Last revised (Transmittal 14-015) September 3, 2020

Guide to Judiciary Policy

Vol. 14: Procurement

Ch. 2: Procurement Planning and Preparations

§ 210 Policy

§ 210.10 In General

§ 210.20 Roles and Responsibilities

§ 210.30 Requesting Office Responsibilities

§ 210.40 Purchasing Office Responsibilities

§ 210.50 Procurement Planning Benefits

§ 210.60 Market Research

§ 210.70 Source Selection Plans

§ 220 Terms and Conditions

§ 220.10 Quality Control/Assurance Requirements

§ 220.15 Acceptance of Products and Services

§ 220.20 Warranties

§ 220.25 Delivery or Performance Schedule

§ 220.30 Liquidated Damages

§ 220.35 Judiciary Property

§ 220.40 Options

§ 220.45 Equipment Lease or Purchase

§ 220.50 Funding Contract Awards

§ 220.55 Contract Financing

§ 220.60 Energy and Environmental Considerations

§ 230 Specifications, Statements of Work, and Product Descriptions

§ 230.10 Overview

§ 230.20 Specifications

§ 230.30 Statements of Work

§ 230.40 Product Descriptions

§ 210 Policy

§ 210.10 In General

(a) Procurement planning is the process by which the efforts of all personnel 

responsible for significant aspects of a procurement are coordinated and 

integrated comprehensively. The formality and detail of the planning and 

preparation process will vary with the size, complexity, mission-criticality, 

and projected dollar value of the requirement.
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(b) Procurement planning must include the related budget planning. Major 

purchases must be planned and budgeted consistently with the court’s 

budget process, governance mechanisms and management reporting 

processes.

(c) A summary of planned major procurements is included as part of 

management reports to the chief judge or other judiciary official identified 

in Guide, Vol. 14, § 120.20.10(b) (Delegation to Chief Judges and Other 

Judiciary Officials). It includes one-year, two-year, and five-year planning 

lead times.

§ 210.20 Roles and Responsibilities

(a) Initiating and planning procurement actions require a team effort. The 

team must include staff from both the requesting and purchasing offices.

(b) Purchasing Office

(1) For judiciary organizations, excluding the Administrative Office of 

the U.S. Courts (AO), the purchasing office is the office where the 

procuring function resides.

(2) In the AO, the purchasing office is the AO’s Procurement 

Management Division (PMD).

(c) Requesting Office

(1) The requesting office is the organizational unit that initiates a 

purchase action by identifying a specific need, such as a judiciary 

organization’s IT staff, chambers staff or facility staff.

(2) Although other judiciary organizations play a role in the 

procurement process, overall responsibility for the contracting 

aspects within the procurement process lies with the contracting 

officer (CO).

(3) However, the planning for major purchases is the responsibility of 

the court unit executive or equivalent.

§ 210.30 Requesting Office Responsibilities

The requesting office must identify, prepare, and provide procurement requirements to 

the purchasing office. The procurement requirements will be in a requirements package 

that contains documents supporting the requirements. Requesting office staff are 

responsible for:
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(a) identifying potential procurement requirements;

(b) initiating discussions with purchasing office staff;

(c) providing a complete requisition, including, but not limited to:

(1) properly approved, in writing, expenditure authority;

(2) any required justifications (e.g., preparing a justification for other 

than full and open competition, if applicable);

(3) description of the essential elements of the proposed purchase;

(A) a clear and specific description of the products or services 

required;

(B) a schedule for delivery or performance;

(C) a list of deliverable data or reports, including:

• media in which they will be furnished,

• frequency,

• due date, and

• recipients;

(d) independently developing a government price or cost estimate for the 

requested products or services, including the base period and all option 

periods, as applicable; and

(e) identifying technical evaluation criteria for use in evaluating offers, if 

appropriate;

(f) conducting market research and suggesting potential sources of supply;

(g) recommending additional information/requirements to be incorporated into 

the solicitation package, including:

• the need for options,

• applicability of special payment terms,

• license prerequisites,

• insurance or warranty requirements,

• the need for an indemnity,

• any special security requirements,

• limitations on subcontracting, and

• other requirement-specific contractual provisions; and
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(h) advising on the necessity of conducting a pre-solicitation or pre-offer 

conference.

§ 210.40 Purchasing Office Responsibilities

The purchasing office will help the requesting office prepare the requirements 

packages, as needed. COs are responsible for:

(a) working with the requesting office to identify upcoming requirements, 

planning how to meet them, and preparing a source selection plan, as 

applicable;

(b) ensuring that purchasing office resources will be available once the 

requesting office has established its requirements;

(c) maintaining effective working relationships with requesting office staff and 

other organizations that participate in the procurement process;

(d) reviewing requirements packages for completeness and clarity;

(e) conducting market research (see: § 210.60 (Market Research)) and 

ensuring that all firms to be solicited are given a fair and equitable 

opportunity to provide their most effective and economical products or 

services;

(f) working directly with requesting office staff to finalize statements of work 

and/or specifications and resolve any deficiencies;

(g) ensuring that any public announcement or advertising requirements are 

met (see: Guide, Vol. 14, § 320 (Contractor Qualifications));

(h) establishing offer evaluation panels as needed (see: § 210.70.40 

(Evaluation Panels));

(i) determining appropriate contract type and terms and conditions;

(j) sending all procurement actions exceeding the CO’s delegation level to 

PMD for review (judiciary organizations excluding the AO);

(k) adhering to the procurement milestone schedule to ensure timely award;

(l) issuing the solicitation package: request for quotations (RFQ); request for 

proposals (RFP); request for information (RFI) (for definitions of these 

terms, see: Glossary of Procurement Terms);

(m) serving as the primary point of contact with potential and actual offerors;
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(n) reviewing the reports from the offer evaluation panel, source selection 

boards, etc., to ensure the evaluation criteria stated in the solicitation are 

applied properly;

(o) determining the most advantageous offer (where there is no designated 

Source Selection Authority (SSA) other than the CO); and

(p) executing the award.

§ 210.50 Procurement Planning Benefits

Among the benefits of procurement planning are:

(a) saving the judiciary money by obtaining price reductions through quantity 

discounts;

(b) allowing better workload planning and scheduling;

(c) consolidating requirements for greater economies;

(d) providing sufficient lead time and resources in the selection of appropriate 

contract types and development of innovative contracting methods;

(e) providing sufficient time to obtain required approvals before submission of 

requisitions;

(f) identifying and obtaining necessary reviews and approvals throughout the 

procurement process;

(g) allowing for early identification and resolution of potential problems;

(h) ensuring the adequacy of specifications or statements of work;

(i) identifying a sufficient number of capable sources to promote adequate 

competition;

(j) preventing unrealistic delivery or performance schedules; and

(k) receiving acceptable products and services in a timely manner.

§ 210.60 Market Research

§ 210.60.10 In General

Market research is central to sound procurement planning and must be addressed by 

the whole procurement team. Market research helps identify:
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(a) products or services that are available to satisfy a requirement;

(b) whether the judiciary’s minimum requirements are practical/realistic;

(c) source availability to furnish the required products or services;

(d) how to appropriately describe the requirements; and

(e) whether cost estimates and schedules are realistic.

§ 210.60.20 Market Research Methods

(a) Market research methods include:

(1) conducting industry briefings or presolicitation discussions or 

conferences with potential contractors to discuss requirements and 

to obtain recommendations;

(2) publicizing new specifications and, when appropriate, issuing 

solicitations for informational or planning purposes far enough in 

advance to permit generation and consideration of industry 

comments;

(3) attending industry and scientific conferences and acquiring 

literature about commercial products, industry trends, product 

availability, business practices, product/service reliability, and 

prices;

(4) analyzing the purchase history of requirements to determine the 

level of competition, prices, and performance results;

(5) publishing sources-sought notices according to Guide, Vol. 14, 

§ 315 (Publicizing Open Market Procurement Actions); or

(6) consulting with AO staff, other judiciary organizations, other 

government agencies, or non-profit organizations.

(b) Market research generally does not include the temporary “trial” or 

“demonstration” use of equipment/products delivered to and used within 

the judiciary organization’s facilities. Only if it can be definitely determined 

that the eventual purchase will not exceed the applicable competition

threshold — $10,000 for open market purchases ($25,000 for training 

products); $10,000 for GSA schedule purchases — may equipment or 

products be used on a “trial” basis in this manner.

(c) When a product demonstration is desired as part of the evaluation process 

of a solicitation, the solicitation must require that all competing offerors 
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provide a demonstration of their product. The solicitation also may not 

impose undue costs on offerors to provide demonstrations within the 

judiciary organization’s facilities versus providing the demonstration at the 

offeror’s facilities. For example, requiring each competing offeror to 

deliver a proposed copier to the court’s offices to do a demonstration 

rather than performing the demonstration at the offeror’s facilities would be 

imposing an undue cost.

(d) Any solicitation requiring product demonstrations as part of the evaluation 

process must be approved by PMD.

§ 210.60.30 Market Research Results

Market research results may include:

(a) assessing the suitability and adaptability of commercially available 

products or services to satisfy judiciary requirements;

(b) identifying those elements of the requirements that may pose significant 

risks and added costs; or

(c) determining the status of applicable technology and the extent and 

success of its commercial application.

§ 210.60.40 Solicitation Provision

The CO will insert Provision 2-1, Request for Information or Solicitation for Planning 

Purposes in solicitations issued for planning or informational purposes, and clearly note 

on the face of the solicitation that it is for information or planning purposes only. The 

CO will appropriately fill in the provision’s blank spaces.

§ 210.70 Source Selection Plans

§ 210.70.10 General

The CO will develop a source selection plan for each competitive procurement that is:

(a) above the judiciary’s small purchase threshold (see: Guide, Vol. 14, 

§ 325.10 (Applicability)) or

(b) below the judiciary’s small purchase threshold when the CO determines a 

best value solicitation is appropriate.

