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NMCARS ANNEX 7 - DON CONTROL PLAN FOR COMPONENT CLAUSES AND COMMERCIAL ITEM ACQUISITIONS PROVISION/CLAUSE USE

Action

Approval Authority

FAR/DFARS citation

Include a provision similar to FAR 52.212-2 containing all evaluation factors required by FAR 13.106, 14.2 or 15.3

Contracting Officer

FAR 12.301(c)(2)

Include in solicitations & contracts other FAR provisions & clauses when their use is consistent with the limitations in FAR 12.302 (Discretionary use only due to nature of procurement action, e.g. FAR 16.506 clauses for IDIQ contracts; FAR 17.208 when Options included; etc.)

Contracting Officer

FAR 12.301(e)

Tailor FAR provision 52.212-1 or FAR clause 52.212-4 identified in FAR 12.301, after conducting appropriate market research, to adapt

to the market conditions for each acquisition (i.e. tailor only consistent with commercial practices).

Contracting Officer

FAR 12.302(a)

FAR 12.301(b)(1)

FAR 12.301(b)(3)

Tailor FAR clause 52.212-4 (except as noted in FAR 12.302(b)) in a manner that is inconsistent with customary commercial practice for the item being acquired, if waiver is approved.

HCA; except ASN(RD&A) approval is required if tailoring results in adding of any new terms or conditions

FAR 12.302(c) DFARS 212.302(c)

Deviate from FAR provision 52.212-3 only in accordance with FAR Subpart 1.4.

ASN(RD&A)/DASN(AP)

FAR 12.301(b)(2)

DFARS 201.4

Supplement provisions & clauses in

FAR/DFARS Parts 12/212 with use of additional clauses & provisions only as necessary to reflect agency-unique statutes applicable to acquisition of commercial items.

OASN (RD&A)/DASN(AP)

FAR 12.301(f)

Approve inclusion of a component-unique provision or clause necessary to reflect an agency-unique statute applicable to the acquisition of commercial items.

DASN(AP)

NMCARS 5212.301(f)

Supplement provisions & clauses in FAR/DFARS Parts 12/212 with use of additional clauses & provisions other than those necessary to reflect agency-unique statutes applicable to acquisition of commercial items.

Navy Senior Procurement Executive (ASN RD&A)

or (DPAP)*

w/o power of delegation

FAR 12.301(f)

*Note: Only OUSD(AT&L)DPAP may approve the use of any Component-unique clause or provision that meets the conditions of DFARS 201.304(1)(i).

B. Commercial Item Acquisitions Provision/Clause Use Procedures.

Reference/Resource

Description

NMCARS Subparts 5201.3, 5212.3 and Annex 7 (Commercial Items Acquisitions Clause Use)

Depict DON’s current policy on provision/clause use in solicitations/contracts for commercial items. Annex 7 includes a summary of the unique approval requirements on provision/clause use for commercial item acquisitions as prescribed by FAR Subpart 12.3. It also identifies the sources of approval (i.e. from the Contracting Officer to the Navy Senior Procurement Executive to the Director, DPAP) for including other than the specified FAR Part 12.3 provisions/clauses; for tailoring of existing FAR 12.3 provisions/clauses; and for adding of other Government-unique provisions/clauses in solicitations/contracts for commercial items.

Navy/Marine Corps Contracting Activities Plan for Restricting, Limiting, Controlling Use of Government-Unique Clauses of July 11, 2008

Establishes the objectives that will help DON restrict, manage and control the use of Government-unique clauses in commercial item contracts.

DON Control Plan for Component Clauses of August 19, 2009

Establishes the overarching process that will govern development and approval of all component-unique provisions or clauses as required by DFARS 201.304(1)(4). The objective of this plan is to ensure that DON solicitations/contracts include only properly approved component-unique provisions/clauses. It depicts the unique approval requirements governing provision or clause use in solicitations/contracts for commercial items.

