12.505 Applicability of certain laws to contracts for the acquisition of COTS items
Source: FAR 12.505 on acquisition.gov
FAR 12.505 exempts COTS item contracts from several statutory requirements, streamlining procurement and reducing compliance burdens for both contractors and agencies.
Overview
FAR 12.505 clarifies which federal laws do not apply to contracts for the acquisition of Commercially Available Off-the-Shelf (COTS) items. COTS items, as a subset of commercial products, benefit from streamlined procurement by exempting them from certain statutory requirements that typically apply to federal contracts. This section references additional exemptions beyond those listed in FAR 12.503 and 12.504, specifically targeting domestic content requirements, recovered material certifications, and certain compliance plan mandates.
Key Rules
- Exemption from Domestic Content Tests
- The Buy American Act's domestic content requirements for supplies (41 U.S.C. 8302(a)(1)) and construction materials (41 U.S.C. 8303(a)(2)) do not apply to COTS acquisitions, with specific exceptions noted in FAR 25.101(a)(2)(ii) and 25.201(b)(2)(ii).
- Recovered Material Certification Not Required
- The requirement to certify and estimate the percentage of recovered material (42 U.S.C. 6962(c)(3)(A)) is not applicable to COTS contracts.
- Human Trafficking Compliance Plan Exemption
- COTS contracts are exempt from the compliance plan and certification requirements related to ending trafficking in government contracting (section 1703 of Pub. L. 112-239).
Responsibilities
- Contracting Officers: Must ensure that COTS contracts do not include the inapplicable clauses and are aware of the specific exemptions.
- Contractors: Should understand which statutory requirements do not apply to their COTS contracts and avoid unnecessary compliance efforts.
- Agencies: Should oversee that procurement processes for COTS items reflect these exemptions and do not impose additional, non-required burdens.
Practical Implications
- This section exists to reduce administrative burden and streamline the acquisition of COTS items by removing certain statutory requirements.
- It impacts daily contracting by clarifying which laws and clauses should not be included in COTS contracts, preventing unnecessary compliance work.
- Common pitfalls include mistakenly applying inapplicable clauses or failing to recognize the specific exceptions noted in the referenced FAR parts.
COTS items are a subset of commercial products. Therefore, any laws listed in sections 12.503 and 12.504 are also inapplicable or modified in their applicability to contracts or subcontracts for the acquisition of COTS items. In addition, the following laws are not applicable to contracts for the acquisition of COTS items:
(a)
(1) The portion of https://uscode.house.gov/view.xhtml?path=/prelim@title41/subtitle4/chapter83&edition=prelim" target="_blank">41 U.S.C. 8302 , American Materials Required for Public Use, paragraph (a)(1) that reads “substantially all from articles, materials, or supplies mined, produced, or manufactured in the United States,” Buy American—Supplies, domestic content test, except as provided in 25.101(a)(2)(ii) (see 52.225-1 and 52.225-3).
(2)The portion of https://uscode.house.gov/view.xhtml?path=/prelim@title41/subtitle4/chapter83&edition=prelim" target="_blank">41 U.S.C. 8303, Contracts for Public Works, paragraph (a)(2) that reads “substantially all from articles, materials, or supplies mined, produced, or manufactured in the United States,” Buy American—Construction Materials, domestic content test, except as provided in 25.201(b)(2)(ii)(see 52.225-9 and 52.225-11).
(b) http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title42-section69&num=0&edition=prelim" target="_blank">42 U.S.C. 69 62(c)(3)(A), Certification and Estimate of Percentage of Recovered Material.
(c) Compliance Plan and Certification Requirement, section 1703 of the National Defense Authorization Act for Fiscal Year 2013 (Pub. L. 112-239), Title XVII, Ending trafficking in Government Contracting (see 52.222-50(h) and 52.222-56).