ACQUISITION REFERENCE GUIDE

COMMERCIAL ITEMS

Rev.: 6/8/06

Ref:

FAR Part 12

DFARS Part 212

NAVSUP Policy Letter

NMCARS/NMCAG 5212

Commercial Item (DEFINITION AS PER FAR 2.101

1.

2.

3.

4.

Any item, other than real property, that is of a typecustomarily used for nongovernmental

purposes and that-

-has been sold, leased, or licensed to the general public; or,

-has been offered for sale, lease, or license to the general public.

Any item that evolved from an item described in paragraph 1 of this definition through

advances in technology or performance and that is not yet available in the commercial

marketplace, but will be available in the commercial marketplace in time to satisfy the

delivery requirements under a Government solicitation;

Any item that would satisfy a criterion expressed in paragraphs (1) or (2) of this definition,

but for-

(i) modifications of a type customarily available in the commercial marketplace

(ii) minor modifications of a type customarily available in the commercial marketplace

made to meet Federal Government requirements. Minor modifications means

modifications that do not significantly alter the nongovernmental function or essential

physical characteristics of an item or component, or change the purpose of a process.

Factors to be considered in determining whether a modification is minor include the value

and size of the final product. Dollar values and percentages may be used as guideposts,

but are not conclusive evidence that a modification is minor.

Any combination of items meeting the requirements of paragraphs 1, 2, 3, or 5 of this

definition that are of a type customarily combined and sold in combination to the general public.

5. Installation services, maintenance services, repair services, training services, and other

services if--

(i) Such services are procured for support of an item referred to in paragraph (1),

(2), (3), or (4) of this definition, regardless of whether such services are provided

by the same source or at the same time as the item; and

(ii) The source of such services provides similar services contemporaneously to

the general public under terms and conditions similar to those offered to the

Federal Government;

Page 1 of 10

ACQUISITION REFERENCE GUIDE

6.

Services of a type offered and sold competitively in substantial quantities in the

commercial marketplace based on established catalog or market prices for specific tasks

performed under standard commercial terms and conditions. Does not include services that are

sold based on hourlyrates without an established catalog or.market price fora specific service

performed. For purposes of these services-

(i) Catalog price means a price included in a catalog, price list, schedule,

or other form that is regularly maintained by the manufacturer or vendor,

is either published or otherwise available for inspection by customers, and

states prices at which sales are currently, or were last, made to a

significant number of buyers constituting the general public; and

(ii) Market prices means current prices that are established in the course of

ordinary trade between buyers and sellers free to bargain and that can be

substantiated through competition or from sources independent of the

offerors.

7. Any item, combination of items, or service referred to in paragraphs 1 - 6,

notwithstanding the fact that the item, combination of items, or services is transferred between or

among separate divisions, subsidiaries, or affiliates of a contractor.

8. A nondevelopmental item, if the procuring agency determines that the item was

developed exclusively at private expense and sold in substantial quantities, on a competitive

basis, to multiple state and local governments.

Page 2 of 10

ACQUISITION REFERENCE GUIDE

MARKET RESEARCH

(FAR PART 10)

Agencies shall conduct market research appropriate to the circumstances before soliciting offers

for acquisitions with an estimated value in excess of the SAT; and before soliciting offers below

the SAT when adequate information is not available and the circumstances justify its cost.

FAR Part 10 describes the policies and procedures for conducting market research to arrive at

the most suitable approach to acquire, distribute, and support required supplies and services.

Determine whether CIs or nondevelopmental items are available to meet the Government's needs

or could be modified to meet the Government's needs. Note that if a CI procurement is planned,

market research is used to identify commonly used commercial practices.

Agencies should document the results of market research in a manner appropriate to the size and

complexity of the acquisition.

NOTE: If under the proposed acquisition, the Government does not

intend to acquire a CI using part 12, the synopsis shall refer to

numbered note 26.

CONTRACT TYPES

Firm-Fixed-Price contracts or fixed-price contracts with economic price adjustment are

authorized for the acquisition of CIs. Indefinite-delivery contracts may be used where the prices

are established based on a firm-fixed-price or fixed-price with economic price adjustment basis.