DON Matrix of FAR/DFARS and Other Government-Unique Provisions/Clauses for Commercial Item Acquisitions (NMCARS Subpart 5252.3)

Serves as a reference tool listing the FAR Part 12, DFARS Part 212 and other government-unique provisions and clauses (including component-unique provisions/clauses) that are authorized for use in commercial item acquisitions within DON given the current authorities in the higher regulations. To the extent practicable, the matrix facilitates the selection of provisions/clauses for commercial item solicitations/contracts using the Standard Procurement System (SPS) or another procurement writing system. Contracting Officers bear the responsibility of ensuring that only appropriately authorized or approved provisions/clauses are used in each solicitation/contract for commercial items. Maintenance of this reference tool is the responsibility of DASN(AP)/Policy.

Provision/Clause Use Decision Tree for Commercial Item Acquisitions

Illustrates the decision-making process affecting provision/clause use in solicitations/contracts for commercial items. The Contracting Officer should use the decision tree in conjunction with the general procedures on provision/clause use outlined in paragraph 7, Procedures, of NMCARS Annex 7, section B, in order to fully understand all the required decisions in determining the appropriate provisions/clauses to be used for a specific commercial item acquisition.

DoD Commercial Item Handbook (Nov 2001)

Provides guidance on the contracting process for commercial item acquisitions, including tools for conducting and documenting market research.

Terms

Definitions

Clause

A part of the contract containing one or more requirements or obligations of one of the parties to a contract (i.e. terms or conditions) and that follows the unique format set forth in FAR Part 52, DFARS Part 252 and NMCARS Part 5252. Commercial item acquisitions generally include clauses (1) FAR 52.212-4, (2) FAR 52.212-5, and (3) when properly authorized, other clauses set forth in FAR Part 52, DFARS Part 252, NMCARS Part 5252, including DON Government-unique provisions or clauses developed in accordance with the DON Control Plan for Component Clauses.

Commercial Item (CI) Acquisition

A contract requirement that meets the definition of “commercial items” at FAR 2.101 and is executed (i.e., procured/awarded) following the procedures set forth in FAR Part 12. (Note: The policies in FAR Part 12 are to be used in conjunction with policies and procedures for solicitation, evaluation, and award set forth in FAR Parts 13, 14, and 15, as appropriate.) When the head of the agency determines that the supplies and services are to be used to facilitate defense against or recovery from nuclear, biological, chemical, or radiological attack, such actions may be treated as an acquisition for commercial items as permitted by FAR 18.202.

Discretionary Use

Inclusion of additional FAR provisions/clauses that are not required by FAR 12.301(b) in solicitations/contracts for the acquisition of commercial items but which may be used when their use is consistent with customary commercial practices for the specific commercial item acquisition or as deemed necessary for contract performance due to the nature of the work (e.g., FAR 16.506 clauses for IDIQ contracts, FAR 17.208 when Options are included, etc.).

Government-Unique Clause

A provision or clause developed by an organizational entity exercising contracting authority within DON (or DoD) and that is approved by the appropriate authority for use in commercial item acquisitions in addition to prescribed FAR Part 12 or DFARS Part 212 provisions/clauses

Provision

A specific set of instructions that are to be used or followed when soliciting offers for commercial items. Provisions typically consist of representations and certifications to be completed by the offeror, instructions to offerors, and evaluation criteria/information regarding the basis of award of the specific acquisition. For commercial item acquisitions, provisions are of the type set forth in (1) FAR 52.212-1; (2) FAR 52.212-2; and (3) FAR 52.212-3. Since provisions provide information necessary during the solicitation phase of an acquisition, these provisions are generally not incorporated in the contract award document.

Tailoring

Revising, editing or modifying the pre-existing instructions and/or terms and conditions contained in FAR Subpart 12.3 provisions/clauses to adapt these provisions/clauses to reflect current customary commercial practices as may be necessary to meet or protect the Governments interests. For example FAR 52.212-4 has twenty subsections addressing specific areas ranging from (a) inspection/acceptance to (t) Central Contractor Registration. Tailoring would involve adding, deleting or revising language concerning one of those specific areas, but not adding terms concerning new areas

Term and Condition

A requirement or obligation of one of the parties to a contract. For example, in commercial item acquisitions, terms and conditions are of the type set forth in FAR 52.212-4.

