Subpart 12.3 - Solicitation Provisions and

Contract Clauses for the Acquisition of

Commercial Products and Commercial

Services

Parent topic: Part 12 - Acquisition of Commercial Products and Commercial Services

12.300 Scope of subpart.

This subpart establishes provisions and clauses to be used when acquiring commercial products and

commercial services.

12.301 Solicitation provisions and contract clauses for the

acquisition of commercial products and commercial

services.

(a) In accordance with 41 U.S.C. 3307, contracts for the acquisition of commercial products or

commercial services shall, to the maximum extent practicable, include only those clauses—

(1) Required to implement provisions of law or executive orders applicable to the acquisition of

commercial products or commercial services; or

(2) Determined to be consistent with customary commercial practice.

(b) Insert the following provisions in solicitations for the acquisition of commercial products or

commercial services, and clauses in solicitations and contracts for the acquisition of commercial

products or commercial services:

(1) The provision at 52.212-1 ,Instructions to Offerors-Commercial Products and Commercial

Services. This provision provides a single, streamlined set of instructions to be used when soliciting

offers for commercial products or commercial services and is incorporated in the solicitation by

reference (see Block 27 a, SF 1449). The contracting officer may tailor these instructions or provide

additional instructions tailored to the specific acquisition in accordance with 12.302.

(2) The provision at 52.212-3, Offeror Representations and Certifications-Commercial Products and

Commercial Services. This provision provides a single, consolidated list of representations and

certifications for the acquisition of commercial products or commercial services and is attached to

the solicitation for offerors to complete. This provision may not be tailored except in accordance

with subpart 1.4. Use the provision with its Alternate I in solicitations issued by DoD, NASA, or the

Coast Guard.

(3) The clause at 52.212-4, Contract Terms and Conditions-Commercial Products and Commercial

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

consistent with customary commercial practices and is incorporated in the solicitation and contract
by reference (see Block 27, SF 1449). Use this clause with its Alternate I when a time-and-materials

or labor-hour contract will be awarded. The contracting officer may tailor this clause in accordance

with 12.302.

(4) The clause at 52.212-5, Contract Terms and Conditions Required to Implement Statutes or

Executive Orders-Commercial Products and Commercial Services. This clause incorporates by

reference only those clauses required to implement provisions of law or Executive orders applicable

to the acquisition of commercial products or commercial services. The contracting officer shall

attach this clause to the solicitation and contract and, using the appropriate clause prescriptions,

indicate which, if any, of the additional clauses cited in 52.212-5(b) or (c) are applicable to the

specific acquisition. Some of the clauses require fill-in; the fill-in language should be inserted as

directed by 52.104(d). When cost information is obtained pursuant to part 15 to establish the

reasonableness of prices for commercial products or commercial services, the contracting officer

shall insert the clauses prescribed for this purpose in an addendum to the solicitation and contract.

This clause may not be tailored.

(i) Use the clause with its Alternate I when the head of the agency has waived the examination of

records by the Comptroller General in accordance with 25.1001.

(ii)

(A) If the acquisition will use funds appropriated or otherwise made available by the American

Recovery and Reinvestment Act of 2009 (Pub. L. 111-5), the contracting officer shall use the clause

with its Alternate II.

(B)

(1) In the case of a bilateral contract modification that will use funds appropriated or otherwise

made available by the American Recovery and Reinvestment Act of 2009, the contracting officer

shall specify applicability of Alternate II to that modification.

(2) In the case of a task- or delivery-order contract in which not all orders will use funds

appropriated or otherwise made available by the American Recovery and Reinvestment Act of 2009,

the contracting officer shall specify the task or delivery orders to which Alternate II applies.

(C) The contracting officer may not use Alternate I when Alternate II applies.

(c) When the use of evaluation factors is appropriate, the contracting officer may—

(1) Insert the provision at 52.212-2, Evaluation-Commercial Products and Commercial Services, in

solicitations for commercial products or commercial services (see 12.602); or

(2) Include a similar provision containing all evaluation factors required by 13.106, subpart 14.2 or

subpart 15.3, as an addendum (see 12.302(d)).

(d) Other required provisions and clauses. Notwithstanding prescriptions contained elsewhere in the

FAR, when acquiring commercial products or commercial services, contracting officers shall be

required to use only those provisions and clauses prescribed in this part. The provisions and clauses

prescribed in this part shall be revised, as necessary, to reflect the applicability of statutes and

executive orders to the acquisition of commercial products or commercial services.
(1) Insert the provision at 52.204-7, System for Award Management, as prescribed in 4.1105(a).

(2) Insert the clause at 52.204-13, System for Award Management Maintenance, as prescribed in

4.1105(b).

(3) Insert the provision at 52.204-16, Commercial and Government Entity Code Reporting, as

prescribed in 4.1804(a).

(4) Insert the clause at 52.204-18, Commercial and Government Entity Code Maintenance, as

prescribed in 4.1804(c).

(5) Insert the clause at 52.204-21, Basic Safeguarding of Covered Contractor Information Systems,

in solicitations and contracts (except for acquisitions of COTS items), as prescribed in 4.1903.

(6) Insert the provision at 52.204-24, Representation Regarding Certain Telecommunications and

Video Surveillance Services or Equipment, as prescribed in 4.2105(a).

(7) Insert the provision at 52.207-6, Solicitation of Offers from Small Business Concerns and Small

Business Teaming Arrangements or Joint Ventures (Multiple-Award Contracts), as prescribed at

7.107-6.

(8) Insert the provision at 52.209-7, Information Regarding Responsibility Matters, as prescribed in

9.104-7(b).

(9) Insert the provision at 52.209-12, Certification Regarding Tax Matters, as prescribed at

9.104-7(e).

