As part of the Federal Acquisition Streamlining Act of 1994, Congress established a preference for agencies to buy commercial goods and services instead of governmentunique items whenever feasible.
As part of the Federal Acquisition Streamlining Act of 1994, Congress established
a preference for agencies to buy commercial goods and services instead of
government-unique items whenever feasible. This preference was implemented
primarily through a new Federal Acquisition Regulation ? Part 12, "Acquisition
of Commercial Items."
Since then, most agencies have converted their more common procurements
to Part 12. But in many cases, agencies have continued to use traditional
acquisition techniques to acquire items that include substantial commercial
When an agency decides to buy commercial items pursuant to FAR Part 12,
it subjects itself to important restrictions. For example, the regulation
states that "contracts for commercial items shall rely on contractors' existing
quality assurance systems as a substitute for government inspection and
testing before tender for acceptance unless customary market practices for
the commercial item being acquired include in-process inspection." And the
FAR limits the government's right to impose special warranty requirements
that exceed commercially applicable warranties. Similar restrictions are
imposed on subcontracts awarded under the prime contract.
In some Part 12 procurements, the agency may tailor its requirements to
impose more stringent specifications. However, the FAR states that: "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
When an agency uses a procurement method other than FAR Part 12, it must
still promote the purchase of commercial items by subcontracts. In all contracts
for noncommercial items, an agency must include a standard clause that provides
in part, "Not-with-standing any other clause of this contract, the contractor
is not required to include any FAR provision or clause" beyond three particular
Those clauses set forth the special requirements related to Equal Opportunity,
Affirmative Action for Disabled Veterans and Vietnam Era Veterans, and Affirmative
Action for Disabled Workers. This means that a prime contractor may flow
down more of the government-unique clauses if it wishes, but the agency
cannot require it.
Oddly, the explicit prohibition against the government imposing special
requirements for data rights, inspection and acceptance, and warranty terms
is not found in the standard commercial subcontracting clause that is included
in prime contracts for noncommercial items. Yet the same effect is achieved
through listing the three specific clauses as the only ones that a prime
contractor is required to flow down to its subcontractors supplying commercial
Despite this, some contractors still impose government-unique requirements
on subcontracts, even when buying commercial items from them. Any contractor
in that position should re-evaluate its approach.
Peckinpaugh is corporate counsel for DynCorp, Reston, Va.
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