15.209 Solicitation provisions and contract clauses
Source: FAR 15.209 on acquisition.gov
FAR 15.209 mandates the inclusion of specific solicitation provisions and contract clauses in negotiated procurements, ensuring compliance with statutory, regulatory, and procedural requirements based on contract type and circumstances.
Overview
FAR 15.209 prescribes the specific solicitation provisions and contract clauses that contracting officers must include in negotiated procurements. It details when to use certain FAR clauses based on the type of acquisition, contract value, funding source, and other circumstances. The section ensures that solicitations and contracts contain the appropriate instructions, audit rights, and procedural requirements to support fair and transparent competition, proper record-keeping, and compliance with statutory and regulatory mandates.
Key Rules
- Instructions to Offerors (FAR 52.215-1)
- Must be included in all competitive solicitations where award may be made without discussions; use alternates if discussions or alternate proposals are anticipated.
- Audit and Records (FAR 52.215-2)
- Required in most negotiated contracts, with exceptions for small purchases, certain utilities, and exempt commercial items. Special rules apply for contracts using American Recovery and Reinvestment Act (ARRA) funds and for specific contract types (e.g., cost-reimbursement with nonprofits).
- Request for Information (FAR 52.215-3)
- Inserted in solicitations for information or planning purposes, with clear marking.
- Facsimile Proposals (FAR 52.215-5)
- Included if facsimile proposals are authorized.
- Place of Performance (FAR 52.215-6)
- Included unless the Government specifies the place of performance.
- Order of Precedence (FAR 52.215-8)
- Required for solicitations and contracts using the Uniform Contract Format.
Responsibilities
- Contracting Officers: Ensure correct clauses and provisions are included based on acquisition type, value, and funding; specify alternates as required; clearly mark solicitations for information/planning.
- Contractors: Review solicitations for applicable clauses; comply with audit, proposal, and performance requirements; understand implications of ARRA funding and alternate clauses.
- Agencies: Oversee compliance with clause inclusion and proper solicitation marking; ensure statutory and regulatory requirements are met.
Practical Implications
- This section standardizes the use of key clauses to ensure consistency, transparency, and compliance in negotiated acquisitions. Contractors must be vigilant in reviewing solicitations for applicable clauses, especially regarding audit rights and proposal instructions. Failure to comply with these requirements can result in proposal rejection or post-award issues, particularly with respect to audit access and the handling of ARRA funds.
When contracting by negotiation-
(a) The contracting officer shall insert the provision at 52.215-1, Instructions to Offerors-Competitive Acquisition, in all competitive solicitations where the Government intends to award a contract without discussions.
(1) If the Government intends to make award after discussions with offerors within the competitive range, the contracting officer shall use the basic provision with its Alternate I.
(2) If the Government would be willing to accept alternate proposals, the contracting officer shall alter the basic clause to add a new paragraph (c)(9) substantially the same as Alternate II.
(b)
(1) Except as provided in paragraph (b)(2) of this section, the contracting officer shall insert the clause at 52.215-2, Audit and Records-Negotiation (https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title10-section3841&num=0&edition=prelim" target="_blank">10 U.S.C. 3841, http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title41-section4706&num=0&edition=prelim" target="_blank">41 U.S.C. 4706, and Audit Requirements in the OMB Uniform Guidance at 2 CFR part 200, subpart F), in solicitations and contracts except those for-
(i) Acquisitions not exceeding the simplified acquisition threshold;
(ii) The acquisition of utility services at rates not exceeding those established to apply uniformly to the general public, plus any applicable reasonable connection charge; or
(iii) The acquisition of commercial products or commercial services exempted under 15.403-1.
(2)
(i) When using funds appropriated or otherwise made available by the American Recovery and Reinvestment Act of 2009 (Pub. L. 111-5)-
(A) The exceptions in paragraphs (b)(1)(i) through (b)(1)(iii) are not applicable; and
(B) Use the clause with its Alternate I.
(ii)
(A) In the case of a bilateral contract modification that will use funds appropriated or otherwise made available by the American Recovery and Reinvestment Act of 2009, the contracting officer shall specify applicability of Alternate I to that modification.
(B) In the case of a task- or delivery-order contract in which not all orders will use funds appropriated or otherwise made available by the American Recovery and Reinvestment Act of 2009, the contracting officer shall specify the task or delivery orders to which Alternate I applies.
(3) For cost-reimbursement contracts with State and local Governments, educational institutions, and other nonprofit organizations, the contracting officer shall use the clause with its Alternate II.
(4) When the head of the agency has waived the examination of records by the Comptroller General in accordance with 25.1001, use the clause with its Alternate III.
(c) When issuing a solicitation for information or planning purposes, the contracting officer shall insert the provision at 52.215-3, Request for Information or Solicitation for Planning Purposes, and clearly mark on the face of the solicitation that it is for information or planning purposes.
(d) [Reserved]
(e) The contracting officer shall insert the provision at 52.215-5, Facsimile Proposals, in solicitations if facsimile proposals are authorized (see 15.203(d)).
(f) The contracting officer shall insert the provision at 52.215-6, Place of Performance, in solicitations unless the place of performance is specified by the Government.
(g) [Reserved]
(h) The contracting officer shall insert the clause at 52.215-8, Order of Precedence-Uniform Contract Format, in solicitations and contracts using the format at 15.204.