[Code of Federal Regulations]

[Title 48, Volume 1]

[Revised as of October 1, 2005]

From the U.S. Government Printing Office via GPO Access

[CITE: 48CFR12.302]



[Page 199-200]

 

            TITLE 48--FEDERAL ACQUISITION REGULATIONS SYSTEM

 

                CHAPTER 1--FEDERAL ACQUISITION REGULATION

 

PART 12_ACQUISITION OF COMMERCIAL ITEMS--Table of Contents

 

   Subpart 12.3_Solicitation Provisions and Contract Clauses for the 

                     Acquisition of Commercial Items

 

Sec. 12.302  Tailoring of provisions and clauses for the acquisition of commercial items.



    (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 items. However, because of the broad range of commercial 

items 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 Items, and 

the clause at 52.212-4, Contract Terms and Conditions-Commercial Items, 

to adapt to the market conditions for each acquisition.

    (b) Tailoring 52.212-4, Contract Terms and Conditions--Commercial 

Items. The following paragraphs of the clause at 52.212-4, Contract 

Terms and Conditions--Commercial Items, 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; and

    (6) Compliance with laws unique to Government contracts.

    (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 items in a manner that is inconsistent with customary 

commercial practice for the item being acquired unless a waiver is 

approved in accordance with agency



[[Page 200]]



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 Block 27a of the SF 1449 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 SF 1449; a continuation of the description 

of the supplies/services being acquired; further elaboration of any 

other item(s) on the SF 1449; 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.).



[60 FR 48241, Sept. 18, 1995, as amended at 61 FR 45772, Aug. 29, 1996; 

61 FR 67430, Dec. 20, 1996; 62 FR 264, Jan. 2, 1997]