12.213
Other commercial practices
Contracting officers may incorporate appropriate commercial practices into contracts if supported by market research and not prohibited by law or Executive order.
Overview
FAR 12.213 emphasizes that while standard terms and conditions are provided for commercial acquisitions, contracting officers should also consider other commercial practices identified through market research. If these practices are appropriate, legal, and not prohibited by Executive order, they may be incorporated into solicitations and contracts to better align with industry norms and facilitate mutually satisfactory agreements. This flexibility is intended to ensure that government contracts for commercial products and services reflect current market realities and foster fair, balanced business arrangements.
Key Rules
- Standard Terms and Conditions
- The FAR prescribes balanced terms and conditions for commercial acquisitions, but these are not always exhaustive or exclusive.
- Consideration of Other Commercial Practices
- Contracting officers should use market research to identify and consider additional commercial practices that may be appropriate for a specific acquisition.
- Incorporation Criteria
- Additional commercial practices can be included in contracts if they are suitable, not prohibited by law or Executive order, and contribute to a satisfactory business arrangement for both parties.
Responsibilities
- Contracting Officers: Must conduct market research, evaluate commercial practices, and determine appropriateness for inclusion in contracts, ensuring compliance with laws and Executive orders.
- Contractors: Should be prepared to propose or negotiate commercial practices that align with industry standards and are legally permissible.
- Agencies: Should support contracting officers in conducting thorough market research and legal reviews as needed.
Practical Implications
- This section allows flexibility in contract terms to better match commercial market norms, potentially improving competition and value.
- Contractors may benefit from proposing industry-standard practices, but must ensure they are not legally prohibited.
- Common pitfalls include failing to document market research or inadvertently including terms that conflict with federal law or Executive orders.