PART 5212 ACQUISITION OF COMMERCIAL ITEMS
SUBPART 5212.1—ACQUISITION OF COMMERCIAL ITEMS - GENERAL
5212.102 (FAR 12.102) Applicability.
(f)(1) HCAs are delegated the authority to make the determinations described in FAR 12.102 (f)(1).
SUBPART 5212.2—SPECIAL REQUIREMENTS FOR THE ACQUISITION OF COMMERCIAL ITEMS
5212.207 (DFARS 212.207) Contract type.
(b)(iii) Submit the required contracting officer determination for agency head approval to DASN(AP) by email at RDAJ&As.firstname.lastname@example.org with the subject “DFARS 212.207(b)(iii) - D&F to Use T&M/LH Contract Type for Commercial Services.”
SUBPART 5212.3—SOLICITATION PROVISIONS AND CLAUSES FOR THE ACQUISITION OF COMMERCIAL ITEMS
5212.301 (FAR 12.301) Solicitation provisions and contract clauses for the acquisition of commercial items.
Only USD(AT&L) DPAP may approve the use of any component-unique provision or clause that meets the conditions of DFARS 201.304(1)(i).
5212.302 (DFARS 212.302) Tailoring of provisions and clauses for the acquisition of commercial items.
(c) Tailoring inconsistent with customary commercial practice. HCAs may delegate the authority to approve waivers under FAR 12.302(c) to no lower than the CCOs at their subordinate contracting offices, except ASN(RDA) approval of the waiver is required if any additional terms or conditions are to be included. Submit waivers requiring ASN(RDA) approval via DASN(AP) by email at RDAJ&As.email@example.com with the subject “DFARS 212.302 - Waiver—Authority to Add Terms and Conditions Inconsistent with Commercial Practice. All waiver requests shall contain the necessary documentation justifying the proposed action.
SUBPART 5212.71— PILOT PROGRAM FOR ACQUISITION OF MILITARY-PURPOSE NONDEVELOPMENTAL ITEMS
5212.7102 (DFARS 212.7102) Pilot program.
5212.7102-2 (PGI 212.7102-2) Reporting requirements.
(a) The annual report identifying all contracts awarded under the Pilot Program on Acquisition of Military Purpose Nondevelopmental Items during the preceding fiscal year shall be submitted to DASN(AP) by October 15 of each year by email at RDAJ&As.firstname.lastname@example.org with the subject “DFARS 212.7102-3(a) - Pilot Program For Acquisition Of Military-Purpose Nondevelopmental Items.”
SUBPART 5212.90—INNOVATIVE COMMERCIAL CONTRACTING TECHNIQUES
5212.9000 Model Commercial Contracting Strategy.
DoN contracting activities may use the strategy outlined here when they are seeking breakthrough commercial solutions for meeting DoN requirements. The strategy generally consists of two phases, as follows:
(a)(1) Phase I: Commercial Area Announcement (CAA). During Phase I the contracting officer issues a Commercial Area Announcement (CAA). The CAA includes a statement that explains what the DoN wants to accomplish or what problem the DoN is trying to solve. The statement may be specific or broad, in nature. A relatively specific objective, for example, might be to provide a secure means of controlling vehicle access to a military installation while minimizing traffic backup.
A broader objective might be to reduce operating cost associated with legacy ships. As necessary, the statement should include background information that is helpful to a clear understanding of the objectives, and any additional information that may affect potential solutions.
(2) The CAA requests interested firms to respond by outlining, in broad terms, innovative and imaginative ways by which they believe they could meet the DoN objectives. Information concerning the significant business practices that affect their performance and their relationships with customers, as well as a rough estimate of the price associated with each innovative approach, is also requested. The overarching objective of this phase is to provide the DoN with a clear picture of "the state of what is possible" in the commercial marketplace, but not to receive traditional full-blown proposals. The DoN uses the responses to the CAA to make an informed decision concerning the strategy it will pursue to meet its objectives and, if the DoN elects to proceed with a procurement, to structure the solicitation to maximize commercial sector interest and encourage truly innovative and imaginative proposals.
(3) The CAA should state clearly that:
(i) It is for informational purposes only.
(ii) Responses in any form are not offers.
(iii) Issuance of the CAA does not impose any obligation on the DoN or signify a firm commitment to issue a solicitation or a contract.
