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DLAD PART 12 – ACQUISITION OF COMMERCIAL ITEMS



PART 12 – ACQUISITION OF COMMERCIAL ITEMS

TABLE OF CONTENTS

SUBPART 12.1 – ACQUISITION OF COMMERCIAL ITEMS – GENERAL

12.102 Applicability.

SUBPART 12.2 – SPECIAL REQUIREMENTS FOR THE ACQUISITION OF COMMERCIAL ITEMS

12.204 Solicitation/Contract form.

12.207 Contract type.

12.208 Contract quality assurance.

SUBPART 12.3 – SOLICITATION PROVISIONS AND CONTRACT CLAUSES FOR THE ACQUISITION OF COMMERCIAL ITEMS

12.301 Solicitation provisions and contract clauses for the acquisition of commercial items.

12.302 Tailoring of provisions and clauses for the acquisition of commercial items.

SUBPART 12.4 – UNIQUE REQUIREMENTS REGARDING TERMS AND CONDITIONS FOR COMMERCIAL ITEMS

12.403 Termination.

SUBPART 12.5 – APPLICABILITY OF CERTAIN LAWS TO THE ACQUISITION OF

COMMERCIAL ITEMS

12.504 Applicability of certain laws to subcontracts for the acquisition of commercial items.

SUBPART 12.6 – STREAMLINED PROCEDURES FOR EVALUATION AND SOLICITATION OF COMMERCIAL ITEMS

12.603 Streamlined solicitation for commercial items

SUBPART 12.1 – ACQUISITION OF COMMERCIAL ITEMS - GENERAL

12.102 Applicability.

(a)(90) Part 12 is mandatory, except for the exemptions at FAR 12.102(d), if --

(i) The Commercial Off-the-Shelf (COS) field in the Contracting Technical Data File (CTDF) is coded "Y," which indicates to the buyer that a technical review (either on an individual or group basis) has resulted in a preliminary determination that the item meets the definition of commercial item at FAR 2.101 (but see FAR 12.102(90)(1)) regarding the contracting officer’s authority to make the final determination).

(ii) The COS field is blank, but the item or service is clearly a type that is used by non-Government customers and that would meet the definition of commercial item at FAR 2.101;

(iii)(A) After issuance of the solicitation, the agency identifies an available item or service that will satisfy the government's requirement and that meets the definition of commercial item at FAR 2.101; and

(B) The item, if other than the exact approved item cited in the procurement item description (PID), has been determined technically acceptable.

(iv) A non-Part 12 long-term contracting instrument expires and a new long-term contracting arrangement will be negotiated; unless the contracting officer conducts adequate market research, seeks commercial solutions, determines FAR Part 12 is inappropriate for use, and documents the contract file appropriately (see FAR 10.001(a)(2)(ii), 10.001(a)(3)(ii), 10.002(e), and 12.101); or

(v) Simplified acquisition procedures (FAR Part 13) are being used to acquire commercial items.

(91) Part 12 cannot be used if --

(i) The COS field is coded "N;"

(ii) The COS field is blank, but the item or service is clearly Government-unique (see FAR 10.002(d)(2));

(iii) Only noncommercial items are being acquired; except that nondevelopmental items can compete for a requirement that was solicited under FAR Part 12 (see FAR 11.002(a)(2)(iii));

(iv) The acquisition is conducted using an automated procurement system that (A) does not include FAR Part 12 (such as, for example, Procurement Automated Contract Evaluation (PACE)); or (B) is issuing an order against a pre-existing non-Part 12 contract;

(v) The acquisition is conducted under the Federal Prison Industries, Inc. (FPI) Program (FAR Subpart 8.6); or

(vi) The following conditions apply --

(A) The COS field is blank;

(B) It is not clear whether the item or service is a type that is used by non-Government customers;

(C) The acquisition is below the simplified acquisition threshold (SAT); and

(D) It is not cost-effective to conduct market research (see FAR 10.001(a)(2)(iii)).

(92) When an acquisition is conducted under the (“AbilityOne”) Program ( formerly called Javits-Wagner-O’Day ACT, (JWOD)), (FAR Subpart 8.7), use of Part 12 is discretionary but strongly encouraged for commercial item acquisitions. The decision whether to conduct “AbilityOne” acquisitions using Part 12 can be based on cost-effectiveness, such as automated systems capabilities or other administrative considerations.

