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12.301 (d) "Notwithstanding prescriptions contained elsewhere in the FAR..."


ArrieS

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So FAR 12.301 (d) says "Other required provisions and clauses. Notwithstanding prescriptions contained elsewhere in the FAR, when acquiring commercial products or commercial services, contracting officers shall be required to use only those provisions and clauses prescribed in this part. The provisions and clauses prescribed in this part shall be revised, as necessary, to reflect the applicability of statutes and executive orders to the acquisition of commercial products or commercial services."

Does "Notwithstanding prescriptions contained elsewhere in the FAR..." mean the clauses not mentioned in FAR PART 12 can still be required, or not?

I have a draft solicitation that included 52.204-22 Alternate Line Item Proposal because the guidance states "Insert the provision at 52.204-22, Alternative Line Item Proposal, in all solicitations." but my PEER reviewer said to remove it. 

But they said to add other clauses, for example, 52.233-1, Disputes, which isn't in FAR Part 12.

I guess I don't understand how to determine if a clause or provision is prescribed for FAR Part 12.

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4 hours ago, ArrieS said:

But they said to add other clauses, for example, 52.233-1, Disputes, which isn't in FAR Part 12.

Yes it is. This clause is incorporated by reference in 52.212-4 (d).

I’m curious why your PEER reviewer wouldnt know that.**

Advise your PEER reviewer that there is no need to separately add or reference the Disputes clause.

** Oh…yeah…52.212-4 is incorporated in both the solicitation and resulting contract by reference in the SF 1449. See my comment in my next post below.

Incorporated by reference in a clause that is incorporated by reference!! For gosh sakes!! SHEESH!

Edited by joel hoffman
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 “4.1007 Solicitation alternative line item proposal.

Solicitations should be structured to allow offerors to propose alternative line items (see  4.1008 and  52.212-1(e)). For example, when soliciting certain items using units of measure such as kit, set, or lot, the offeror may not be able to group and deliver all items in a single shipment.”

Here is the prescription at 12.301(b) for the provision at 52.212-1 for commercial products and services format:

12.301 (b)(1):  “The provision at  52.212-1  ,Instructions to Offerors-Commercial Products and Commercial Services. This provision provides a single, streamlined set of instructions to be used when soliciting offers for commercial products or commercial services and is incorporated in the solicitation by reference (see Block 27 a,  SF 1449). The contracting officer may tailor these instructions or provide additional instructions tailored to the specific acquisition in accordance with  12.302.”

52.212-1 “…(e) Multiple offers. Offerors are encouraged to submit multiple offers presenting alternative terms and conditions, including alternative line items (provided that the alternative line items are consistent with FAR  subpart  4.10), or alternative commercial products or commercial services for satisfying the requirements of this solicitation. Each offer submitted will be evaluated separately.”

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If 52.204.22 is essentially covered in the referenced provision at 52.212-1(e), do you think it is necessary for you to reference or add the additional instructions in 52.204-22?

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Comment
: If the government is trying to simplify purchasing commercial items and services, I personally think that there is a whole lot more time, effort and B.S. expended  by both government employees, prospective vendors, the successful contractor and government contractor administration personnel in searching for all the referenced provisions and clauses to read vs. simply including them all, as one or two attachments (provisions and clauses) or in a single linked attachment.

It’s no wonder to me why nobody seems to know what is in the solicitation and in the resulting contract.

SHEESH!!! 

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What happens if any online referenced provisions and/or contract clauses are revised ? 

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I think that the OP has probably figured out what “notwithstanding” means.

 
On 2/16/2024 at 3:07 AM, ArrieS said:

So FAR 12.301 (d) says "Other required provisions and clauses. Notwithstanding prescriptions contained elsewhere in the FAR, when acquiring commercial products or commercial services, contracting officers shall be required to use only those provisions and clauses prescribed in this part. The provisions and clauses prescribed in this part shall be revised, as necessary, to reflect the applicability of statutes and executive orders to the acquisition of commercial products or commercial services."

See dictionary definitions for “notwithstanding”.

Here is one example:

“What does notwithstanding mean in legal terms?
despite, in spite of
Notwithstanding legal use means creating exceptions to the rules of a contract. It also means despite, in spite of, even if, with regard to, however, in any event, nevertheless, still, and yet.
https://www.upcounsel.com › notwi...””

The original question which followed was:

On 2/16/2024 at 3:07 AM, ArrieS said:

Does "Notwithstanding prescriptions contained elsewhere in the FAR..." mean the clauses not mentioned in FAR PART 12 can still be required, or not?

It generally means  “despite” prescriptions (or “even if” prescribed) elsewhere, if it isn’t “required in” Part 12, then the KO isn’t required to include it.

It also means that if it [edit: is or] isn’t “indirectly referenced in” Part 12, then the KO  isn’t required to include it.

Applicable to the example peer review comments that the OP cited. The cited examples are already included by reference.

The practical problem is that, apparently some government personnel don’t seem to be aware of all the Part 12 requirements contained in references and references in the references.

Yet all vendors, prospective contractors and contractors are required to know all directly and indirectly referenced Part 12 requirements.

And they call this “simplifying” commercial acquisitions,

 

 

 

Edited by joel hoffman
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33 minutes ago, joel hoffman said:

It generally means  “despite” prescriptions (or “even if” prescribed) elsewhere, if it isn’t “required in” Part 12, then the KO isn’t required to include it.

It also means that if it isnt “indirectly referenced in” Part 12, then the KO  isn’t required to include it.

I am not sure if you agree, or any one else for that matter but here is my view.   The notwithstanding language also relates to the discussion in FAR part 12 with regard to "tailoring" or in otherwords the indirectly referenced.   Specifically FAR 12.302(c) and the tailoring of a clause that could be done or should not be done.

( I hope I am making sense!)  

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