Use of any other contract type to acquire CI is prohibited.

PUBLISHING AND RESPONSE TIME

The KO shall establish a solicitation response time which will afford potential offerors a

reasonable opportunity to respond. If the combination synopsis/solicitation is used IAW FAR

12.603, the response time could be as little as 15 days from the date the synopsis appears in the

FEDBIZZOPS.

Page 3 of 10

ACQUISITION REFERENCE GUIDE

SF 1449 SOLICITATION/CONTRACT/ORDER FOR

COMMERCIAL ITEMS

The SF 1449 is to be used when issuing written solicitations and awarding contracts and placing

orders for CIs. The form may be used for documenting receipt, inspection and acceptance.

For Commercial Items using SAP Procedures, remember to use a "Q" for Request for Quotations

(PD2 defaults to "T") and to use a "M" for the Purchase Order (PD2 defaults to "P").

For all other Commercial Items above SAT, use "R" for Request for Proposals and "C" or "D"

for the award document.

NOTE: The SF 1449 as well as FAR Part 12 do not apply to the procurement

of Commercial Items which are:

-at or below the micro-purchase threshold

-using the SF 44

-using the imprest fund

-using the Government wide commercial purchase card

CI UNIQUE CLAUSES AND PROVISIONS

*CI procurements to the maximum extent practicable, should include only those clauses-

-required to implement provisions of law or executive orders applicable to the acquisition

of CIs

-determined to be consistent with customary commercial practice.

*FAR 52.212-1 Instructions to Offerors-Commercial Items

Provides a single, streamlined set of instructions to be used when soliciting offers for CIs and is

incorporated in the solicitation by reference (see block 27, SF 1449). This provision may be

tailored or additional instructions may be provided to the specific acquisition.

*FAR 52.212-2 Evaluation-Commercial Items

A provision which may be used when the use of evaluation factors is appropriate, or a similar

provision may be included containing all evaluation factors required by section 13.106-1, subpart

14.2 or subpart 15.3.

Page 4 of 10

ACQUISITION REFERENCE GUIDE

*FAR 52.212-3 Offeror Representatives and Certifications Commercial Items

A provision which provides a single consolidated list of certifications and representations for the

acquisition of CIs and is attached to the solicitation for offerors to complete and return with their

offer. This provision may not be tailored except IAW FAR, SubPart 1.4

*FAR 52.212-3, ALT I Offeror Representatives and Certifications Commercial Items

Use its alternate I in all solicitations issued by DOD.

*FAR 52.212-3, ALT II Offeror Representatives and Certifications Commercial Items

Use its alternate II in all solicitations for acquisitions for which small disadvantaged business

procurement mechanisms are authorized on a regional basis.

*FAR 52.212-3, ALT III Offeror Representatives and Certifications Commercial Items

Use its alternate III in all solicitations issued by Federal agencies subject to the requirements of

the HUBZone Act of 1997 (See 19.1302).

*52.212-4 Contract Terms and Conditions - Commercial Items

This clause includes terms and conditions which are, to the maximum extent practicable,

consistent with customary commercial practices and is incorporated by reference (see block 27,

SF 1449). The clause may be tailored. In accordance with 12.302

*52.212-5 Contract Terms and Conditions Required to Implement Statutes or Executive

Orders - Commercial Items

This clause incorporates by reference only those clauses required to implement provisions of law

or executive orders applicable to the acquisition of CIs. The clause is attached to the

solicitation and contract and may not be tailored.

*252.212-7000 Offeror Representations and Certifications - Commercial Items

The provision is to be included in all solicitations for CIs that exceed the SAT.

*252.212-7001 Contract Terms and Conditions Required to Implement Statutes Applicable

to Defense Acquisitions of Commercial Items

This clause is to be inserted in solicitations and contracts for CIs.

TAILORING

*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 FAR 12.302.

*The Contracting officer shall not tailor any clause or otherwise include any additional terms or

conditions in a solicitation or contract for CIs in a manner inconsistent with customary

commercial practice for the item being acquired unless a waiver is approved in accordance with

agency procedures.