§ 210.70.20 Plan Requirements

The CO will develop the source selection plan in collaboration with the evaluation panel, 

requesting office, and other advisors as needed.
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(a) The plan must outline the objective of the procurement and address 

operational requirements, the independent government estimate of the 

cost, and any special requirements for quality and reliability.

(b) If using best value, the plan must also include evaluation factors, tailored 

to the specific needs and nature of the specific procurement. The 

evaluation factors must address the significant discriminating areas that 

will be considered in evaluating and determining the best choice. The 

source selection plan must include:

• the order of relative importance of the factors, and

• the evaluation methods and procedures that will be used in 

evaluating competing offers.

§ 210.70.30 Source Selection Processes

(a) Technically acceptable lowest price source selection is used when a 

contract will be awarded to the technically acceptable offeror offering the 

lowest price. Solicitations using this approach must state the judiciary’s 

minimum technical requirements. For example, a copy machine’s 

technical standard could be the number of pages photocopied per minute. 

All offers meeting or exceeding these technical requirements will be 

evaluated based on price. Technically acceptable lowest price:

(1) is best suited for procurements where the judiciary is acquiring a 

product or routine service for which it has a well-defined 

specification or statement of work; and

(2) will include commercial or off-the-shelf products or services where 

there has been no justification for a best value source selection.

(b) Best value source selection is used for procurements when the quality of 

performance above the minimum acceptable level is necessary or will 

enhance critical mission accomplishment. The best value method:

(1) involves an evaluation and comparison of technical, experience and 

performance factors.

(2) is suitable only for certain types of negotiated procurements and is 

more complicated to conduct than the technically acceptable lowest 

price approach.

(3) is preferred when the judiciary is buying professional and technical 

services, or a product to be built to a performance specification.
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(4) requires the CO (or other source selection official) to make a 

meaningful price/technical trade-off decision, which is derived from 

an analysis of the offers measured against the evaluation criteria.

(5) requires that the solicitation clearly state:

(A) all evaluation factors and significant subfactors that will 

affect the award decision,

(B) their relative importance, and

(C) whether all evaluation factors other than cost or price, when 

combined, are significantly more important, equal to, or 

significantly less important than cost or price.

(6) allows award to other than the lowest price offer, but the 

price/technical trade-off documentation must justify the 

determination to make award other than to the lowest 

priced/technically acceptable offer.

§ 210.70.40 Evaluation Panels

For each source selection plan, the CO must establish an evaluation panel.

(a) The size and membership depend upon the purchase’s:

• size,

• scope,

• complexity, and

• mission-criticality of the goods or services being procured.

(b) Evaluation panel responsibilities include the following:

(1) assist the CO in developing a source selection plan;

(2) evaluate the offers received, efficiently and impartially, consistent 

with:

• the source selection plan, and

• the evaluation factors included in the solicitation; and

(3) present a written report of its findings to the CO or Source Selection 

Authority. The report will contain narrative statements discussing 

the major strengths and weaknesses of the various offers as 

compared to the evaluation factors. This report will be used by the 
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CO to hold discussions, if necessary, and will be used to select the 

successful offeror.

(c) Evaluation panel efforts may be limited to:

(1) one panel but two separate reviews:

• first reviewing the technical offers,

• then with cost or price evaluated; or

(2) subpanels may be established for separate evaluation of:

• the technical offer, and

• the proposed price.

(d) It may occasionally be appropriate to contract with outside consultants to 

participate in evaluation panels when the necessary expertise does not 

exist within the judiciary. An outside evaluator must sign a non-disclosure 

agreement before being given access to any offer information.

§ 210.70.50 Evaluation Factors and Sub-Factors

Properly chosen and clearly stated evaluation factors are essential to effective offer 

evaluation and proper ratings by evaluation panel members. Evaluation factors to be 

used for commercial off-the-shelf product solicitations are generally less complex. 

Evaluation sub-factors may be established under the appropriate factor. For example, 

under a “management plan” factor, there could be sub-factors for “organization” and 

“quality control plan.”

(a) Evaluation factors and sub-factors must be consistent with the objectives 

of the purchase. Cost or price related factors or sub-factors and past 

performance ratings are always evaluated, even if their relative weight 

(i.e., importance) is low relative to technical factors.

(b) The appropriate weight must be stated for each factor or sub-factor in 

relation to the other factors/sub-factors.

(c) These weights could be stated as:

(1) a list of the factors and sub-factors with a statement that they are in 

descending order of importance;

(2) a statement that one factor or sub-factor is more important, or 

significantly more important, than another; or
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(3) any other expression that clearly communicates the relative weight 

of the factors or sub-factors and indicates factors or sub-factors that

are of equal weight.

(d) The absence of a statement in the solicitation reflecting the relative 

weight(s) of evaluation factors or sub-factors will be construed as all 

factors or sub-factors being of equal weight.

(e) Use of too many factors and sub-factors can:

• unduly complicate and extend the evaluation process;

• dilute essential evaluation elements; and

• lead to an unintended leveling of the evaluation scores. (Note: 

Leveling of the scores tends to make the offers appear to be equal, 

when in fact they are not. This will make the final choice more 

difficult.)

(f) Examples of evaluation factors other than cost or price that may apply are:

• a demonstrated understanding of the solicitation requirement;

• a clearly developed management plan;

• an effective quality assurance plan;

• qualified and experienced key personnel;

• adequate resources;

• appropriate experience; and

• excellence of design.

§ 210.70.60 Cost or Price Related Factors

Cost or price related factors must be treated and evaluated separately from the other 

evaluation factors. The weight to be given to them must always be stated relative to the 

other evaluation factors in the solicitation, and may increase in importance if the 

technical ranking of offerors is close. Cost/price offer specifics (e.g., proposed number 

of hours in each labor category) can also provide insight into an offeror’s understanding 

of the requirement, their resources, or other evaluation factors.

§ 210.70.70 Rating Systems

Many forms of rating systems are suitable for evaluation purposes, from adjectival 

ratings (outstanding/excellent/good) to color codes (blue/green/yellow/red) to various 

forms of numerical scoring. Depending on the specific procurement, one system may 

be preferable to another. However, the rating system used must be:

• simple,
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• practical, and

• applied consistently to all proposals by the evaluation panel members.

§ 220 Terms and Conditions

§ 220.10 Quality Control/Assurance Requirements

§ 220.10.10 In General

The CO must include the appropriate quality control/assurance requirements in all 

solicitations and contracts. The type and extent of contract quality control/assurance 

requirements depend on the complexity, size, and risks for delivery or completion of 

service or product involved in the procurement. Such requirements range from 

inspection at time of delivery to the contractor’s implementation of a comprehensive 

quality control program. Solicitations and contracts may provide for alternate inspection 

methods to promote competition and lower costs. The solicitation may also permit 

contractor-recommended alternatives.

§ 220.10.20 Small Purchase Procedures

For products or services purchased using small purchase procedures, the judiciary 

usually relies on the contractor to accomplish all appropriate inspection and testing to 

ensure the deliverables conform to contract quality requirements up to the point of 

delivery to the judiciary for acceptance. For these types of purchases, the rights 

described in paragraph (d) of Clause 3-3, Provisions, Clauses, Terms and Conditions –

Small Purchases are sufficient to protect the judiciary in the event of nonconforming 

services or products.

§ 220.10.30 Inspection Before Delivery

When the CO determines that the judiciary needs to test the products or services before 

delivery, or decides that the contractor’s internal work processes are insufficient, the 

judiciary should not rely on inspection by the contractor. When making these 

determinations, the CO must consider the:

(a) nature of the products or services being purchased and their intended use;

(b) potential losses in the event of defects;

(c) likelihood of uncontested replacement or correction of defective work; and

(d) cost of detailed inspection.
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§ 220.10.40 Standard Inspection Terms

For procurements in excess of the small purchase threshold, both Clause 2-5A, 

Inspection of Products and Clause 2-5B, Inspection of Services include the following 

standard inspection terms/requirements:

(a) the contractor is required to provide and maintain an internal inspection 

system acceptable to the judiciary;

(b) the judiciary has the right to make inspections and tests while work is in 

process, if appropriate; and

(c) the contractor is required to keep and make available to the judiciary 

complete records of its inspection system.

§ 220.10.50 Quality Assurance at Judiciary Site or Destination

(a) Quality assurance performed at destination is normally limited to 

inspection of the products or services. Inspection is appropriate at 

destination when:

(1) products are commercial or off-the-shelf and require no technical 

inspection;

(2) necessary testing equipment is located only at destination;

(3) the procurement is for services performed at destination; or

(4) it is determined to be in the judiciary’s interest.

(b) For information on remedies available to the judiciary in the event 

nonconforming goods or services are delivered after award, see: Guide, 

Vol. 14, § 735.30 (Nonconforming Products or Services).

§ 220.10.60 Quality Assurance at Contractor Site or Origin

Solicitations and contracts must require that quality assurance, including inspection, be 

performed at origin (contractor’s site) when:

(a) performance at any other place would require uneconomical disassembly 

or destructive testing;

(b) considerable loss would result from the manufacture and shipment of 

unacceptable products or from a delay in making necessary corrections;

(c) special required instruments, gauges, or facilities are available only at

origin;
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(d) performance at any other place would destroy or require the replacement 

of costly packing and packaging; or

(e) it is determined to be in the judiciary’s interest.

§ 220.10.70 Clauses for Inclusion in Solicitations or Contracts

The CO will include the following clause(s), as indicated, in the solicitation or contract 

document:

§ 220.10.70 Clauses for Inclusion in Solicitations or Contracts

Clause or Provision is included... 

(a) Clause 2-5A, Inspection 

of Products

In all solicitations and contracts for products, which are 

expected to exceed the judiciary’s small purchase threshold. 

The CO may include in solicitations and contracts below the 

judiciary’s small purchase threshold if the CO determines 

inclusion is in the judiciary’s interest.

