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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?

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The blurb "including solicitations and contracts using FAR part 12 procedures for the acquisition of commercial items" is a DFARS convention--I don't think you'll find it in the FAR. Every provision/clause prescription that contains that blurb is listed at DFARS 212.301. Only those provisions and clauses listed at DFARS 212.301 are required in solicitations and contracts for commercial items. As far as FAR clauses, the general rule is that if a provision or clause is not prescribed in FAR part 12, it's not required in a solicitation or contract for commercial items. See FAR 12.301( d ). You would not separately cite FAR 52.222-50 in a solicitation/contract for commercial items, since it's already incorporated by reference at FAR 52.212-5( a ).

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Thanks Don.

So just as an example, if the 252.225-7001 Buy American and Balance of Payments Program clause applies and is inserted into the commercial contract (which is listed in the commercial list of DFARS clauses in 212.301), then we would not also add 252.225-7002 to the contract since it is NOT in 212.301, despite the fact that that the prescription for 252.225-7002 says " Use the clause at 252.225-7002 Qualifying Country Sources as Subcontractors, in solicitations and contracts that include the basic or one of the alternates of the following clauses: (i) 252.225-7001, Buy American and Balance of Payments Program..."?

Is there a specific FAR or DFARS citation saying that clauses outside Parts 12 or 212 are not to be included? Perhaps 12.301(a) is attempting to accomplsh that function?

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Recommend reading all of FAR 12.301. FAR 12.301(d) seems clear enough: "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."

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I read through 12.301 and it clearly is trying to say that only provisions/clauses in part 12 are required. However The "Notwithstanding prescriptions contained elsewhere in the FAR" part of 12.301(d) sort of throws a wrench in the genera logic in 12.301. It seems pretty clear 12.301 is saying you only need to use the clauses in Part 12, however when it says "Notwithstanding prescriptions contained elsewhere in the FAR," it makes it seem like you do need to account for all other clauses in all other parts.

For example, my original example in this post, 52.222-50, has a prescription that says to use in all solicitations and contracts. This prescription seems like it would fall under the category of a "prescription contained elsewhere in the FAR" that cannot be ignored based on the 12.301(d) wording. If they want us to only use the Part 12 provisions/clauses [unless a specific acquisition calls for the need of something additional], then why include "Notwithstanding prescriptions contained elsewhere in the FAR" wording? It's like saying "only use the provisions/clauses prescribed in Part 12...except read every other prescription to see if they apply". Or am I interpeting that phrase incorrectly?

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Thanks Don.

So just as an example, if the 252.225-7001 Buy American and Balance of Payments Program clause applies and is inserted into the commercial contract (which is listed in the commercial list of DFARS clauses in 212.301), then we would not also add 252.225-7002 to the contract since it is NOT in 212.301, despite the fact that that the prescription for 252.225-7002 says " Use the clause at 252.225-7002 Qualifying Country Sources as Subcontractors, in solicitations and contracts that include the basic or one of the alternates of the following clauses: (i) 252.225-7001, Buy American and Balance of Payments Program..."?

Is there a specific FAR or DFARS citation saying that clauses outside Parts 12 or 212 are not to be included? Perhaps 12.301(a) is attempting to accomplsh that function?

That's correct. Even though the DFARS doesn't specifically say this, the final rule makes it clear as to the DAR Council's intent.

Also, you are misinterpreting the "Notwithstanding..." sentence at FAR 12.301( d ). Read it like "Regardless of the prescriptions contained elsewhere in the FAR..."

Lastly, in case you are working on a commercial solicitation, see my Solicitation Preparation Guide.

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This discussion reminds me of two related annoyances.

First:

In commercial item acquisition, the SAM requirement is at 52.212-1(k) and 52.212-4(t).

In noncommercial item acquisition, the SAM requirement is at 52.204-7 and 52.204-13.

The FAR matrix lists both 52.204-7 and 52.204-13 as "A," for "required when applicable," in "CI" "Commercial items" acquisitions. Why?

Second:

52.232-40 is required in all solicitations and contracts, including all commercial item acquisitions; see 12.301(d)(5). The clause date is December 2013. Why is this not simply included in 52.212-5, dated December 2014? Because it's not required by law or EO? Then why not include it in 52.212-1/4?

