FAR 52.212-1. Applicable to FAR 13 acquisitions?

[anonco]

This is a basic question, but stay with me. For the past ten years and 5 agencies, I have inserted the provision FAR 52.212-1 into all solicitations for commercial items, including solicitations using FAR Part 12 in conjunction with FAR Part 13. The prescription states, "This provision provides a single, streamlined set of instructions to be used when soliciting offers for commercial items and is incorporated in the solicitation by reference." It does not make a distinction between using FAR Part 12 in conjunction with FAR Part 13 vs FAR Part 14 or 15.

So, the title of the provision is "Instructions to Offerors-Commercial Items. The Definition of Offer in FAR 2.101 states, "...a response to a solicitation that, if accepted, would bind the offeror to perform the resultant contract. Responses to invitations for bids (sealed bidding) are offers called "bids" or "sealed bids"; responses to requests for proposals (negotiation) are offers called "proposals"; however, responses to requests for quotations (simplified acquisition) are "quotations", not offers.

Offeror means offeror or bidder.

In addition, every lettered item in 52.212-1 is specific to offerors. (b ) submission of offers; (c ) Period for acceptance of offers; (e) Multiple offers; (f) Late submissions, modifications, reviions, and withdrawals of offers...

I ask this question because I have always inserted it for ALL commercial acquisitions, but then I turn around and accept "late" quotes under FAR 13. It doesn't seem that this provision really belongs in RFQs.

It seems basic enough, but no one seems willing (including legal) to say it doesn't belong, becuase, well, "it has always gone in."

Thoughts? ...and if I put it in, am I then held to the more strict rules that would apply under FAR 14 and 15?

[C Culham]

anonco - So when you have inserted the provision in the solicitation have your considered FAR 12.301( (1) and its related cross references?

"The contracting officer may tailor these instructions or provide additional instructions tailored to the specific acquisition in accordance with 12.302."

I could be wrong but my read of FAR suggests that tailoring of 52.212-1 is pretty wide open. This would include tailoring to fit the method of acquisition.

[anonco]

Yes. I'm aware that it can be tailored, but it seems that the entire clause, from the title to almost every lettered item, is applicable to offerors/offers. So, I would basically be tailoring all of those by addendum to say that they don't apply.

[ji20874]

I don't think you need the clause at FAR 52.212-1 in a FAR Part 13 acquisition. The prescribing language at FAR 12.301( b )( 1 ) doesn't reach to FAR Part 13 RFQs.

[ji20874]

Why do you always put it in? Stop doing it, and your problem will go away. The prescribing language for FAR 52.212-1 at at FAR 12.301( b )( 1 ) doesn't reach to FAR Part 13 RFQs.

[Don Mansfield]

I wouldn't use FAR 52.212-1 in its standard form for RFQs. I would tailor it.

[anonco]

JJ20874 - All of our solicitations are required to be approved by a level above the CO. Depending upon the nature of the acquisition, sometimes solicitations are reviewed by legal. In all instances, I am told it is "missing and required." It's not simply a matter of me leaving it out. I wouldn't have reached out to see what others do if I could have just omitted it and moved forward.

[C Culham]

anonco - I hate to be blunt but I am confused and it seems like providing you with logical and appropriate responses is a waste of time by me. May other posters agree me but that is how I feel.

I say this in that in another thread you have indicated that you work for a HQ agency and as such you are at the end of chain for advice and counsel. So if you are then I just do not get why you cannot take the sound advice and counsel that you might receive here and make it happen?

And if you can't then in reality your questions and the attempt by me (and others it seems as well) to help are for not and you have to just keep plugging the clause in and be frustrated and frustrate at least me. Why, when an answer is provided you simply say thanks but I can't run with your thoughts!

Or, you could take your posts and the comments of folks that you receive and make a case to right person in HQ that the level above and the legal reviews are worthless, are not value added to an efficient procurement organization and should either be improved by educating the level above and the legal staff or done away with all together.

[ji20874]

In all instances, I am told it is "missing and required."

Do you believe the provision at FAR 52.212-1 is required in FAR Part 13 acquisitions?

Have you asked your level-above and legal reviewers to share with you the source of their "missing and required" comments?

If you want to push back and help others understand correct principles, here's a primer...

1. FAR Part 13 allows for the solicitation of either quotations or offers -- you need to decide which you are seeking -- see FAR 13.106-2 and 13.003( g )( 3 ) and 13.106-1( a )( 2 ).-- don't be sloppy by using the terms interchangably -- and don't let others use the term interchangeably.

2. If you are seeking offers (not quotations), then yes, use the provision at FAR 52.212-1 -- the prescribing language for this provision at FAR 12.301( b )( 1 ) says to use it whenever you are soliciting offers for commercial items -- if you want to, tailor it as appropriate under FAR 12.302( a ).

3. If you are seeking quotations (not offers), then no, do not use the provision at FAR 52.212-1 -- the prescribing language only calls for it when soliciting offers. Just don't use it. You aren't seeking offers. The provision gives you nothing.

4. An offer and a quotation are not the same thing. See FAR 13.004. Once this is understood, go back and re-read 1. above to make sure.

5. If there is still confusion on whether an offer and a quotation are the same thing, then read the definition of offer in FAR 2.101.

If you are unable to persuade your level-above and legal reviewers, well, you have to follow your agency rules.

[GeoJeff]

To ji20874,

In this case, you are putting too fine a point on the distinction between "quotation" and "offer/offeror."

