Overview
FAR 12.213 acknowledges that commercial buyers and sellers typically propose competing terms and conditions, providing Contracting Officers the flexibility to incorporate specific industry practices discovered during market research. It emphasizes balancing the interests of both parties while ensuring that any adopted commercial practices comply with existing laws and Executive orders.
Key Rules
- Balance of Interests: While FAR Part 12 provides standardized terms intended to be fair to both parties, it recognizes that these may need adjustment based on specific market norms.
- Role of Market Research: Contracting Officers (COs) are encouraged to use market research to identify specific commercial practices relevant to the particular item or service being acquired.
- Discretionary Incorporation: A CO may include unique commercial practices in a solicitation or contract if they determine the practices will lead to a mutually satisfactory business arrangement.
- Legal Compliance: Any incorporated commercial practice must not be prohibited by law or applicable Executive orders.
Practical Implications
- This section allows the government to be a more "commercial-like" customer by adopting industry-standard warranties, delivery terms, or quality protocols that might otherwise conflict with standard government-unique clauses.
- Contractors can use this provision to advocate for the inclusion of their standard commercial terms during the pre-solicitation phase, provided they can demonstrate that such practices are standard in the marketplace and legally permissible.