As always, appreciative of the discussion.

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  • 1 month later...

Carl,

FAR 12.301(e) states:

Discretionary use of FAR provisions and clauses. The contracting officer may include in solicitations and contracts by addendum other FAR provisions and clauses when their use is consistent with the limitations contained in 12.302.

FAR 12.302( c ) states:

Tailoring inconsistent with customary commercial practice. The contracting officer shall not tailor any clause or otherwise include any additional terms or conditions in a solicitation or contract for commercial items in a manner that is inconsistent with customary commercial practice for the item being acquired unless a waiver is approved in accordance with agency procedures. The request for waiver must describe the customary commercial practice found in the marketplace, support the need to include a term or condition that is inconsistent with that practice and include a determination that use of the customary commercial practice is inconsistent with the needs of the Government. A waiver may be requested for an individual or class of contracts for that specific item.

So, if the Government were specifying "brand name or equal" for an item in the solicitation, use of the provision at FAR 52.211-6 would still have to be consistent with customary commercial practice.

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Don – Does not the statutory requirement of 41 U.S. Code § 3304 lead to a conclusion that tailoring is not appropriate but rather the requirements of FAR Part 6, 11 and 13, which read as a whole demand that certain actions must be taken by the Government when ordering a brand name product that is not for resale and those actions include the inserting of the brand name clause in the solicitation?

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Don – I disagree with your conclusions. GAO Decision B-403397.3, March 21, 2011 says it best. Or in other words if an agency develops a requirements document that requires a brand name or equal product they must put in appropriate FAR language as it has to do with everything regarding CICA and nothing to do with how the commercial market place handles brand name stuff.

CICA expressly requires agencies to specify their needs and develop specifications in a manner designed to achieve full and open competition. 10 U.S.C. sect. 2305(a)(1)(A) (2006). To that end, solicitations are required to include specifications that permit full and open competition, and may include restrictive provisions or conditions only to the extent necessary to satisfy the needs of the agency. 10 U.S.C. sect. 2305(a)(1)(B). Agencies are further instructed that they may use specifications stated in terms of function (so that a variety of products or services may qualify), performance characteristics or design requirements, depending on the nature of the requirements. 10 U.S.C. sect. 2305(a)(1)©.

These basic requirements are echoed in FAR part 11, under which, to the maximum extent practicable, agencies must articulate their requirements in terms of functions to be performed, performance characteristics required, or essential physical characteristics. FAR sect. 11.002(a)(2). While the use of performance specifications is preferred, FAR sections 11.101, 11.104, the FAR also permits agencies in appropriate circumstances to use "brand name or equal" purchase descriptions, where the purchase description includes a statement of the salient physical, functional or performance characteristics that are necessary to render an "equal" product eligible for award. FAR sect. 11.104. Agencies are precluded from specifying their requirements solely in terms of a particular firm's product unless the particular brand name, product or feature is essential to the government's needs, and market research shows that other companies' similar products lacking the particular feature do not meet the agency's needs, or cannot be modified to meet the agency's needs. FAR sect. 11.105. Further, when procuring on a brand name only basis, agencies are required to follow documentation and approval procedures for acquiring goods or services using other than full and open competition. FAR sect. 11.105.”

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Carl,

It's one thing to state a requirement using a "brand name or equal" description. It's another thing to use the provision at FAR 52.211-6 in a solicitation. If you are reading the GAO case and FAR part 11 as requiring the use of FAR 52.211-6 in a solicitation for commercial items using a "brand name or equal" description, then we'll have to disagree. All I can say is that your interpretation conflicts with the clear language of FAR 12.301(e).

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I'm not getting it...

Don, are you saying that the provision at FAR 52.211-6, Brand Name or Equal, cannot be used in a commercial acquisition? Because FAR 12.301 (and the reach to FAR 12.302) prohibits it?

[edited to change "clause" to "provision"]

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How about a slight re-wording?

FAR 52.211-6, as well as any other FAR provisions and clauses not prescribed in FAR part 12, may be used in commercial solicitations provided their use is not inconsistent with customary commercial practice.

To me, this is more true to FAR 12.301( e ) and 12.302( c ).

