11.103 Market acceptance.
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(a) 41 U.S.C.3307(e) provides that, in accordance with agency procedures, the head of an agency may, under appropriate circumstances, require offerors to demonstrate that the items offered-
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(1) Have either-
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(i) Achieved commercial market acceptance; or
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(ii) Been satisfactorily supplied to an agency under current or recent contracts for the same or similar requirements; and
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(2) Otherwise meet the item description, specifications, or other criteria prescribed in the public notice and solicitation.
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(b) Appropriate circumstances may, for example, include situations where the agency’s minimum need is for an item that has a demonstrated reliability, performance or product support record in a specified environment. Use of market acceptance is inappropriate when new or evolving items may meet the agency’s needs.
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(c) In developing criteria for demonstrating that an item has achieved commercial market acceptance, the contracting officer shall ensure the criteria in the solicitation-
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(1) Reflect the minimum need of the agency and are reasonably related to the demonstration of an item’s acceptability to meet the agency’s minimum need;
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(2) Relate to an item’s performance and intended use, not an offeror’s capability;
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(3) Are supported by market research;
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(4) Include consideration of items supplied satisfactorily under recent or current Government contracts, for the same or similar items; and
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(5) Consider the entire relevant commercial market, including small business concerns.
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(d) Commercial market acceptance shall not be used as a sole criterion to evaluate whether an item meets the Government’s requirements.
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(e) When commercial market acceptance is used, the contracting officer shall document the file to-
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(1) Describe the circumstances justifying the use of commercial market acceptance criteria; and
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(2) Support the specific criteria being used.
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