(90)(1)(i)

(92) The contracting officer may negotiate the Part 12 terms and conditions into the purchase order or contract when the conditions described below apply. (This is not a solicitation amendment, because all parties receiving the synopsis notice and/or the solicitation had the same opportunity to identify and offer an alternate item, including a commercial item.)

(i) The solicitation was not issued in accordance with Part 12, because the agency had not identified any commercial items that could meet the Government’s need (see FAR 10.002(d)(2)); and

(ii) An item is offered that is determined by the agency to meet the definition of commercial item at FAR 2.101 and to be technically acceptable in time for award under the instant acquisition.

12.102(f)(1) The Contracting Officer is delegated the authority to make the determination that the acquisitions are to be used to facilitate defense against or recovery from nuclear, biological, chemical, or radiological attack. This determination should be placed in the contract file.

SUBPART 12.2 – SPECIAL REQUIREMENTS FOR THE ACQUISITION OF COMMERCIAL ITEMS

12.204 Solicitation/Contract form.

(a) DLA activities are authorized to use the SF 1449 on an optional basis for all acquisitions of commercial items. This DLAD coverage constitutes a class deviation in accordance with DFARS 201.404(b)(ii). When using the authority of this deviation to conduct Part 12 buys using forms other than the SF 1449, the Part 12 terms and conditions must be applied in the same manner as if the SF 1449 were being used; and all information that would otherwise be provided on the SF 1449 itself must be included in solicitations and/or contracts (such as, for example, Method of Solicitation, i.e., Request for Quote, Invitation for Bid, or Request for Proposal). This deviation will remain in effect until Business Systems Modernization (BSM) is fully implemented. (FARS DEV 02-03)

12.204 (b) Reference to UCF in Commercial Acquisitions.

Use 52.212-9004, Reference to UCF in Commercial Acquisitions, in solicitations and awards

for commercial items under FAR Part 12 procedures when the SF 1449 is not being used.

12.207 Contract type.

(90) Indefinite-delivery contracts may also provide for economic price adjustment using a locally developed clause to set firm contract prices based on prevailing established catalog or market prices in accordance with FAR 16.501-2(c),

(91) See 16.601 (90) for additional requirements concerning use of time and material/labor hour CLINS, contracts, or task orders for commercial services.

12.208 Contract quality assurance.

(90) Reliance on contractors’ quality assurance systems is preferred. However, other quality assurance practices (such as in-process, in-plant inspection for critical application or complex items) are considered consistent with customary commercial practice when market research indicates they are at least sometimes used in the industry for items that are the same as or similar to the ones being acquired (see 10.001(a)(3)(iv)(90)). When Government inspection and testing before tender for acceptance are determined necessary and cannot be considered consistent with customary commercial practices, the contracting officer may request a waiver in accordance with FAR and DLAD 12.302(c). When the Government needs to inspect before tender or deviate in any other way from FAR 52.212-4(a), Inspection/Acceptance, the contracting officer must tailor the solicitation/contract by attaching an addendum (see FAR 12.302(d)). If the tailoring invokes contract terms and conditions that are consistent with customary commercial practice, a waiver is not required in accordance with FAR 12.302(c). However, an addendum is still necessary to change the terms of the solicitation/contract. If FAR 52.212-4 is incorporated in the solicitation or contract reference with no addendum, the Government has only the rights explicitly stated in FAR 52.212-4(a) as written.

SUBPART 12.3 – SOLICITATION PROVISIONS AND CONTRACT CLAUSES FOR THE ACQUISITION OF COMMERCIAL ITEMS

(Revised September 8, 2011 through PROCLTR 2011-32)

12.301 Solicitation provisions and contract clauses for acquisition(s) of commercial items.

12.302 Tailoring of provisions and clauses for the acquisition of commercial items.

SUBPART 12.4 – UNIQUE REQUIREMENTS REGARDING TERMS AND CONDITIONS FOR COMMERCIAL ITEMS

(Revised August 15, 2011 through PROCLTR 2011-31)

12.403 Termination.

SUBPART 12.5 – APPLICABILITY OF CERTAIN LAWS TO THE ACQUISITION OF COMMERCIAL ITEMS

12.504 Applicability of certain laws to subcontracts for the acquisition of commercial items.

SUBPART 12.6 – STREAMLINED PROCEDURES FOR EVALUATION AND SOLICITATION FOR COMMERCIAL ITEMS

12.603 Streamlined solicitation for commercial items.

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