(b) Clause 2-5B, Inspection 

of Services

In all solicitations and contracts for services, which are 

expected to exceed the judiciary’s small purchase threshold, 

unless another appropriate inspection clause applies (e.g., 

Clause 5-10, Inspection of Professional Services). The CO 

may include in solicitations and contracts below the judiciary’s 

small purchase threshold if the CO determines inclusion is in 

the judiciary’s interest.

(c) Clause 2-10, 

Responsibility for 

Products

In solicitations and contracts for (a) products or (b) services 

involving the furnishing of products, when a fixed-price contract 

is contemplated and the contract is expected to exceed the 

small purchase threshold. The CO may include the clause in 

actions below the small purchase threshold when the CO 

determines the clause is needed.

(d) Clause 7-95, Contractor 

Inspection 

Requirements

In solicitations and contracts for products or services when the 

contract amount is expected to be at or below the judiciary’s 

small purchase threshold and inclusion of the clause is 

necessary to ensure an explicit understanding of the 

contractor’s inspection responsibilities.

(e) Clause 7-100A, 

Limitation of Liability 

(Products)

In all solicitations and contracts in excess of the judiciary’s 

small purchase threshold requiring delivery of products.

(f) Clause 7-100B, 

Limitation of Liability 

(Services)

In all solicitations and contracts in excess of the judiciary’s 

small purchase threshold requiring performance of services. 
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§ 220.15 Acceptance of Products and Services

§ 220.15.10 Definition

Acceptance constitutes acknowledgment that the products or services provided conform 

to applicable quality and quantity requirements of the contract.

§ 220.15.20 Solicitation and Contract Requirements

Solicitations and contracts must specify the time, place and criteria for acceptance. 

Failure to provide clear and unambiguous criteria for acceptance can undermine the 

judiciary’s ability to reject unacceptable products and/or services. Acceptance may take 

place before delivery, at the time of delivery, or after delivery. Products or services will 

ordinarily not be accepted before completion of judiciary contract quality assurance 

actions. Service contracts may include a deduction schedule stating how much or how 

to calculate what may be deducted from the contractor’s invoice for unsatisfactory 

performance.

§ 220.15.30 Transfer of Title and Risk of Loss (Products Only)

(a) Title to products will pass to the judiciary upon formal acceptance,

regardless of when or where the judiciary takes physical possession, 

unless the contract specifically provides for earlier transfer of title. An 

example of when it might be appropriate to specify earlier transfer of title is 

if it is anticipated that delivery of the product(s) will be significantly in 

advance of installation and final acceptance (e.g., when equipment is 

ordered and delivered during a renovation project and cannot be installed 

until the renovation is completed). In this instance, if the product will be 

under the judiciary’s control for a lengthy period of time before 

acceptance, specifying earlier transfer of title may be appropriate.

(b) Unless the contract specifically provides otherwise, inclusion of Clause 2-

10, Responsibility for Products means that risk of loss of or damage to 

products will remain with the contractor until, and will pass to the judiciary 

upon:

(1) delivery of the products to a carrier, if transportation is F.O.B.

origin; or

(2) acceptance by the judiciary or delivery of the products to the 

judiciary at the destination specified in the contract, whichever is 

later, if transportation is F.O.B. destination.

(c) Paragraph (b) of this section will not apply to products that so fail to 

conform to contract requirements as to give a right of rejection. The risk of 

loss of or damage to such non-conforming products remains with the 
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contractor until cure or acceptance. After cure or acceptance, paragraph 

(b) of this section will apply. For information on acceptance and rejection 

and cure, see: Guide, Vol. 14, § 735 (Quality Assurance).

(d) The contractor will not be liable for loss of, or damage to, products that is 

caused by the negligence of officers, agents, or employees of the judiciary 

acting within the scope of their employment.

§ 220.20 Warranties

§ 220.20.10 In General

A warranty clause must be used when it is in the judiciary’s interest to have the right to 

assert claims regarding defective products or services after their acceptance. A 

warranty clause gives the CO additional time after acceptance to require contractor 

correction of deficiencies or defects, re-performance, an equitable adjustment in the 

price, or other appropriate remedies. Warranties should generally not be used in cost 

contracts, labor-hour or time-and-material contracts.

§ 220.20.20 Warranty Variables

(a) Warranty coverage may begin with delivery or at the occurrence of a 

specified event (e.g., equipment installation).

(b) This coverage may continue for a given number of days or months or until 

the occurrence of another specified event.

(c) The value of a warranty clause depends upon the particular products or 

services being procured.

(d) The clause, its use, terms, and conditions are influenced by many factors 

and must be tailored to fit the specific purchase and individual risks 

involved.

(e) It is important to remember that a contractor may factor warranty clause 

requirements into an item’s purchase price, making it more expensive. In 

addition, there is a cost to the judiciary in administration and enforcement 

of the warranty.

(f) For additional information on enforcing warranties, see: Guide, Vol. 14, 

§ 735.50 (Express Warranties).

§ 220.20.30 Criteria for Requiring a Warranty

With input from the requesting office as to their needs, the CO decides whether or not to 

require and use a warranty clause. The clause may be used either for individual 
Guide to Judiciary Policy, Vol. 14, Ch. 2 Page 17

purchases or classes of purchases. Before making this decision, the CO must consider 

the following:

(a) cost of the warranty (including the effect of a warranty on pricing and the 

administrative cost of enforcing the warranty);

(b) criticality of meeting specifications;

(c) potential damage to the judiciary in the event of defective performance;

(d) cost of correction or replacement, either by the contractor or another 

source, in the absence of a warranty;

(e) ability to take advantage of the warranty, considering shipping time, 

distance of the user from the source, and other factors;

(f) the effect of the warranty as a deterrent against deficiencies;

(g) the extent to which acceptance is to be based upon contractor inspection 

or quality control;

(h) whether the inspection and acceptance system provides adequate 

protection against deficiencies;

(i) reliance on brand-name integrity;

(j) whether a warranty is regularly given for a commercial component of a 

more complex end item;

(k) whether the product or service is intended for the safety or protection of 

employees;

(l) the stage of development of the item and the state of the art;

(m) customary trade practices; and

(n) the level of difficulty of detecting defects before acceptance.

§ 220.20.40 Warranty Clauses for Inclusion in Solicitations or Contracts

A warranty clause may be included in solicitations and contracts as indicated in the

table below.
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§ 220.20.40 Warranty Clauses for Inclusion in Solicitations or Contracts

Clause or Provision is included in... 

(a) Provision 2-15, Warranty 

Information

solicitations for products or services, if warranties are 

customary in the trade.

(b) Clause 2-20A, Incorporation 

of Warranty

solicitations and contracts when it is anticipated that a 

contractor’s standard commercial warranty will be offered.

(c) Clause 2-20B, Contractor 

Warranty (Products)

solicitations and contracts for products when the CO has 

made a written determination for the file that a warranty is 

appropriate for the products being purchased and that the 

benefits are expected to outweigh the costs.

(d) Clause 2-20C, Warranty of 

Services

solicitations and contracts for services when the CO has 

made a written determination for the file that a warranty is 

appropriate for the services being purchased and that the 

benefits are expected to outweigh the costs.

§ 220.25 Delivery or Performance Schedule

§ 220.25.10 In General

An essential element of the solicitation and contract is a realistic delivery or 

performance schedule, which must be clearly stated. The solicitation and contract must 

specify the delivery mode, as well as the time and place of delivery or performance.

§ 220.25.20 Solicitation Delivery Instructions

Solicitation delivery instructions must specify the F.O.B. point, defined as follows:

(a) F.O.B. Destination

F.O.B. destination means that the consignor or seller is responsible 

for delivery of the products to a destination specified in the 

solicitation, usually a judiciary office. Unless the contract provides 

otherwise, the cost of shipping and risk of loss are borne by the 

seller or consignor. Title to the products passes to the judiciary 

when the products arrive at the stated destination; or

(b) F.O.B. Origin

F.O.B. origin means that the consignor or seller is responsible for 

delivery of the products to the carrier (e.g., rail station, airport, post 

office). Unless the contract provides otherwise, the cost of shipping 

and risk of loss must be borne by the judiciary, either as a 

separately identifiable invoice amount paid to the contractor over 

and above the price of the product purchased or through a 
Guide to Judiciary Policy, Vol. 14, Ch. 2 Page 19

separately awarded shipping contract. Title passes to the judiciary 

when delivery is made to the carrier. The contractor’s risk is limited 

to loss or damage caused by improper marking or packing of the 

products.

§ 220.25.30 Selecting the F.O.B. Point

The F.O.B. point must be determined on the basis of overall costs involved. It is 

important to remember that delivery clauses impact an item’s price. The destination 

shipment expense may be included in an item’s purchase price, and make it more 

expensive. The CO must consider that lower freight rates may be available to the 

judiciary and that government-controlled transportation may be available.

§ 220.25.40 Acceptance at Destination

When acceptance of products is at destination, the purchase document delivery terms 

must specify F.O.B. destination.

§ 220.25.50 Liquidated Damages

If the judiciary can expect to suffer damage from late delivery or performance, liquidated 

damages may be included in the solicitation or contract (see: § 220.30 (Liquidated 

Damages)).

§ 220.25.60 Delivery Schedules

(a) Delivery or performance schedules may be expressed in terms of:

(1) Specific calendar dates;

(2) Specific periods from the date of the contract (i.e., from the date of 

award or from the date shown as the effective date of the contract);

(3) Specific periods from the date of receipt by the contractor of the 

notice of award (including notice by receipt of an executed contract 

document from the judiciary); or

(4) Specific time for delivery after receipt by the contractor of each 

individual delivery order issued under the contract, as in indefinite 

delivery type contracts.

(b) A solicitation’s delivery schedule may be a firm date and state that it is 

based upon an assumption that award will be made by a certain date. In 

the event that award is made after that date, the delivery schedule must 

be appropriately adjusted in order not to curtail the delivery time to the 

prejudice of the contractor because of delay by the judiciary in making an 

award.
Guide to Judiciary Policy, Vol. 14, Ch. 2 Page 20

(c) If the delivery schedule is based on the date of the contract, the 

contracting officer will mail or otherwise furnish to the contractor the 

contract, notice of award, or other contract document not later than the 

date of the contract.

