Overview
This section prescribes the mandatory and discretionary provisions and clauses for the acquisition of commercial products and commercial services. It establishes a streamlined framework that prioritizes customary commercial practices and limits government-unique requirements to those specifically mandated by law or executive order.
Key Rules
- Limitation on Clauses: In accordance with 41 U.S.C. 3307, contracts should only include clauses required by law, executive orders, or those determined to be consistent with customary commercial practice.
- The "Core" Commercial Clauses:
- 52.212-1 (Instructions): Provides streamlined instructions to offerors; may be tailored.
- 52.212-3 (Reps & Certs): A consolidated list of offeror representations; tailoring is prohibited except under specific deviations.
- 52.212-4 (Standard Terms): Contains terms consistent with commercial practice; may be tailored.
- 52.212-5 (Statutory/EO Requirements): Incorporates by reference specific laws and executive orders; the Contracting Officer must "check the box" for applicable clauses, and tailoring is prohibited.
- Administrative Requirements: Mandatory inclusion of provisions related to System for Award Management (SAM) registration, CAGE code reporting, and telecommunications representations.
- Tailoring and Addenda: While the core commercial clauses are central, Contracting Officers may add other FAR clauses (e.g., for options or indefinite-delivery contracts) via an addendum, provided they remain consistent with FAR 12.302.
- Agency Restrictions: Agencies may only supplement these requirements for unique statutory reasons or with high-level approval from a senior procurement executive.
Practical Implications
- Streamlined Compliance: This section reduces the "regulatory thickness" for commercial vendors by utilizing incorporation by reference and consolidating certifications, making it easier for non-traditional defense contractors to do business with the government.
- Customized Checklists: Contractors must pay close attention to the specific boxes checked in clause 52.212-5, as this serves as the definitive list of statutory compliance obligations for that specific award.