(10) Insert the provision at 52.222-56, Certification Regarding Trafficking in Persons Compliance

Plan, in solicitations as prescribed at 22.1705(b).

(11) Insert the clause at 52.225-19, Contractor Personnel in a Designated Operational Area or

Supporting a Diplomatic or Consular Mission outside the United States, as prescribed in 25.301-4.

(12) Insert the provision at 52.229-11, Tax on Certain Foreign Procurements—Notice and

Representation, in solicitations as prescribed in 29.402-3(a). The representation in the provision at

52.229-11 is not in the System for Award Management.

(13) Insert the clause at 52.229-13, Taxes—Foreign Contracts in Afghanistan, as prescribed in

29.402-4(a).

(14) Insert the clause at 52.229-14, Taxes—Foreign Contracts in Afghanistan (North Atlantic Treaty

Organization Status of Forces Agreement), as prescribed in 29.402-4(b). 

(e) Discretionary use of FAR provisions and clauses. 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 12.302. For example:

(1) The contracting officer may use the provision at 52.201-1, Acquisition 360: Voluntary Survey, as

prescribed in 1.102-3(b).

(2) The contracting officer may include appropriate clauses when an indefinite-delivery type of

contract will be used. The clauses prescribed at 16.506 may be used for this purpose.

(3) The contracting officer may include appropriate provisions and clauses when the use of options is
in the Government’s interest. The provisions and clauses prescribed in 17.208 may be used for this

purpose. If the provision at 52.212-2 is used, paragraph (b) provides for the evaluation of options.

(4) The contracting officer may use the provisions and clauses contained in part 23 regarding the

use of products containing recovered materials and biobased products when appropriate for the item

being acquired.

(5) When setting aside under the Stafford Act (subpart 26.2), include the provision at 52.226-3,

Disaster or Emergency Area Representation, in the solicitation. The representation in this provision

is not in the System for Award Management.

(f) Agencies may supplement the provisions and clauses prescribed in this part (to require use of

additional provisions and clauses) only as necessary to reflect agency unique statutes applicable to

the acquisition of commercial products or commercial services or as may be approved by the agency

senior procurement executive, or the individual responsible for representing the agency on the FAR

Council, without power of delegation.

12.302 Tailoring of provisions and clauses for the

acquisition of commercial products and commercial

services.

(a) General. The provisions and clauses established in this subpart are intended to address, to the

maximum extent practicable, commercial market practices for a wide range of potential Government

acquisitions of commercial products and commercial services. However, because of the broad range

of commercial products and commercial services acquired by the Government, variations in

commercial practices, and the relative volume of the Government’s acquisitions in the specific

market, contracting officers may, within the limitations of this subpart, and after conducting

appropriate market research, tailor the provision at 52.212-1, Instructions to Offerors-Commercial

Products and Commercial Services, and the clause at 52.212-4, Contract Terms and ConditionsCommercial Products and Commercial Services, to adapt to the market conditions for each

acquisition.

(b) Tailoring 52.212-4, Contract Terms and Conditions-Commercial Products and Commercial

Services. The following paragraphs of the clause at 52.212-4, Contract Terms and ConditionsCommercial Products and Commercial Services, implement statutory requirements and shall not be

tailored—

(1) Assignments;

(2) Disputes;

(3) Payment (except as provided in subpart 32.11);

(4) Invoice;

(5) Other compliances;

(6) Compliance with laws unique to Government contracts; and

(7) Unauthorized obligations.
(c) Tailoring inconsistent with customary commercial practice. The contracting officer shall not

tailor any clause or otherwise include any additional terms or conditions in a solicitation or contract

for commercial products or commercial services in a manner that is inconsistent with customary

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

agency procedures. The request for waiver 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 and 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.

(d) Tailoring shall be by addenda to the solicitation and contract. The contracting officer shall

indicate in Block27 a of the SF1449 if addenda are attached. These addenda may include, for

example, a continuation of the schedule of supplies/services to be acquired from blocks 18 through

21 of the SF1449; a continuation of the description of the supplies/services being acquired; further

elaboration of any other item(s) on the SF1449; any other terms or conditions necessary for the

performance of the proposed contract (such as options, ordering procedures for indefinite-delivery

type contracts, warranties, contract financing arrangements, etc.).

12.303 Contract format.

Solicitations and contracts for the acquisition of commercial products or commercial services

prepared using this part 12 shall be assembled, to the maximum extent practicable, using the

following format:

(a) Standard Form (SF) 1449;

(b) Continuation of any block from SF 1449, such as-

(1) Block 10 if an incentive subcontracting clause is used (the contracting officer shall indicate the

applicable percentage);

(2) Block18 B for remittance address;

(3) Block19 for line item numbers;

(4) Block20 for schedule of supplies/services; or

(5) Block25 for accounting data;

(c) Contract clauses-

(1) 52.212-4, Contract Terms and Conditions-Commercial Products and Commercial Services, by

reference (see SF 1449 block27 a);

(2) Any addendum to 52.212-4; and

(3) 52.212-5, Contract Terms and Conditions Required to Implement Statutes or Executive OrdersCommercial Products and Commercial Services.

(d) Any contract documents, exhibits or attachments; and
(e) Solicitation provisions-

(1) 52.212-1, Instructions to Offerors-Commercial Products and Commercial Services, by reference

(see SF 1449, Block27 a);

(2) Any addendum to 52.212-1;

(3) 52.212-2, Evaluation-Commercial Products and Commercial Services, or other description of

evaluation factors for award, if used; and

(4) 52.212-3, Offeror Representations and Certifications-Commercial Products and Commercial

Services.