(d) If the delivery schedule is based on the date the contractor receives the 

notice of award, or expressed in terms of specific calendar dates on the 

stated assumption that notice of award will be received by a specified 

date, the CO will send the contract, notice of award or other contract 

document by certified mail, return receipt requested, or by any other 

method that will provide evidence of the date of receipt by the contractor.

§ 220.25.70 Product-Related Delivery Clauses and Provisions

The CO will include the following clause(s) as applicable in the solicitation or contract 

document:

§ 220.25.70 Product-Related Delivery Clauses and Provisions

Clause or Provision is included in...

(a) Clause 2-25A, Delivery 

Terms and Contractor’s 

Responsibilities

solicitations and contracts for products or services involving 

the furnishing of products.

(b) Clause 2-25B, 

Commercial Bill of 

Lading Notations

cost-reimbursement or fixed price F.O.B. origin solicitations 

and contracts for products or services involving the furnishing 

of products anticipated to exceed the judiciary’s small 

purchase threshold. The CO will appropriately fill in the 

clause’s blank spaces.

(c) Clause 2-30A, Time of 

Delivery

solicitations and contracts that specify a required delivery 

schedule, but the judiciary may consider an earlier delivery 

advantageous.

(d) Clause 2-30B, Desired 

and Required Time of 

Delivery

solicitations and contracts when the judiciary desires delivery 

by a certain time, but requires delivery by a specified later 

time, and the delivery schedule is to be based on the date of 

the contract award. 

(e) Clause 2-35, F.O.B.

Destination, Within 

Judiciary’s Premises

solicitations and contracts when delivery term is F.O.B.

destination within the judiciary’s premises (e.g., delivery of 

heavy equipment by the contractor to a specific room within a 

building rather than to a loading dock).

(f) Clause 2-40A, Variation 

in Quantity

solicitations and contracts when authorizing a variation in 

quantity in fixed-price contracts for products or for services 

that involve the furnishing of products. The CO will 

appropriately fill in the clause’s blank spaces.
Guide to Judiciary Policy, Vol. 14, Ch. 2 Page 21

§ 220.25.70 Product-Related Delivery Clauses and Provisions

Clause or Provision is included in...

(g) Clause 2-40B, Delivery 

of Excess Quantities

solicitations and contracts when a fixed-price products 

contract is contemplated and the judiciary may be willing to 

accept a quantity greater than that specified.

(h) Clause 2-45, Packaging 

and Marking

all solicitations and contracts for products, or for services 

involving the furnishing of products.

(i) Clause 2-95, Material 

Requirements

solicitations and contracts for products that are not 

commercial or off-the-shelf items.

(j) Provision 2-105, 

Economic Purchase 

Quantity-Products

solicitations for products unless:

• the purchase is being made under a GSA multiple award 

schedule;

• the CO determines the judiciary already has the data;

• the data is not otherwise readily available; or

• it is impracticable for the judiciary to vary its future 

requirements to take advantage of economic purchase 

quantities.

§ 220.25.80 Service-Related Provisions and Clauses

Procurement planning also requires the CO to determine the applicability of various 

provisions and clauses to the performance of services. Include the following provisions 

and clauses as indicated:

§ 220.25.80 Service-Related Provisions and Clauses

Clause or Provision is included in...

(a) Clause 2-50, 

Continuity of 

Services

solicitations and contracts for services, when:

(1) the services are considered vital to the judiciary;

(2) the services must be continued without interruption;

(3) a successor (either the judiciary or another contractor), is likely to 

continue the services upon contract expiration; and

(4) the judiciary anticipates difficulties during the transition from one 

contractor to another, or from the contractor to the judiciary.

(b) Clause 2-55, 

Privacy or Security 

Safeguards

all solicitations and contracts for information technology that require 

security of information technology, and/or are for the design, 

development, or operation of a system of records using commercial 

information technology services or information technology support 

services.
Guide to Judiciary Policy, Vol. 14, Ch. 2 Page 22

§ 220.25.80 Service-Related Provisions and Clauses

Clause or Provision is included in...

(c) Clause 2-60, 

Stop-Work Order

all solicitations and contracts.

(d) Clause 2-65, Key 

Personnel

solicitations and contracts for services when it is necessary to identify 

contractor key personnel because they have the required expertise. 

The CO may determine that this clause is not necessary, either 

because contractor flexibility is desired, or it is cost prohibitive to pay 

extra for specific expertise. The CO will appropriately fill in the 

clause’s blank spaces to identify, for the solicitation, the labor 

categories or positions considered key and, in the contract award, the 

individuals identified for these key positions in the successful offeror’s 

proposal.

(e) Provision 2-70, 

Site Visit

solicitations for services to be performed in judiciary facilities, when a 

site visit is deemed appropriate.

(f) Clause 2-140, 

Judiciary IT 

Security 

Standards

solicitations and contracts involving systems integration or software 

development. The clause may be included in solicitations and 

contracts for software services if inclusion is determined appropriate 

after coordination with the AO’s IT Security Office and OGC.

§ 220.30 Liquidated Damages

§ 220.30.10 In General

Liquidated damages are one of several remedies the judiciary may use when a delay in 

delivery or performance, attributable to the contractor, will cause damage to the 

judiciary. The CO must receive written approval from PMD before including a liquidated 

damages clause in the solicitation. For guidance on imposing liquidated damages after 

contract award, see: Guide, Vol. 14, § 735.25 (Assessing Liquidated Damages).

§ 220.30.20 Applicability

Liquidated damages may be included in solicitations and contracts when:

(a) the time, delivery, or performance is such an important factor in the 

performance of the contract that the judiciary may reasonably expect to 

suffer damage if the delivery or performance is delinquent; and

(b) the amount of actual damages would be difficult or impossible to 

determine or prove.

§ 220.30.30 Basis of Liquidated Damages Amount

Liquidated damages must not be used punitively for a contractor’s failure or as a 

negative performance incentive, but only as a re-payment of judiciary loss. Any formula 
Guide to Judiciary Policy, Vol. 14, Ch. 2 Page 23

for calculating liquidated damages must be based on an analysis of the procurementspecific anticipated amount of judiciary losses that would directly result from delay in 

contractor delivery or performance.

§ 220.30.40 Determination and Documentation

(a) The CO must determine and document in the file in each case:

(1) why the use of liquidated damages is appropriate; and

(2) how the rate was determined reasonable, and not punitive.

(b) The determined rate must, at a minimum, cover the estimated cost of 

inspection and oversight for each day of delay. Whenever the judiciary is 

likely to suffer other specific damages due to a contractor-caused delay, 

the rate must also include an amount for these damages. Examples of 

specific damages are the:

• cost of substitute facilities,

• cost of lost work-hours or productivity, or

• rental of buildings or equipment.

§ 220.30.50 Clause

If PMD approves use of liquidated damages, include Clause 2-75, Liquidated Damages 

in solicitations and contracts, inserting in the blank the dollar amount of the damages to 

be assessed per day (or per alternate unit of time) in the event of contractor caused 

delay.

§ 220.35 Judiciary Property

(a) The judiciary may provide materials or other property to a contractor for its 

use in performance of a contract when doing so will result in significant 

economies, standardization, expedited production, or when it is otherwise 

in the judiciary’s interest.

(b) Judiciary-furnished property must be specified in the solicitation and the 

resulting award document in sufficient detail (including inventories or 

requisitioning procedures) to enable offerors to evaluate the requirement 

and consider it in their pricing proposal.

(c) When the judiciary will furnish property, the solicitation and resulting 

award document must include Clause 2-80, Judiciary Property. See also: 

Guide, Vol. 14, § 720 (Judiciary Property).
Guide to Judiciary Policy, Vol. 14, Ch. 2 Page 24

§ 220.40 Options

§ 220.40.10 In General

Options are useful tools for soliciting either future periods of performance for services or 

for soliciting a combination of minimum base (i.e., “must have”) products and optional 

products that are desired, but could be omitted if they exceed the funding available. 

Inclusion of an option in a contract provides the judiciary with a unilateral right by which, 

during a time period specified in the solicitation or contract, the judiciary may elect to 

purchase additional products or services called for by the solicitation or contract, or may 

elect to extend the term of the contract. Options may be included in solicitations and 

contracts when:

(a) increased requirements during the performance period are anticipated and 

subsequent competition would be impractical due to such factors as 

production lead-time and delivery requirements;

(b) continuing performance past the original performance period may be 

required; or

(c) it is unclear that funding will be available for all items solicited, such as 

when soliciting for furniture, in which case certain items may be listed as 

optional and awarded only if there are sufficient funds to include them in 

the award.

Note: Options that have been priced and evaluated in a competitive procurement are 

preferable to negotiating a price for additional quantities or time extensions with the 

successful contractor after award of a contract. The judiciary will generally receive 

more favorable pricing when the options are separately identified and priced in the initial 

offer. If, after award, a need arises for additional quantities or continued performance, 

the CO must determine whether the new quantity or time extension may be considered 

to be within the original scope of the contract or not. Additional quantities or continued 

performance that cannot be considered within scope must be the subject of a new 

competitive procurement or justified as a sole source procurement. See: Guide, Vol. 

14, § 335 (Justification and Approvals for Limiting Competition).

§ 220.40.20 Option Pricing

Solicitations must clearly identify those products or services that are considered to be 

optional and instruct offerors to price each option separately. Solicitations normally 

should allow options to be offered without limitation as to price, especially if the 

option(s) will be considered in the evaluation for award. Any restriction on option pricing

(e.g., requiring option quantities of products to be priced the same as the base 

quantities) must be approved by PMD before the solicitation is issued.
Guide to Judiciary Policy, Vol. 14, Ch. 2 Page 25

§ 220.40.30 Restrictions

Option provisions and clauses may not be included in solicitations or contracts when:

(a) the contractor would be required to incur undue risks (e.g., when the price 

or availability of necessary materials or labor cannot be reasonably 

estimated);

(b) market prices for the products or services involved are likely to fluctuate or 

change substantially (e.g., sometimes in procurement of paper, petroleum,

or petroleum-based products); or

(c) the option represents known firm requirements for which funds are 

available, unless:

(1) the basic quantity is a learning or testing quantity and there is some 

uncertainty as to contractor or equipment performance, and

(2) competition for the option is impracticable once the initial contract is 

awarded.

