though the RFP was issued with noncommercial item terms.

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