12.302 Tailoring of provisions and clauses for the acquisition of commercial products and commercial services
Source: FAR 12.302 on acquisition.gov
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.
(a) General. The provisions and clauses established in this subpart are intended to address, to the maximum extent practicable, commercial market practices for a wide range of potential Government acquisitions of commercial products and commercial services. However, because of the broad range of commercial products and commercial services acquired by the Government, variations in commercial practices, and the relative volume of the Government’s acquisitions in the specific market, contracting officers may, within the limitations of this subpart, and after conducting appropriate market research, tailor the provision at 52.212-1, Instructions to Offerors-Commercial Products and Commercial Services, and the clause at 52.212-4, Contract Terms and Conditions-Commercial Products and Commercial Services, to adapt to the market conditions for each acquisition.
(b) Tailoring 52.212-4, Contract Terms and Conditions-Commercial Products and Commercial Services. The following paragraphs of the clause at 52.212-4, Contract Terms and Conditions-Commercial Products and Commercial Services, implement statutory requirements and shall not be tailored—
(1) Assignments;
(2) Disputes;
(3) Payment (except as provided in subpart 32.11);
(4) Invoice;
(5) Other compliances;
(6) Compliance with laws unique to Government contracts; and
(7) Unauthorized obligations.
(c) Tailoring inconsistent with customary commercial practice. The contracting officer shall not tailor any clause or otherwise include any additional terms or conditions in a solicitation or contract for commercial products or commercial services in a manner that is inconsistent with customary commercial practice for the item being acquired unless a waiver is approved in accordance with agency procedures. The request for waiver must describe the customary commercial practice found in the marketplace, support the need to include a term or condition that is inconsistent with that practice and include a determination that use of the customary commercial practice is inconsistent with the needs of the Government. A waiver may be requested for an individual or class of contracts for that specific item.
(d) Tailoring shall be by addenda to the solicitation and contract. The contracting officer shall indicate in Block27 a of the https://www.gsa.gov/system/files/SF1449-21.pdf" target="_blank">SF1449 if addenda are attached. These addenda may include, for example, a continuation of the schedule of supplies/services to be acquired from blocks 18 through 21 of the https://www.gsa.gov/system/files/SF1449-21.pdf" target="_blank">SF1449; a continuation of the description of the supplies/services being acquired; further elaboration of any other item(s) on the https://www.gsa.gov/system/files/SF1449-21.pdf" target="_blank">SF1449; any other terms or conditions necessary for the performance of the proposed contract (such as options, ordering procedures for indefinite-delivery type contracts, warranties, contract financing arrangements, etc.).