Supplementing

Adding newly developed provisions/clauses in commercial item acquisitions necessary to (1) reflect Navy-unique statutes applicable to the acquisition of commercial items (e.g. a new statute imposes a specific requirement on shipbuilding or facilities maintenance and is deemed to apply to commercial item acquisitions), or (2) as may be approved by the Navy Senior Procurement Executive (e.g. establishment of a WAWF or ERP clause for use within Navy), or (3) by the Director, Defense Procurement and Acquisition Policy, without power of delegation (e.g. using special clauses for Acquisitions in Support of Operations in Iraq or Afghanistan). This also includes use of DFARS 252 and NMCARS 5252 provisions/clauses that are not specifically identified in the DON Matrix of FAR/DFARS and Other Government-Unique Provisions/Clauses for Commercial Item Acquisitions.

Key Stakeholder

Roles & Responsibilities

Contracting Officer

Responsible for ensuring that only properly authorized provisions/clauses are used in solicitations/contracts for commercial items. As a result, the Contracting Officer, supported by Contract Specialists, must work closely with the requirements and program offices in performing the necessary market research to (1) determine if the instant requirement meets the definition of a commercial item at FAR 2.101 and should be procured using FAR Part 12 procedures; (2) identify the current customary commercial practices that may affect the instant contract requirement in terms of provision/clause use; (3) determine the need for revisions to FAR Subpart 12.3 provisions/clauses or the development of any additional/supplemental component-unique provisions/clauses; and (4) obtain the appropriate approvals of such actions before release of the commercial item solicitation. The Contracting Officer obtains Counsel support, as necessary, during this entire process.

Chief of the Contracting Office (CCO)

Responsible for ensuring that the Contracting Officer and others within the contracting organization understand the current policy and procedures affecting Government-unique provision/clause use in commercial solicitations/contracts. The CCO facilitates this process by communicating policy and procedures in a timely manner throughout the contracting organization and establishing the necessary management/oversight controls to promote compliance with prescribed policy/procedures.

Head of the Contracting Activity (HCA)

Responsible for ensuring that appropriate management controls are in place to effectively manage and control provision/clause use in the activity’s contracts for commercial items.

Counsel

Responsible for performing legal sufficiency reviews of provisions/clauses used in solicitations/contracts for commercial items, as required or as requested by the Contracting Officer.

Office of the Assistant Secretary of the Navy (Research, Development & Acquisition) (OASN(RD&A) and Deputy Assistant Secretary of the Navy(Acquisition and Procurement)

Responsible for overall management/oversight of component contract provisions/clauses within DON. This includes maintaining the electronic repository of all approved component provisions/clauses for use in solicitations/contracts for commercial or non-commercial items within the Agency; maintaining the DON Matrix of FAR/DFARS and Other Government-Unique Provisions/Clauses for Commercial Item Acquisitions; promulgating policy affecting clause use in contracts for commercial items; reviewing/approving requests for component provisions or clauses necessary to implement agency-unique statutes as required by FAR 12.301(f); and, maintaining an updated component clause control plan for DON. This office receives/processes HCA requests for authority to include supplemental provisions/clauses (i.e. use additional clauses/provisions) other than those necessary to reflect agency-unique statutes applicable to acquisition of commercial items as required by FAR 12.301(f).

Navy Senior Procurement Executive (NSPE)

As stipulated by FAR 12.301(f), serves as the final approval authority within DON for inclusion, in a solicitation/contract for commercial items, of any agency/component-unique provision/clause necessary to supplement FAR Subpart 12.3/DFARS 212.3 provisions/clauses with use of additional provisions/clauses, other than those necessary to reflect agency-unique statutes applicable to acquisition of commercial items. ASN(RD&A) is the NSPE.

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