12.302
Tailoring of provisions and clauses for the acquisition of commercial products and commercial services
FAR 12.302 allows tailoring of commercial contract provisions to match market practices, but prohibits changes to certain statutory clauses and requires formal waivers for deviations from customary commercial practices.
Overview
FAR 12.302 outlines the rules for tailoring solicitation provisions and contract clauses when acquiring commercial products and commercial services. It allows contracting officers to adapt certain provisions and clauses to better align with commercial market practices, provided that such tailoring is based on market research and does not conflict with statutory requirements or customary commercial practices unless a waiver is obtained. The section also specifies which parts of the standard contract clause (52.212-4) cannot be tailored and details the process for documenting any tailored terms through addenda to the solicitation and contract.
Key Rules
- General Tailoring Authority
- Contracting officers may tailor provisions and clauses to reflect commercial market practices, based on market research, within the limits of this subpart.
- Non-Tailorable Clauses
- Certain statutory requirements in clause 52.212-4 (Assignments, Disputes, Payment, Invoice, Other compliances, Compliance with laws unique to Government contracts, Unauthorized obligations) cannot be tailored.
- Consistency with Commercial Practice
- Tailoring must not conflict with customary commercial practices unless a waiver is approved, which requires justification and agency approval.
- Documentation of Tailoring
- All tailored terms must be included as addenda to the solicitation and contract, and indicated in Block 27a of the SF1449 form.
Responsibilities
- Contracting Officers: Conduct market research, ensure tailoring aligns with commercial practices, obtain waivers if needed, and document all tailored terms as addenda.
- Contractors: Review tailored provisions and clauses, ensure compliance with both standard and tailored terms, and understand which clauses cannot be negotiated.
- Agencies: Approve waivers for deviations from customary commercial practices and oversee compliance with statutory requirements.
Practical Implications
- This section enables flexibility in government contracts for commercial items, allowing adaptation to industry norms while maintaining statutory protections.
- Contractors should be aware that some terms are non-negotiable and that any deviations from standard commercial practices must be formally justified and approved.
- Common pitfalls include improper tailoring of non-tailorable clauses or failing to document tailored terms correctly.