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;
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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.
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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.
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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.
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*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.
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*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
(
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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.
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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.
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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.
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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
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