Assume we are seeking quotations. You argue that 52.212-1 should therefore be omitted. 52.212-1(k) requires a prospective contractor to be "registered in the SAM database prior to award, during performance and through final payment of any contract resulting from this solicitation." See FAR 4.1102(a). If you don't use 52.212-1, then you would need to insert 52.204-7 in the solicitation to enforce SAM registration. 52.204-7 uses the term "offeror" throughout.

To continue this line of thought, a contractor cannot complete the SAM registration process as a "contractor" without first answering in the affirmative to "do you wish to bid on contracts?", and then completing his "Representations and Certifications." https://www.sam.gov/sam/transcript/Quick_Guide_for_Contract_Registrations.pdf So there the term "bid" is conflated with quotation and offer. 4.1201(a) makes clear that completing reps and certs through SAM is required, and 4.1202 does not allow for the use of 52.204-8 in commercial item acquisitions. Why? Because 52.212-3 exists to enforce the reps and certs, which is entitled "Offeror Representations and Certifications - Commercial Items," and uses the term "offeror" throughout.

I agree with others in principle that it should be tailored, but argue that an agency-wide or even government-wide alternate version for simplified acquisitions is more appropriate than individual COs tailoring this lengthy clause for individual acquisitions.

[ji20874]

I agree that terms are used too loosely in our practice and even in the FAR. But I do hold to the principle that under FAR Part 13, we can solicit either quotations or offers.

One doesn't need FAR 52.212-1 to enforce SAM registration -- para. (t) of the clause at FAR 52.212-4 will do this.

But you're right, a contracting officer may include and tailor the 52.212-1 provision in a request for quotations that is really seeking quotations -- and you're right, if every contracting officer in an agency is going to do it, it might be better to have an agency-wide approach. Usually, for me, there isn't anything I need in the 52.212-1 provision, but if there is, I bring it in in a sentence in my RFQ.

[C Culham]

ji20874 - So I will respond to a question you asked that fits Geo's line of thinking.

I believe you have to have 52.212-1 in the solicitation tailored to fit the specific acquisition as I find no where in the FAR that is says leave it out. The FAR says and prescribes that it be "in" but that it "may" be tailored. I would offer that your "sentence" should by FAR prescription be entitled - "52.212-1 Instruction to Offerors (Tailored)"

[GeoJeff]

One doesn't need FAR 52.212-1 to enforce SAM registration -- para. (t) of the clause at FAR 52.212-4 will do this.

52.212-4(t) doesn't explicitly require SAM registration prior to award. In noncommercial acquisition, 52.204-7 requires SAM registration prior to award and 52.204-13 requires maintenance of the SAM registration throughout the contract until final payment. In commercial acquisition, it's 52.212-1(k) and 52.212-4(t).

[ji20874]

You know, if a contracting officer is making an award not excepted under FAR 4.1102( a )( 1 ) through ( 7 ), he or she may include the clauses at FAR 52.204-7 and -13 in the solicitation even if it is a commercial item acquisition. See FAR 4.1105( a )( 1 ) and ( 2 ) and the matrix at FAR 52.301.

I'd like to see the clauses at FAR 52.204-7 and -13 added to the clause at FAR 52.212-5 -- that would make it easier for everyone. And you're right, a contracting officer may include and tailor the 52.212-1 provision in a request for quotations that is really seeking quotations (not offers) -- and if every contracting officer in an agency (or the government) is going to do it, it might be better to have an agency-wide (or government-wide) approach.

Usually, for me, there isn't anything I need in the 52.212-1 provision, but if there is, I bring it in in a sentence in my RFQ. Let's look at FAR 52.212-1 and see if it has any value for RFQs seeking quotations (not offers)--

• para ( a ) NAICS code and small business size standard. Well, this is true whether or not I use the provision
• para. ( b ) Submission of offers. It's all nice, but I really don't need the formality.
• para. ( c ) Period for acceptance of offers. I usually don't need it.
• para. ( d ) Product samples. If I need them, i can include these same words in the solicitation where the product samples are discussed.
• para. ( e ) Multiple offers. Well, it's all true even if I don't include the provision.
• para. ( f ) Late submission, modifications, revisions, and withdrawals of offers. Some people put great stock in this paragraph, but I prefer to rely on the general principle that I can accept a quotation (even a late quotation) anytime before makinjg award, at my discretion.
• para. ( g ) Contract award. Well, it's all true even if I'm silent on the matter.
• para. ( h ) Multiple awards. If I'm insisting on an all-or-none award or all-or-none quotations, I know how to do that. I suppose many (most?) people using the provision don't even know what this paragraph says.
• para. ( i ) Availability of specifications. I don't use this.
• para. ( j ) DUNS Number. Truth be told, it's very rare when an offeror complies and actually puts its DUNS number in the same block with its name and address anyway. A sentence in the RFQ will be much more effective in making this happen.
• para. ( k ) System for Award Management. This has been discussed already in this thread.
• para. ( l ) Debriefing. I have to do it anyway, even if I don't use the provision.

In all this, I hope we actually read the provisions and clauses we use in our solicitations and contracts. If we're going to talk about tailoring a provision, this becomes especially important.

But you're right, a contracting officer may include and tailor the 52.212-1 provision in a request for quotations that is really seeking quotations (not offers) -- and you're right, if every contracting officer in an agency (or the government) is going to do it, it might be better to have an agency-wide (or government-wide) approach. I agree.