Page 5 of 10

ACQUISITION REFERENCE GUIDE

*The waiver request 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

-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

-must be approved by the HCA (NAVSUP)

PALT OBJECTIVES FOR COMMERCIAL ITEMS

All SAP not exceeding $150,000

All SAP between $150,000 and $6,500,000

All Requirements using FAR Part 15 Procedures

10 Days

90 Days

120 Days

DISTRIBUTION OF COMMERCIAL ITEMS

Every competitive written solicitation above $25,000, and all amendments thereto, must be

available electronically and be linked to or posted on the NECO world wide web site

(

Page 6 of 10

ACQUISITION REFERENCE GUIDE

SIMPLIFIED ACQUISITION PROCEDURES FOR

COMMERCIAL ITEMS

(TEST PROGRAM)

Did you know that you can use Simplified Acquisition Procedures (SAP) for commercial items

as long as the acquisition doesnot exceed $6,500,000?

FAR 13.5 provides for a test program that allows the use of SAP for the purchase of

commercial supplies and services not exceeding $6,500,000. The test period for solicitations

using SAP expires on 1 January 2003, while awards may be made after that date if the

solicitation was issued before 1 January 2003.

What are the advantages of using SAP?

Simplified acquisitions are not subject to the Competition in Contracting Act. FAR

Part 6 does not apply unless you are going to solicit on a sole source basis for a requirement in

excess of $150,000, in which case a J&A is needed (FAR 13.501). (NOTE: The J&A is modified

to reflect an acquisition under the authority of the test program for commercial items.) Instead

of providing for full and open competition, FAR 13.104 requires that you promote competition

to the maximum extent practicable. You can do this by soliciting at least three sources, all of

which can be from within the local trade area. If you are required to synopsize the requirement,

then you should consider combined synopsis/solicitation. When acquiring a commercial item

using commercial item procedures you do not have to comply with the 15 - 30 day publication

and response time requirements. However, if the acquisition is subject to NAFTA (FAR 25.4),

you must allow 40 days between publication and the deadline for response.

You don't have to comply with the evaluation procedures of FAR 14 and 15. FAR 13.106

applies instead. You must consider all quotes/offers received and evaluate them in accordance

with the criteria established in the solicitation. If using price and other factors, the evaluation

should not make submission of quotes/offers cumbersome. No need for a formal evaluation plan

and establishment of a competitive range. No need for discussions or final price revisions.

Evaluation of past performance may be any reasonable basis established by the contracting

officer, including personal knowledge of and experience with the supply or service being

acquired, customer surveys or other similar means. Documentation of the award decision should

be brief and to the point, tailored to the size and complexity of the acquisition (FAR 13.501).

You don't have to provide unsuccessful offerors or quoters with a debriefing, just a brief

explanation of the basis for the contract award decision, if requested.

Page 7 of 10

ACQUISITION REFERENCE GUIDE

NAVSUP Policy Letter SA99-11, dated 8 Feb 99, regarding Commercial Items Test

Program:

FAR Part 12 provides specific guidance on the acquisition of commercial items. Based on

appropriate market research, a determination of commerciality should be made in all

contract files. For requirements between $150,000 and $6.5M, the contracting officer should

determine whether the use of the test program is appropriate for that instant procurement. If

appropriate, the contracting officer should use the procedures found in FAR 13.5. Use of those

procedures would authorize the contracting officer to:

Use the SF1449 as an "RFQ" in conjunction with the synopsis procedures in FAR Part 12

Use "simplified acquisition negotiating techniques" common to awards under SAP;

And use the procurement methods found in FAR Part 13 (e.g. BPA's and PO's).

Unilateral purchase orders are the preferred method to award contracts under the Commercial

Item Test Program. Contracting officers are encouraged to use unilateral awards to the

maximum extent practicable. However, the contracting officer may award a bilateral purchase

order based on the complexity and nature of the requirement.