§ 220.40.40 Limitations on Options

In the case of options for the performance of services, the total of the base and option 

periods must not exceed five years for contracts that are subject to the Service Contract

Labor Standards.

§ 220.40.50 Required Contract Terms

The solicitation and resulting contract must specify:

(a) the limits of the option(s) as to additional quantities of products and/or 

services that may be purchased;

or

(b) the duration of the period for which performance may be extended under 

period of performance option(s);

and

(c) the time period or window within which the option(s) may be exercised. 

This period must be set to give the contractor adequate notice for 

performance under the option. In determining the period, consideration 

must be given to the necessary lead-time to ensure continuous production 

in a manufacturing context or employee retention in an on-going services 

context and the time required for additional funding and other approvals. 
Guide to Judiciary Policy, Vol. 14, Ch. 2 Page 26

The time period for exercising the option must always be kept to a 

minimum.

§ 220.40.60 Option Provisions and Clauses

(a) A solicitation that includes options must inform competing offerors of how 

the option quantity or option period will be evaluated for award. 

Incorporate one of the following Evaluation of Options provisions, as 

applicable.

§ 220.40.60(a) Evaluation of Options Provisions

Provision is included in solicitations...

(1) Provision 2-85A, 

Evaluation Inclusive 

of Options

when price evaluation will include the option prices.

(2) Provision 2-85B, 

Evaluation Exclusive 

of Options

when price evaluation will exclude the option prices. Note: Use 

of this provision may not result in obtaining the most 

advantageous prices for the option periods or quantities.

(3) Provision 2-85C, 

Evaluation of Options 

Exercised at Time of 

Contract Award

when the CO has determined that there is a reasonable 

likelihood that the option will be exercised, and it may be 

desirable to exercise the option at the time of award. For 

example, the solicitation includes a number of items of furniture, 

some of which are identified as optional, that will be awarded 

only if sufficient funds are available at the time of award.

(b) Include one of the following option clauses as applicable in solicitations 

and contracts that include options that may be exercised after award. Do 

not include when the options may only be exercised at the time of award 

(i.e., the solicitation includes Provision 2-85C, Evaluation of Options 

Exercised at Time of Contract Award). For guidance on exercising options 

after contract award, see: Guide, Vol. 14, § 745.30 (Exercise of Options).

§ 220.40.60(b) Option Clauses

Clause is included in...

(1) Clause 2-90A, Option 

for Increased Quantity 

solicitations and contracts for products that express the option 

quantity as a percentage of the basic quantity or as an 

additional quantity of a specific line item.

(2) Clause 2-90B, Option 

for Increased Quantity 

– Separately Priced 

Line Item

solicitations and contracts for products when the option quantity 

is identified as a separately priced line item having the same 

nomenclature as a corresponding base line item.

(3) Clause 2-90C, Option 

to Extend Services

solicitations and contracts for services when it is intended to 

have the option to extend the period of performance up to six 
Guide to Judiciary Policy, Vol. 14, Ch. 2 Page 27

§ 220.40.60(b) Option Clauses

Clause is included in...

months beyond the resulting award’s period of performance. 

The CO will appropriately fill in the clause’s blank spaces.

(4) Clause 2-90D, Option 

to Extend the Term of 

the Contract

solicitations and contracts for products or services when it is 

necessary to include any or all of the following:

• a requirement that the judiciary must give the contractor a 

preliminary written notice of its intent to extend the contract; 

• a statement that an extension of the contract includes an 

extension of the option;

• a specified limitation on the total duration of the contract.

Note: The CO will appropriately fill in the clause’s blank 

spaces.

§ 220.45 Equipment Lease or Purchase

§ 220.45.10 In General

This guidance pertains to the decision to obtain equipment by lease or purchase. It 

applies to both the initial procurement of equipment and the renewal or extension of 

existing equipment leases. The judiciary should consider whether to lease or purchase 

equipment or products based on a case-by-case evaluation of comparative costs and 

other factors.

§ 220.45.20 Timing of Decision

(a) Upon receipt of the requirement from the requesting office, the CO will 

conduct appropriate market research. A decision to lease or purchase 

may be possible based solely upon the market research results. In that 

case, a written decision must be documented in the procurement file and 

the solicitation issued on the basis of that decision.

(b) If the market research is insufficient to determine whether a lease or a 

purchase is in the best interest of the judiciary, the solicitation or request 

for quotes should request offerors to offer both purchase and lease pricing 

options. In this case, the decision whether to lease or to purchase would 

then be made at the time of award.

(c) Whether before the issuance of the solicitation, or at the time of award, the 

CO and requesting office must deliberate the lease-versus-buy decision to 

determine which is more advantageous to the judiciary, and the CO’s 

written decision must be documented in the procurement file.
Guide to Judiciary Policy, Vol. 14, Ch. 2 Page 28

§ 220.45.30 Factors to Consider

The CO should consider the following:

(a) estimated length of time the equipment is to be used and the estimated 

usage within that period;

(b) financial and operating advantages of alternative types and makes of 

equipment;

(c) cumulative rental payments for the estimated period of use, including 

option periods. Use an inflation factor for the subsequent year(s). A 

budget analyst will assist in obtaining this factor;

(d) net purchase price;

(e) any differences in transportation and installation costs;

(f) any maintenance and other service costs;

(g) potential obsolescence of the equipment because of imminent 

technological improvements;

(h) availability of purchase options;

(i) trade-in or salvage value;

(j) availability of a servicing capability, especially for highly complex 

equipment (i.e., if it is purchased, whether the equipment will be serviced 

by the judiciary or other sources). If it will be serviced by the lease 

contractor, then these costs must be considered;

(k) cost to terminate the lease if the judiciary no longer needs the equipment; 

and

(l) cost for any damage caused to the equipment.

§ 220.45.40 Purchase Method

(a) Generally, the purchase method is appropriate if the equipment will be 

used beyond the point when cumulative leasing costs exceed the 

purchase costs. The estimate for cumulative leasing costs will include any 

proposed option periods, calculated with their inflation factor and any other 

costs associated with leasing (i.e., cost for termination, maintenance, 

installation).
Guide to Judiciary Policy, Vol. 14, Ch. 2 Page 29

(b) COs should not rule out the purchase method of equipment in favor of 

leasing merely because of the possibility that future technological 

advances might make the selected equipment less desirable.

§ 220.45.50 Lease Method

(a) The lease method may be appropriate after considering the factors in 

§ 220.45.30 (Factors to Consider) and determining it is in the judiciary’s 

advantage under the circumstances. The lease method may also serve 

as an interim measure when the circumstances:

(1) require immediate use of equipment to meet program or system 

goals; and

(2) do not currently support purchase.

(b) If a lease is justified:

(1) a lease with option to purchase is preferable, unless the equipment 

is needed only temporarily (see: § 220.45.50(d), below);

(2) a lease may be structured as a base period with options. Option 

period(s) should be negotiated at the time of initial award for the 

subsequent year(s) to be exercised at the discretion of the judiciary;

(3) advance payment is not authorized for any lease period, except 

under § 220.55 (Contract Financing). Payment must be made in 

arrears consistent with a mutually agreed upon time period (e.g., 

monthly, quarterly, annually);

(4) the cost to terminate the lease must be negotiated and included in 

the contract.

(c) Generally, a lease with numerous option periods should be avoided, but 

may be appropriate if an option to purchase or other favorable terms are 

included.

(d) If a lease with option to purchase is used, the contract will state the 

purchase price or provide a formula that shows how the purchase price 

will be established at the time of purchase.

§ 220.45.60 Commercial Agreement

If the lease includes a commercial agreement, then the procedures in Guide, Vol. 14, 

§ 540 (Commercial Agreements) must be followed.
Guide to Judiciary Policy, Vol. 14, Ch. 2 Page 30

§ 220.45.70 Clauses

Insert Clause 2-110, Option to Purchase Equipment in solicitations and contracts 

involving a lease with option to purchase.

§ 220.50 Funding Contract Awards

§ 220.50.10 Policy

All judiciary purchases must be supported by a written contract document that has been 

signed by a certified judiciary contracting officer, and funds sufficient to make required 

contractual payments must be obligated in the judiciary accounting system before the 

contractor begins contract performance. No officer or employee of the judiciary may 

create or authorize an obligation in excess of the funds available, or in advance of 

appropriations (Antideficiency Act, 31 U.S.C. § 1341), unless otherwise authorized by 

law. Before executing any contract, the contracting officer will:

(a) Ensure that adequate funds are available; or

(b) Expressly condition the contract on availability of funds, consistent with 

§ 220.50.90 (Clauses for Contracting in Advance of Appropriation of 

Funds).

(c) See also: Guide, Vol. 13, § 280.60 (Recording and Monitoring 

Commitments and Obligations).

§ 220.50.20 Contract Funding Requirements

The following funding guidance applies regardless of whether or not the funds for a 

contract are local funds or centrally managed funds. Questions regarding contract 

funding should be referred to the PE, who will consult with OGC as necessary.

(a) Firm-fixed-price contracts are generally required to be fully funded, which 

means obligating funds to cover the entire contract price, even if awarded 

during a period of a continuing resolution. This includes firm-fixed-price 

contracts for severable services that cross fiscal years (see:

§ 220.50.60(b) (Contracts Crossing Fiscal Years (Annual 

Appropriations))). For example, a firm-fixed-price contract for severable 

services awarded for the period 04/01/2019 through 03/31/2020 would 

normally be fully funded from FY19 funds for performance through 

03/31/2019.

