Overview
FAR 12.302 provides Contracting Officers with the authority to modify standard commercial provisions and clauses to better align with specific market conditions while maintaining essential statutory protections. It establishes the framework for "tailoring" government contracts to mirror customary commercial practices, provided such changes do not conflict with core legal requirements.
Key Rules
- Authority to Tailor: Contracting Officers (COs) may tailor provisions 52.212-1 (Instructions to Offerors) and clause 52.212-4 (Terms and Conditions) based on market research to adapt to specific industry conditions.
- Prohibited Tailoring: The following seven areas of FAR 52.212-4 are statutory and cannot be tailored: Assignments, Disputes, Payment (with minor exceptions), Invoice, Other compliances, Compliance with laws unique to Government contracts, and Unauthorized obligations.
- Consistency with Commercial Practice: COs are generally forbidden from including terms inconsistent with customary commercial practices unless a formal waiver is approved in accordance with agency procedures.
- Waiver Requirements: A request for a waiver must describe the customary practice, justify why a deviation is necessary, and determine that the commercial practice is inconsistent with the Government’s needs.
- Documentation via Addenda: All tailoring must be incorporated via addenda to the solicitation or contract, and the CO must indicate the presence of these addenda in Block 27a of the SF 1449.
Practical Implications
- Contractors should carefully inspect Block 27a of the SF 1449 and any attached addenda, as these sections contain the specific modifications that deviate from standard "off-the-shelf" Government commercial terms.
- Because the waiver process for terms inconsistent with commercial practice is administratively burdensome, the Government is strongly incentivized to adhere to standard industry norms for commercial products and services.