The following guidance supercedes guidance in Policy letter SA98-19. Contracting officers

should use the same standard procurement identification numbers (PINs) found in DFARS

204.7000 for all simplified acquisition awards including those under the test program. In

addition, contracting officers are reminded that when coding the DD Form 350 for commercial

acquisitions under the test program, the following blocks should be checked:

Block B13A should be identified by the number nine (9)

Block B14 must be checked with a C or D

Block C14 should be checked with a (y).

The Commercial Test Program is affirmatively recommended by DON to be a permanent part of

the regulation.

DON HCAs will add the use of the CI Test Program as a "Special Interest Item" in future

Procurement Management Reviews.

Page 8 of 10

ACQUISITION REFERENCE GUIDE

STREAMLINED ACQUISITION

Combines the synopsis required by FAR 5.203 and the issuance of the solicitation into a single

document. The document is limited to 12,000 textual characters (approximately 3 ½ single-

spaced pages) and is only appropriate where the solicitation is relatively simple without lengthy

addenda. (Fedbizopps link)

The SF1449 is not used for issuing the solicitation. However, in solicitation/synopsis CI buys

the synopsis should emphasize that offerors submit either the SF 1449 or a statement which

parrots the acceptance language in FAR 52.212-1 (b) (11). This statement ensures that offerors

intend to comply with all the terms and certification requirements of the solicitation. Absence of

the statement may be a bar to awarding on initials.

The format and content are as follows:

(a) Items 1 - 16 of the synopsis are prepared in accordance with FAR 5.207

(b) In Item 17, the following statement is included:

"This is a combined synopsis/solicitation for commercial items prepared in accordance with

the format in FAR Subpart 12.6, as supplemented with additional information included in this

notice. This announcement constitutes the only solicitation; proposals are being requested and a

written solicitation will not be issued."

(c) The solicitation number and a statement that the solicitation is being issued as an IFB,

RFQ or RFP.

(d) A statement that the solicitation document and incorporated provisions and clauses are

those in effect through FAC ______.

(e) A notice regarding any set-aside and the associated NAICS code and small business size

standard. Also include a statement regarding the Small Business Competitiveness

Demonstration Program, if applicable.

(f) A list of contract line item number(s) and items, quantities and units of measure,

(including option(s), if applicable).

(g) Description of requirements for the items to be acquired.

(h) Date(s) and place(s) of delivery and acceptance and FOB point.

(i) Statement that FAR 52.212-1 applies and a statement regarding any addenda.

(j) A statement regarding the applicability of the provision at 52.212-2, if used, and the

specific evaluation criteria to be included in paragraph (a) of that provision. If this provision is

not used, describe the evaluation procedures to be used.

Page 9 of 10

ACQUISITION REFERENCE GUIDE

(k) A statement advising offerors to include a completed copy of the provision at FAR

52.212-3 with its offer.

(l) A statement that FAR 52.212-4 applies and a statement regarding any addenda to the

clause.

(m) A statement that FAR 52.212-5 applies to this acquisition and a statement regarding

which, if any, of the additional FAR clauses cited in the clause are applicable to the acquisition.

(n) A statement regarding any additional contract requirements or terms and conditions (such

as financing arrangements or warranty requirements) determined by the KO to be necessary for

this acquisition and consistent with customary commercial practices. (DFARS 252.212-7000 &

252.212-7001)

(o) A statement regarding the Defense Priorities and Allocations System (DPAS) and

assigned rating, if applicable.

(p) A statement regarding any applicable numbered notes.

(q) The date, time and place offers are due.

(r) The name, telephone number, and e-mail address of the individual to contact for

information regarding the solicitation.

MISCELLANEOUS

1. Use of Past Performance - FAR 12.206

2. Contract Quality Assurance - FAR 12.208

3. Pricing of Commercial Items When Contracting by Negotiation - FAR 12.209

4. Contract Financing - FAR 12.210

5. Technical Data - FAR 12.211

6. Computer Software - FAR 12.212

7. Acceptance - FAR 12.402

8. Termination - FAR 12.403

9. Warranties - FAR 12.404

Page 10 of 10