(1) A firm-fixed-price contract may be incrementally funded only if the 

contract (excluding any options) or any exercised option is:

(A) For severable services;
Guide to Judiciary Policy, Vol. 14, Ch. 2 Page 31

(B) For a period of one year or less;

(C) Incrementally funded using funds available (unexpired) as of 

the date the funds are obligated; and

(D) Approved by PMD for a one-time delegation of procurement 

authority.

(2) An incrementally funded fixed-price contract should be fully funded 

as soon as funds are available.

(b) Contracts for non-severable services must be fully funded at the time of 

award, which means obligating funds based upon the established cost 

ceiling in a cost-reimbursement or labor-hour contract. The proper fiscal 

year’s funds for an increase to the cost ceiling for these types of contracts 

depends on the reason for the increase.

(c) Contracts for severable services awarded on a cost-reimbursement, laborhour, or time-and-materials basis may be funded up to twelve (12) months 

at a time, and the funding may cross the fiscal year (see: § 220.50.60(b) 

(Contracts Crossing Fiscal Years)). Alternatively, the award may be 

funded to cover only what is estimated to be required for performance 

from award through September 30th from the current fiscal year’s funds. 

The contract would then be modified to obligate funds of the next fiscal 

year to cover the remainder of the twelve month performance period, 

assuming there is still a bona fide need for the services. Funding for the 

award or for the exercise of any option period may not exceed the amount 

estimated for a twelve month period of performance.

(d) Multi-year contracts may be fully funded or funded annually. For 

information on minimum funding for multi-year contracts, see: Guide, 

Vol. 14, § 410.75.50(a)(1) (Funding and Payment).

(e) The amount obligated when funding a blanket delivery order (BDO) or an 

unpriced purchase order must be based upon the contracting officer’s 

reasonable best estimate of what services/products will actually be 

ordered during the period covered by the BDO or unpriced purchase 

order. The file must contain documentation of the basis of the estimate

(e.g., average previous annual expenditures over the last 3-5 years for the 

same or similar services/products). For additional guidance on using 

these two purchase methods, see: Guide, Vol. 14, § 325.50.40 (Ordering 

under BPAs) and § 325.45.25 (Use of Unpriced Purchase Orders). BDOs 

may also be used under indefinite quantity contracts. See: Guide, 

Vol. 14, § 410.30.60 (Delivery Orders or Task Orders).

Note: The period covered by a BDO may not cross fiscal years.
Guide to Judiciary Policy, Vol. 14, Ch. 2 Page 32

§ 220.50.30 Fiscal Year Contracts

The contracting officer may initiate a contract action properly chargeable to funds of the 

new fiscal year before these funds are available, provided that the solicitation and 

resulting contract include Clause 7-115, Availability of Funds.

§ 220.50.40 Indefinite-Quantity Contracts

A one-year indefinite-quantity contract that is funded by annual appropriations may 

extend beyond the fiscal year in which it begins; provided, that any specified minimum 

quantities are certain to be ordered in the initial fiscal year.

§ 220.50.50 Liability Contingent Upon Obligation of Funds

The judiciary has no liability to pay for supplies or services under a contract conditioned 

upon the availability of funds until the CO has given the contractor notice that funds are 

available, which must be confirmed by a contract modification obligating the funds.

§ 220.50.60 Contracts Crossing Fiscal Years (Annual Appropriations)

(a) A contract that is funded by annual appropriations may not cross fiscal 

years, except consistent with statutory authorization (e.g., 28 U.S.C. 

§ 604(g)(4)(A) and (B)), or when the contract calls for non-severable 

services that cannot feasibly be subdivided for separate performance in 

each fiscal year.

(b) The Director is statutorily authorized to enter into a contract, exercise an 

option, or place an order under a contract for severable services (e.g., 

equipment maintenance services, court reporting services, interpreter 

services, etc.) for a period that begins in one fiscal year and ends in the 

next fiscal year using annual appropriations if the period of the contract 

awarded, option exercised, or order placed does not exceed one year 

(28 U.S.C. § 604(g)(4)(A)). Current year funds, available as of the date 

such an award is made, may be obligated for the total amount of the 

contract, option, or order entered into under this authority.

§ 220.50.70 Limitation of Cost or Funds

(a) When using cost-reimbursement contracts containing Clause 4-85, 

Limitation of Cost or Clause 4-90, Limitation of Funds, upon learning that 

the contractor is approaching the estimated cost of the contract or the limit 

of the funds obligated, the CO will promptly obtain programming and 

funding information pertinent to the contract’s continuation and notify the 

contractor in writing of one of the following:

(1) Additional funds have been obligated in a specified amount;
Guide to Judiciary Policy, Vol. 14, Ch. 2 Page 33

(2) The contract is not to be further funded and the contractor should 

submit a proposal for an adjustment of fee, if any, based on the 

percentage of work completed in relation to the total work called for 

under the contract;

(3) The contract is to be terminated; or

(4) The judiciary is considering whether to obligate additional funds. In 

this event, the CO’s notice must also include the statements that 

the contractor is entitled by the contract terms to stop work when 

the obligated funding is reached and that any work beyond the 

obligated funding will be at the contractor’s risk.

(b) Upon learning that a partially funded contract containing either of the 

clauses referenced in § 220.50.70(a) above will receive no further funds, 

the contracting officer must promptly give the contractor written notice of 

the decision not to provide funds.

§ 220.50.80 Funding for Changes

(a) Under a firm-fixed-price contract, the contracting officer must ensure that 

funds are available in the appropriate amount before authorizing changes.

(b) Under a cost-reimbursement or labor-hour contract, the contracting officer 

may issue a change order, a direction to replace or repair defective items 

or work, or a termination notice without immediately increasing the funds 

available. Since a contractor is not obligated to incur costs in excess of 

the obligated funds in the contract, the contracting officer must ensure 

availability of funds for directed actions.

(1) If, at the time the change is ordered, the contract has a projected 

underrun (i.e., projected costs for the remainder of the performance 

are less than the currently obligated funding), funds for the change 

may be available without any change to the existing funding.

(2) Otherwise, the contracting officer must ensure funds are available 

and obligated to cover the increased cost for the ordered changes. 

The contracting officer may direct that any increase in the funds 

obligated on a contract be used for the sole purpose of funding

termination or other specified expenses.

See also: Guide, Vol. 14, § 745.40.30 (Contractor’s Obligation to 

Perform).
Guide to Judiciary Policy, Vol. 14, Ch. 2 Page 34

§ 220.50.90 Clauses for Contracts Conditioned Upon Availability of Funds

(a) Insert Clause 7-115, Availability of Funds in solicitations and contracts if 

the contract will be chargeable to funds of the new fiscal year and the 

contract action will be awarded before the funds are available.

(b) Insert Clause 7-120, Availability of Funds for the Next Fiscal Year in laborhour, time-and-materials, or cost-type solicitations and contracts if:

(1) the contract is funded using annual appropriations;

(2) the performance period will cross fiscal years; and

(3) there are insufficient funds in the current year for the initial period of 

performance.

§ 220.55 Contract Financing

§ 220.55.10 Definition

“Contract financing payment” means an authorized judiciary disbursement of monies to 

a contractor before the judiciary’s acceptance of products or services.

(a) Contract financing payments include:

• commercial advance payments,

• performance based payments,

• progress payments based on cost,

• progress payments based on a percentage or stage of completion, 

and

• interim payments under a cost reimbursement contract.

(b) Contract financing payments do not include:

• routine invoice payments for products and services that have been 

received and accepted,

• payments for partial deliveries, or

• lease and rental payments paid in arrears.

§ 220.55.20 Authority

The Director has authority under 28 U.S.C. § 604(g)(4)(C) to enter into contracts 

containing contract financing terms. Of the various types of contract financing listed 

above in § 220.55.10(a) (Definition), only commercial advance payment is currently 

authorized for use by judiciary organization contracting officers. This section prescribes 
Guide to Judiciary Policy, Vol. 14, Ch. 2 Page 35

procedures applicable to the inclusion of commercial advance payment terms in 

purchase orders and contracts.

Note: Payment in advance is permitted for publications, whether printed or electronic, 

under 31 U.S.C. § 3324(d)(2), which is a separate authority from this delegation, and is 

therefore not subject to any of the limitations of the commercial advance payment 

delegation described below.

§ 220.55.30 Delegation

(a) Subject to the following limitations, the Director has delegated to chief 

judges and other judiciary officials identified at § 120.20.10(b) (Delegation 

to Chief Judges and Other Judiciary Officials), the authority to use 

commercial advance payment, subject to the limitations of the bona fide 

needs rule, in the purchase of services that meet all of the following 

conditions:

(1) The purchase is for:

(A) telephone service purchased under a contract;

(B) commercial training for an individual employee or group of 

employees;

(C) maintenance support services for photocopy equipment, IT 

equipment, and/or software;

(Note: Prepaying “software maintenance as a 

product” at the time of contract award does not 

constitute an advance payment under 31 U.S.C. 

§ 3324. In contrast, “software maintenance as a 

service” is billed in arrears under 31 U.S.C. § 3324

(see: GAO B-256692) or the commercial advance 

payment authority in this section can be considered

for use, but subject to the other limitations noted 

further below (e.g., the 15% maximum rule in 

paragraph (a)(2)).)

(D) parking space (garage or lot) services, regardless of the 

source (e.g., private company, state/local government), 

where the advance payment is made the first of the month to 

cover only that month’s service; or

(Note: Advance payment for parking on any other interim

(e.g., quarterly, semi-annually) is not delegated. For further 
Guide to Judiciary Policy, Vol. 14, Ch. 2 Page 36

guidance on parking services, see: Guide, Vol. 16, § 630 

(Parking).)

(E) emergency and transitional housing, child care, and job 

training related to Second Chance Act. See: Guide, Vol. 8L,

Ch. 2 (Second Chance Act Guidance).

(2) Under 28 U.S.C. § 604(g)(4)(C) and 41 U.S.C. § 4505(c), before

any performance of work under the contract, the aggregate of 

commercial advance payments may not exceed 15% of the 

contract price.

