OFFICE OF THE UNDER SECRETARY OF DEFENSE

3000 DEFENSE PENTAGON

WASHINGTON, DC 2030-3000

April 14, 1999

DP (DAR)

In reply refer to

DAR Tracking Number: 98-O0013

MEMORANDUM FOR DIRECTORS OF DEFENSR AGENCIES

SUBJECT: Class Deviation-Commercial Item Omnibus Clauses for Acquisitions Using the Standard Procurement System

Effective immediately, all Department of Defense contracting activities may deviate from the requirements An Federal Acquisition Regulation (FAR) 12.301(b)(4), the clause at FAR 52.212-5, Defense FAR Supplement (DFARS) 212.301(f)(iii), and the clause at DFARS 252.212-7001, when using the Standard Procurement System (SPS) version 4.1.a, and subsequent versions, to contract for commercial items under the procedures of FAR Part 12 and DFARS Part 212.

FAR 12.30l(b)(4) requires contracting officers to include the clause at 52.212-5 in solicitations ad contracts for commercial items, and to identify any of the clauses listed in paragraph (b) or (c) that are applicable to the specific acquisition. DFARS 212.301(f)(iii) requires contracting officers to include the clause at 252.212-7001 in solicitations and contracts for commercial items, and to complete paragraph (b) to identify any applicable clauses.

Contracting officers may use SPS clause logic to select automatically the clauses in paragraph (a), and identify automatically any applicable clauses in paragraphs (b) and (c), of the clause at FAR 52.212-5. Further, contracting officers may use SPS clause logic to select automatically the clause in paragraph (a), and identify automatically any applicable clauses in paragraph (b), of the clause at DFARS 252.212-7001. When using these procedures, contracting officers shall use the attached clauses, containing audit and subcontract clause requirements applicable to commercial items, in lieu of the clauses at FAR 52.212-5 and DFARS 252.212-7001.

This class deviation is approved until April 30, 2001, or until the DFARS is revised.

Attachment

FAR 52.212-5 CONTRACT TERMS AND CONDITI0NS REQUIRED TO IMPLEMENT STATUTES OR EXECUTIVE ORDER--COMMERCIAL ITEMS (XXX 1999) (DEVIATION)

(a) Comptroller General Examination of Record. The Contractor agrees to comply with the provisions of this paragraph (a) if this contract was awarded using other than sealed bid, is in excess of the simplified acquisition threshold, and does not contain the clause at 52.215-2, Audit and Records-Negotiation.

(1) The Comptroller General of the United States, or an authorized representative of the Comptroller General, shall have access to the right to examine any of the Contractor's directly pertinent records involving transactions related to this contract.

(2) The Contractor shall make available at its offices at all reasonable times, the records, materials, and other evidence for examination, audit, or reproduction, until 3 years after final payment under this contract or for any shorter period specified in FAR Subpart 4.7, Contractor Records Retention, of the other clauses of this contract. If this contract is completely or partially terminated, the records relating to the work terminated shall be made available for 3 years after any resulting final termination settlement. Records relating to appeals under the disputes clause or to litigation or the settlement of claims arising under or relating to this contract shall be made available until such appeals, litigation, or claims are finally resolved.

(3) As used in this clause, records include books, documents, accounting procedures and practices, and other data, regardless of form. This does not require the Contractor to create or maintain any record that the Contractor does not maintain in the ordinary course of business or pursuant to a provision of law.

(b) The Contractor is not required to include any FAR clause, other than those listed below (and as may be required by an addenda to this paragraph to establish the reasonableness of prices under Part 15), in a subcontract for commercial items or commercial components-