But maybe 12.301( e ) is not the right authority for using the provision at FAR 52.211-6 in a solicitation -- maybe the authority is really in FAR 12.301( a )( 1 )? As necessary to faithfully implement CICA? Paragraphs ( a ), ( b ), ( c ), ( d ), ( e ), and ( f ) of FAR 12.301 all provide authorities for using clauses in commercial acquisitions.

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How about a slight re-wording?

FAR 52.211-6, as well as any other FAR provisions and clauses not prescribed in FAR part 12, may be used in commercial solicitations provided their use is not inconsistent with customary commercial practice.

To me, this is more true to FAR 12.301( e ) and 12.302( c ).

But maybe 12.301( e ) is not the right authority for using the provision at FAR 52.211-6 in a solicitation -- maybe the authority is really in FAR 12.301( a )( 1 )? As necessary to faithfully implement CICA? Paragraphs ( a ), ( b ), ( c ), ( d ), ( e ), and ( f ) of FAR 12.301 all provide authorities for using clauses in commercial acquisitions.

I don't think the re-wording changes the meaning, but I have no quarrel if you want to state the rule that way.

I don't read FAR 12.301(a) like you're reading it. When FAR 12.301 is read as a whole, I think that (a)(1) is implemented by FAR 52.212-5 and (a)(2) is implemented by FAR 52.212-4 (including addenda), which are both described in FAR 12.302( b ).

Again, I think FAR 12.301( e ) is clear.

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Don – I know you are probably tired of this thread but considering the continuing discussion I believe the whole matter has been confused and would suggest that you have elected to do as ji has done and confuse the wording of the FAR.

Your first post at the renewed discussion of the thread at #11 stated “That is correct the clause is not required”.

That statement is not supported by the FAR. What the FAR says is THE CONTRACTING OFFICER SHALL NOT …..INCLUDE ANY ADDITIONAL TERMS OR CONDITIONS IN A SOLICITATION OR CONTRACT for commercial items in a manner THAT IS INCONSISTENT WITH CUSTOMARY COMMERCIAL PRACTICE FOR THE ITEM BEING ACQUIRED unless a waiver is approved in accordance with agency procedures. (FAR 12.302)

So to rephrase my original question at Post #12 how would anyone, including yourself, know the clause is not required without doing market research to determine that the clause is inconsistent with commercial practice?

And to restate my subsequent posts if the clause at 52.211-6 is not inconsistent with commercial practice then it is required because the prescription for it says that it shall be included when brand name purchase descriptions are included in the solicitation (FAR 11.107).

And as final clarity I believe the response to post number #10 by Hex would be this.

The CO, based on market research would determine if 52.211-6 is inconsistent with commercial practice and if it is the CO would not be include the clause in a solicitation/contract unless a waiver is obtained to include it. If the clause is consistent with commercial practice the clause would be included in the solicitation, if applicable as provided for by the clause prescription for use.

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Carl,

The provision is not required because it is not prescribed in FAR part 12. See FAR 12.301( d ):

Other required provisions and clauses. 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.

Even if the CO found that use of FAR 52.211-6 was consistent with customary commercial practice, it would still not be required.

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Well I am resigned to say I get it but I don't.

Commercial practice is to do exactly what the Feds do with regard to brand name, AIA demands it for construction (yes I know not commercial item) and highly suggests otherwise and the commercial market does do it. So the FAR is poorly written at best - Do it if it is commercial practice but don't do it.

In the end it would seem again at the risk of beating the horse that since CICA says you must use the clause to afford competition for procurements over the SAT it would seem wise to do it otherwise one could conclude you are doing a sole source and FAR Part 13.5 as read seems to reinforce such a conclusion. Reference at FAR 13.501 "Conduct sole source acquisitions, as defined in 2.101, (including brand name)..."

Sorry for belaboring and I am done.

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Don,

Maybe you can help clear the air by telling us if, in your opinion, a contracting officer can do a brand-name-or-equal acquisition for commercial items, and if so, how?

I suppose your answer will be YES, a contracting officer may do a brand-name-or-equal acquisition for commercial items, and YES, he or she may use the provision at FAR 52.211-6, Brand-Name-or-Equal, in the solicitation. Any other answer will cause me to be as frustrated as Carl. We all already know there is nothing in the provision that is inconsistent with commercial practice.

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