(3) The period of performance to be paid in advance does not exceed 

a 12-month period (not applicable to the purchase of extended 

warranties).

(4) No advance payment is made before the end of the first month of 

the period of performance (not applicable to the purchase of 

commercial training or extended warranties).

(b) PMD may approve the inclusion of commercial advance payment terms 

for transactions outside these limits as one-time delegations of authority 

for specific purchases, except payments exceeding the statutory 15% rule

referenced above in subparagraph (a)(2).

(c) The judiciary may make advance payments to state and local 

governments where these entities are furnishing non-commercial services 

under contract that are reasonably available only from the state or local 

government organization (e.g., state court fees).

(1) Contracts with state or local governments for advance payments for

such services are not subject to the conditions of this delegation, 

and do not require obtaining a one-time delegation of authority.

(2) However, advance payment for purchases of services from state or 

local governments are subject to the limitations of § 220.55.30(a)

(Delegation).

(d) The judiciary may make advance payment to other federal agencies 

without any special approvals or authorizations. See: Guide, Vol. 14, 

§ 550 (Interagency Agreements, MOAs, and MOUs).

§ 220.55.40 Policy

In approving the use of commercial advance payments, the CO must keep in mind that 

Congress intended this authority to be used sparingly since it poses certain risks to the 
Guide to Judiciary Policy, Vol. 14, Ch. 2 Page 37

judiciary should the contractor declare bankruptcy or fail to perform, for example. The 

security obtained, the amounts and timing of commercial advance payments, and the 

anticipated savings to the judiciary must be analyzed as a whole to determine whether 

making advance payment will be in the best interest of the judiciary. For information on 

required determinations, see: § 220.55.60(e) (Determinations).

§ 220.55.50 Limitations

(a) Any proposed use of a commercial advance payment that does not meet 

all of the conditions in § 220.55.30 (Delegation) above, must be forwarded 

to PMD, for review before the award. If the request is approved, PMD will 

issue a one-time delegation of authority to enter into the contract. For 

information on required determinations, see: § 220.55.60(e) 

(Determinations).

(b) Performance is deemed to commence on the first day of the contract 

period of performance. While actual performance of services under 

maintenance support service agreements for photocopy equipment, IT 

equipment and/or software might not occur on the first day of the 

performance period, for advance payment purposes, performance is 

deemed to commence on the first day of the contract period of 

performance. Similarly, when the award is made in advance of the first 

day of the contract period of performance (e.g., contracts awarded in 

August or September, with performance starting in October), performance 

commences on the first day of the contract period of performance, not as 

of the date of award, except with regard to commercial training, where 

performance is deemed to commence on the date of the award.

(c) The contracting officer must obtain adequate security before authorizing a 

commercial advance payment. See: § 220.55.60(c) (Evaluating 

Adequacy of Security for Advance Pay).

§ 220.55.60 Procedures

(a) Solicitations

If an offeror proposes commercial advance payment terms in 

response to a competitive written solicitation, and the CO is willing 

to consider the request, the solicitation must be amended to add 

Clause 2-115, Terms for Commercial Advance Payment of 

Purchases to the solicitation to notify all offerors of the availability of 

advance pay, if the clause was not included in the original 

solicitation.
Guide to Judiciary Policy, Vol. 14, Ch. 2 Page 38

(b) Evaluating Offers with Different Payment Terms

An offer stating that the commercial advance payment terms will 

not be used by the offeror does not alter the evaluation of the offer, 

nor does it render the offer nonresponsive or otherwise 

unacceptable. In the event of award to an offeror who declined the 

proposed advance payment, the advance payment clause(s) may 

not be included in the resulting contract. Acceptance or refusal of 

the commercial advance payment term may not be a basis for 

adjusting offerors’ proposed prices, because the effect is reflected 

in each offeror’s proposed prices.

(c) Evaluating Adequacy of Security for Advance Pay

(1) The CO will review the apparent successful offeror’s financial 

condition to determine whether it is acceptable as adequate 

security for the risk incurred by making advance payment. 

Assessment of the contractor’s financial condition will consider both 

net worth and liquidity. Other methods of verifying the contractor’s 

financial condition to make this determination include the following:

(A) Checking Dun and Bradstreet, if this service is available; 

and/or

(B) Requesting audited financial statements from the offeror

(2) If the CO finds the offeror’s financial condition to be adequate 

security, Clause 2-125, Security for Advance Payment must be 

included in the awarded contract as well as Clause 2-115, Terms 

for Commercial Advance Payment of Purchases.

(3) If the CO does not consider the offeror’s financial condition to be 

adequate security, the offeror must provide an irrevocable letter of 

credit from a federally insured financial institution as specified in 

Clause 2-115, Terms for Commercial Advance Payment of 

Purchases. The letter of credit must be at least equal to the 

amount of the advance payment requested. If the offeror refuses to 

provide the required letter of credit, the CO may request pricing 

based upon payment in arrears. If the revised proposal still is the 

apparent successful offer consistent with the solicitation’s 

evaluation procedures, the CO may make award upon the basis of 

payment in arrears. Any award made based upon payment in 

arrears should not include any advance payment clauses.
Guide to Judiciary Policy, Vol. 14, Ch. 2 Page 39

(d) Contract Administration

(1) The CO is responsible for receiving, approving, and transmitting all 

commercial advance payment requests to the payment office. For 

open market awards involving advance payment, the CO is also 

responsible for determining that the security provided by the 

contractor continues to be adequate.

(2) If the contractor’s financial condition was accepted as adequate 

security, the CO will monitor the contractor’s financial condition at 

least quarterly.

(3) If information obtained during the CO’s periodic monitoring of the 

contractor’s financial condition causes the CO to determine that the 

contractor’s financial condition has become insufficient, the CO 

must request additional security under Clause 2-115, Terms for 

Commercial Advance Payment of Purchases. In this situation, in 

addition to an irrevocable letter of credit from a federally insured 

financial institution, the following alternative forms of security may 

be accepted:

(A) A lien paramount to all other liens without filing, notice, or 

other action by the judiciary. The contractor must identify 

what the lien is upon (e.g., the work in process, the 

contractor’s plant, or the contractor’s inventory), and the CO 

must issue a modification to the contract to reflect the lien 

and the asset(s) supporting it. The CO also must ensure the 

contract gives the judiciary a right to verify the existence and 

value of the asset. In addition, the contractor must certify 

that the assets subject to the lien are free from any earlier 

encumbrances that may result from such things as capital 

equipment loans, installment purchases, working capital 

loans, lines of credit and revolving credit arrangements.

(B) A bond guaranteeing repayment of the unliquidated advance 

payment from a corporate surety listed in Department of 

Treasury Circular 570 (Companies Holding Certificates of 

Authority as Acceptable Sureties on Federal Bonds and as 

Acceptable Reinsuring Companies).

(C) A guarantee of repayment from a person or corporation of 

demonstrated liquid net worth, connected by significant 

ownership to the contractor; or

(D) Title to identified contractor assets of adequate worth (e.g., 

U.S. Government securities, certificates of deposit, stocks 
Guide to Judiciary Policy, Vol. 14, Ch. 2 Page 40

and bonds actively traded on U.S. national stock exchange 

or real property).

(4) The additional security obtained must be at least equal to the 

maximum unliquidated amount of the advance payment already 

made to the contractor. The value of the security may be adjusted 

periodically during contract performance, as long as it is always 

equal to or greater than the amount of unliquidated advance 

payment.

(e) Determinations

The CO must include the following determinations in the contract 

file:

(1) A determination that it is appropriate or customary in the 

commercial marketplace to make commercial advance payments 

for the specific service being purchased. Note: For those types of 

purchases listed at § 220.55.30(a) (Delegation), this determination 

has been made and the CO will simply state that the purchase 

meets the conditions of § 220.55.30(a) (Delegation).

(2) A determination that authorizing commercial advance payment is in 

the best interest of the judiciary, which will include an analysis of 

the demonstrable savings expected to be realized through 

commercial advance payment. The best interest of the judiciary 

determination will address the following:

(A) A brief summary of the solicitation or contract requirements 

(e.g., description of services, period of performance, etc.);

(B) The contractor’s need for commercial advance payments 

and the potential benefits to the judiciary from providing 

commercial advance payments;

(C) Actions that the contracting officer will take to minimize the 

judiciary’s risk of loss from providing commercial advance 

payment;

(D) The proposed commercial advance payment contract terms; 

and

(E) If the CO accepts the contractor’s financial condition to be 

adequate security, the determination will also include the 

CO’s analysis supporting that decision.
Guide to Judiciary Policy, Vol. 14, Ch. 2 Page 41

§ 220.55.70 Commercial Advance Payment Clauses

The CO will include the following clause(s) in solicitations and contracts offering 

commercial advance payment, as indicated below:

§ 220.55.70 Commercial Advance Payment Clauses

Clause is included in...

(a) Clause 2-115, Terms for 

Commercial Advance 

Payment of Purchases

all solicitations and contracts for products or services that

authorize commercial advance payment.

(b) Clause 2-115, Alternate I solicitations and contracts for photocopy equipment 

maintenance that authorize commercial advance payment.

(c) Clause 2-120, Submission of 

Invoice

solicitations and contracts that authorize commercial 

advance payment, except those for commercial training.

(d) Clause 2-125, Security for 

Advance Payment

all contracts authorizing commercial advance payment 

when the contractor’s financial condition is accepted as 

adequate security.

§ 220.60 Energy and Environmental Considerations

§ 220.60.10 Definitions

Energy-Efficient 

Product

A product that:

• Meets Department of Energy and Environmental Protection Agency 

criteria for use of the Energy Star trademark label; or

• Is in the upper 25% of efficiency for all similar products as designated 

by the Department of Energy’s Federal Energy Management 

Program (FEMP).

