11.103 Market acceptance
Source: FAR 11.103 on acquisition.gov
Market acceptance criteria can only be used when justified by agency needs, must be well-documented, and cannot be the sole basis for evaluating an item’s acceptability.
Overview
FAR 11.103 outlines when and how agencies may require offerors to demonstrate that their products have achieved commercial market acceptance or have been satisfactorily supplied under similar government contracts. This section ensures that agencies only use market acceptance criteria when it aligns with their minimum needs, such as requiring proven reliability or performance. The regulation prohibits using market acceptance as the sole evaluation criterion and mandates that criteria be based on market research, relate to the item’s performance, and consider the entire commercial market, including small businesses. Contracting officers must document the justification and criteria for using market acceptance in the contract file.
Key Rules
- Market Acceptance Requirement
- Agencies may require offerors to show commercial market acceptance or satisfactory supply history under similar contracts, and that items meet all solicitation criteria.
- Appropriate Use
- Market acceptance is appropriate when proven reliability or performance is needed, but not when new or evolving items could meet requirements.
- Criteria Development
- Criteria must reflect agency minimum needs, focus on item performance, be supported by market research, consider recent government contracts, and include the full commercial market.
- Documentation
- Contracting officers must document the justification and criteria for using market acceptance.
- Evaluation Limitation
- Market acceptance cannot be the sole criterion for determining item acceptability.
Responsibilities
- Contracting Officers: Develop and document appropriate market acceptance criteria, ensure criteria are justified and supported by market research, and include all relevant market segments.
- Contractors: Demonstrate commercial market acceptance or satisfactory supply history when required, and ensure offered items meet all solicitation criteria.
- Agencies: Oversee proper application of market acceptance requirements and ensure compliance with documentation and market research obligations.
Practical Implications
- This section ensures agencies do not unnecessarily restrict competition by over-relying on market acceptance. It protects opportunities for new or innovative products while allowing agencies to require proven solutions when justified. Contractors must be prepared to provide evidence of market acceptance or past performance, and contracting officers must carefully justify and document any such requirements.
(a) http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title41-section3307(e)&num=0&edition=prelim" target="_blank">41 U.S.C. 3307(e) provides that, in accordance with agency procedures, the head of an agency may, under appropriate circumstances, require offerors to demonstrate that the items offered-
(1) Have either-
(i) Achieved commercial market acceptance; or
(ii) Been satisfactorily supplied to an agency under current or recent contracts for the same or similar requirements; and
(2) Otherwise meet the item description, specifications, or other criteria prescribed in the public notice and solicitation.
(b) Appropriate circumstances may, for example, include situations where the agency’s minimum need is for an item that has a demonstrated reliability, performance or product support record in a specified environment. Use of market acceptance is inappropriate when new or evolving items may meet the agency’s needs.
(c) In developing criteria for demonstrating that an item has achieved commercial market acceptance, the contracting officer shall ensure the criteria in the solicitation-
(1) Reflect the minimum need of the agency and are reasonably related to the demonstration of an item’s acceptability to meet the agency’s minimum need;
(2) Relate to an item’s performance and intended use, not an offeror’s capability;
(3) Are supported by market research;
(4) Include consideration of items supplied satisfactorily under recent or current Government contracts, for the same or similar items; and
(5) Consider the entire relevant commercial market, including small business concerns.
(d) Commercial market acceptance shall not be used as a sole criterion to evaluate whether an item meets the Government’s requirements.
(e) When commercial market acceptance is used, the contracting officer shall document the file to-
(1) Describe the circumstances justifying the use of commercial market acceptance criteria; and
(2) Support the specific criteria being used.