Energy-Efficient 

Standby Power 

Devices

Products that use:

• External standby power devices, or that contain an internal standby 

power function; and

• No more than one watt of electricity in their standby power 

consuming mode or meet recommended low standby levels as 

designated by the Department of Energy FEMP.

Environmentally 

Preferable

Products or services that have a lesser or reduced effect on human 

health and the environment when compared with competing products or 

services that serve the same purpose. This comparison may consider 

raw materials acquisition, production, manufacturing, packaging, 

distribution, reuse, operation, maintenance, or disposal of the product or 

service. This is applicable to FEMP-Designated products.
Guide to Judiciary Policy, Vol. 14, Ch. 2 Page 42

§ 220.60.10 Definitions

Personal 

Computer 

Product

A notebook computer, a desktop computer, or a computer monitor, and 

any peripheral equipment that is integral to the operation of such items. 

For example, the desktop computer together with the keyboard, the 

mouse, and the power cord would be a personal computer product. 

Printers, copiers, and fax machines are not included in peripheral 

equipment, as used in this definition.

§ 220.60.20 Statutory Requirement

Under 42 U.S.C. § 8259B (Federal Procurement of Energy Efficient Products), judiciary 

purchases of energy-consuming products, including services involving the provision of 

energy-consuming products (e.g., courtroom technology projects) must specify products 

that comply with the requirements of this section. This requirement applies to all 

purchases of such products regardless of dollar amount, including purchases made 

using the judiciary purchase card.

§ 220.60.30 Statutory Exemption

The judiciary is not required to purchase an ENERGY STAR® or FEMP-designated 

product, if the chief judge or other judiciary official identified at § 120.20.10(b) 

(Delegation to Chief Judges and Other Judiciary Officials) (or Procurement Liaison 

Officer, if delegated), or PE determines:

(a) there is no ENERGY STAR® or FEMP-designated product reasonably 

available that meets the judiciary’s requirements; or

(b) no ENERGY STAR® or FEMP-designated product is cost-effective over 

the life of the product taking energy cost savings into account.

See also: Guide, Vol. 14, § 130.20.60 (Energy Efficiency).

§ 220.60.40 Procedure

When acquiring energy-consuming products listed in the ENERGY STAR® Program or 

FEMP:

(a) Judiciary COs must purchase ENERGY STAR® or FEMP-designated 

products; and

(b) For products that consume power in a standby mode and are listed on 

FEMP’s Low Standby Power Devices product listing, judiciary COs must:

(1) Purchase items that meet FEMP’s standby power wattage 

recommendation or document the reason for not purchasing such 

items; or
Guide to Judiciary Policy, Vol. 14, Ch. 2 Page 43

(2) If FEMP has listed a product without a corresponding wattage 

recommendation, purchase items that use no more than one watt in 

their standby power consuming mode. When it is impracticable to 

meet the one-watt requirement, judiciary COs must purchase items 

with the lowest standby wattage practicable.

§ 220.60.50 Purchasing Personal Computer Products

(a) The Institute of Electrical and Electronics Engineers (IEEE) 1680 standard 

for personal computer products is a voluntary consensus standard that

meets EPA-issued guidance on environmentally preferable products and 

services. The IEEE 1680 standard for personal computer products 

provides both required and optional criteria. An ENERGY STAR® rating is 

one of the minimum required criteria.

(b) The Electronic Product Environmental Assessment Tool (EPEAT) is a tool 

available to the judiciary to assist in the evaluation of personal computer 

products based upon environmental attributes. EPEAT “Bronze” 

registered products must meet all of the IEEE 1680 required criteria. 

EPEAT “Silver” registered products meet all IEEE 1680 required criteria 

and 50% of the optional criteria. EPEAT “Gold” registered products meet 

all IEEE 1680 required criteria and 75% of the optional criteria. For 

additional information on EPEAT, see: epeat.net. EPEAT registration is 

separate from ENERGY STAR® and FEMP.

(c) The purchase of EPEAT-registered products is encouraged when such 

products are reasonably available and are cost-effective over the life of 

the product. EPEAT Silver or Gold registration may be used as an 

evaluation factor in solicitations for personal computer products.

§ 220.60.60 Additional Resources

(a) ENERGY STAR®

(b) Federal Energy Management Program

§ 220.60.70 Clauses

The CO will include the following clause(s) in solicitations and contracts as indicated 

below:
Guide to Judiciary Policy, Vol. 14, Ch. 2 Page 44

§ 220.60.70 Clauses

Clause is included in ...

(a) Clause 2-130, Energy 

Efficiency in EnergyConsuming Products

solicitations and contracts when energy consuming products 

listed in the ENERGY STAR® program or FEMP will be

• purchased by the judiciary;

• purchased by the contractor for use in contractorperformed services within a judiciary facility;

• furnished by the contractor for use by the judiciary; or 

• specified in the design of a project or incorporated during 

implementation of a project (e.g., courtroom technology)

(b) Clause 2-135, Acquisition 

of EPEAT®-Registered 

Personal Computer 

Products

solicitations and contracts for personal computer products 

when soliciting for EPEAT-registered products.

Alternate 1 of the clause may be used when there are a 

sufficient number of EPEAT Silver registered products 

available to meet agency needs for meaningful competition

§ 230 Specifications, Statements of Work, and Product 

Descriptions

§ 230.10 Overview

§ 230.10.10 General Requirements

All procurement actions require a clear and concise description of the products or 

services to be procured that is devoid of generalizations, ambiguities, and omissions. 

For requirements processed under small purchase procedures, the description may be 

less detailed than for complex requirements processed under formal contracting 

procedures. However, the CO must ensure that products descriptions, specifications, 

statements of work (SOW), etc. are prepared in a way that promote competition. 

Unnecessarily restrictive SOWs or specifications may negatively impact competition. 

Restrictive product descriptions may require only one, or a limited number of offerors or 

product choices, when other highly similar products could also be considered if the

requirement is stated in less restrictive language.

§ 230.10.20 Avoidance of Ambiguity

Product descriptions, specifications and SOWs that are susceptible to more than one 

reasonable interpretation are ambiguous and objectionable. They impede full and open 

competition by failing to ensure that offerors are competing on a “common” or “equal” 

basis. The result may lead to contract administration problems or inadequate contractor 

performance.
Guide to Judiciary Policy, Vol. 14, Ch. 2 Page 45

§ 230.20 Specifications

§ 230.20.10 In General

Specifications are normally used when purchasing a product rather than a service. 

Specifications must fully and completely state the judiciary’s needs considering the 

nature of the products being purchased. Specifications may be stated in terms of:

(a) function, so that a variety of products may be considered as qualified;

(b) performance, including the range of acceptable characteristics or the 

minimum acceptable standards; or

(c) design requirements, providing exact dimensions, materials, or 

characteristics.

§ 230.30 Statements of Work

(a) Statements of Work (SOW) are most often used when purchasing 

services rather than end-products. However, a SOW may include 

specifications or product descriptions. The SOW must describe the work 

clearly and at a level of detail sufficient to ensure the judiciary obtains the 

services it requires. After award, the SOW is the standard for measuring 

performance and is used by both the judiciary and the contractor to 

determine rights and obligations under the contract.

(b) Two other methods of defining work in solicitations for services are the 

Performance Work Statement (PWS) and the Statement of Objectives 

(SOO). Both of these are structured around the results to be achieved 

rather than the manner in which the work is to be performed. These two 

methods are closely linked in that if the judiciary solicits using a SOO, the 

competing offerors propose the PWS for the contract, instead of the PWS 

being written by the judiciary.

(c) The PWS describes the required results in clear, specific and objective 

terms with measurable outcomes.

(d) The SOO states the overall performance objectives and is used when the 

judiciary intends to provide the maximum flexibility to each offeror to 

propose an innovative approach. The SOO must include the following, at 

a minimum:

• Purpose,

• Scope or mission statement,

• Period and place of performance,

• Background,
Guide to Judiciary Policy, Vol. 14, Ch. 2 Page 46

• Performance objectives (i.e., required results), and

• Operating constraints.

(e) Offerors use the SOO to develop a proposed PWS, which must then be 

evaluated to determine whether the proposed standards (i.e., measurable 

outcomes) meet judiciary needs. The final contract incorporates the 

successful offeror’s proposed PWS and not the SOO.

§ 230.40 Product Descriptions

§ 230.40.10 In General

Whenever standard or modified commercial products will meet judiciary requirements, 

product descriptions must be used instead of specifications. Product descriptions may 

be either the common generic identification of the item, which is the preferred 

description, or a brand name description, as follows:

(a) The common generic identification description must include the salient 

characteristics or function of the product. For example, for a printer, it will 

be described as having the capability to print a minimum of x pages per 

minute, in black ink or color, etc.

(b) The brand name description may include known acceptable brand-name 

products, identified by model or catalog number, and the commercial 

catalogs in which they appear. If a product with equal characteristics but a 

different brand name will also meet the requirements of the judiciary, then 

the brand name is followed by the phrase “or equal.” The CO must then 

consider other “or equal” products. However, if the brand name is 

specified without the phrase “or equal,” or is defined so as to require a 

particular “brand name,” product, or a feature of a product peculiar to one 

manufacturer, in a way that precludes consideration of a product 

manufactured by another company, then this is restricting competition to 

only those who can provide the specified brand name item and a 

justification for other than full and open competition is required. See also: 

Guide, Vol. 14, § 335.50 (Use of Brand Name Descriptions).

§ 230.40.20 Equivalent Product Considerations

If offers for equivalent (“or equal”) products will be considered:

(a) the product description must include a description of the item’s essential 

characteristics (e.g., material, size, capacity), the equipment with which 

the items will be used, and any restrictive operating environmental 

conditions; and
Guide to Judiciary Policy, Vol. 14, Ch. 2 Page 47

(b) space must be provided in the solicitation for offerors to identify the 

manufacturer’s brand names and models or catalog numbers of the 

“equal” product proposed.

§ 230.40.30 Provision

Include Provision 2-100, Brand Name or Equal in solicitations when the product 

description includes a specific brand name and an “equal” product is also acceptable.