(iv)There are no funds available to pay for the cost of preparing the responses.
(4) The CAA should encourage responses from all segments of the industry sector, which may include small, HUBZone small, small disadvantaged and woman-owned small businesses, and should encourage responses from firms that may not regularly do business with the Government. In order to attract such firms, the CAA should be published in appropriate trade journals or newspapers, as well as through the Government-wide point of entry (GPE). Contracting officers using this strategy are delegated authority to approve the publication of paid advertisements in newspapers (see FAR 5.502). For purposes of the GPE synopsis, enter "R," in Block 1, Action Code, to designate that the type of action addressed by the CAA is "Sources Sought" and enter "COMMERCIAL AREA ANNOUNCEMENT" followed by a brief description of the CAA's subject matter in Block 8, Subject. The following is an example Block 8: "COMMERCIAL AREA ANNOUNCEMENT/ INNOVATIVE IDEAS SOUGHT FOR REDUCING OPERATING COSTS OF NAVY LEGACY SHIPS".
(5) The CAA should be published as early as feasible after a need has been identified and should give interested commercial firms a reasonable period of time to submit responses. In assessing responses to the CAA, DoN activities should consider, to the extent feasible, any responses received after the requested submission date.
(6) DoN activities should consider holding a "Business Opportunity Day," after publication of the CAA and before responses are received, to review the DoN's objectives and to clarify industry questions.
(b)(1) Phase II: Request for Commercial Offerings. Using information provided by industry in response to the CAA, the contracting officer and technical personnel develop a solicitation package. To encourage responses from firms that may not regularly do business with the Government, the solicitation is identified as a Request for Commercial Offerings (RCO). The RCO, consistent with applicable law and regulation, should be provided to all commercial entities that responded to the CAA, as well as to any other commercial concerns that request a copy. Electronic distribution of the RCO is encouraged. The RCO is intended to be built around a FAR Part 12 solicitation and a performance-based statement of objectives. Although the statement of objectives should provide maximum flexibility for contractor creativity in tailoring proposals to satisfy the DoN requirements, it should be written to reflect "what is possible" within the commercial sector, as determined from the responses to the CAA. The RCO should also be written to reflect any customary business practices that the DoN activity became aware of as a result of the CAA. The performance-based statement of objectives should be broadly written to encourage maximum participation and may not disclose any unique approaches that were submitted in response to the CAA or reveal any proprietary aspects of the ideas submitted.
(2) To the extent required by FAR Part 5, publish a synopsis of the RCO through the GPE. Contracting officers may also publish notice of the RCO in appropriate newspapers and trade journals. Contracting officers using this strategy are delegated authority to approve the publication of paid advertisements in newspapers (see FAR 5.502). In addition, notice of the RCO may also be published on appropriate web sites. DoN contracting activities should make the RCO available to all parties that responded to the CAA, as well as to any additional potential offerors who respond to the synopsis or other published notice. Electronic distribution of the RCO is encouraged.
(3) The RCO should seek firm-fixed-price proposals that address the offerors' breakthrough strategies and detailed approaches for accomplishing the DoN's objectives, including identification of proprietary aspects of the proposal and small business alliances/partnering arrangements. Consistent with law and regulation, solicitations/contracts may include provisions that permit payment of additional predetermined amounts for performance or delivery that is better than that required by the contract if the payments are based on factors other than the contractor's incurred costs.
(4) The contracting officer may use, as appropriate, the streamlined procedure for soliciting offers for commercial items prescribed in FAR 12.603.
(5) Depending on the nature of the requirement or problem that the RCO is intended to address, RCOs may provide for multiple evaluations of proposals over an extended period. This approach is appropriate when the contracting activity anticipates awarding multiple contracts and when there is a reasonable expectation that a passage of time may lead to the identification by commercial entities of additional innovative ways to meet the DoN's requirement. When this multiple evaluation approach is used, the RCO should indicate the date by which proposals should be received in order to be considered during the initial evaluation. Proposals received by that date should be evaluated and initial contract(s) awarded, as appropriate. Also, the RCO should either indicate the date(s) by which subsequent proposals are to be submitted or state that such date(s) are to be established by means of an amendment to the RCO. Offerors who did not submit an offer prior to the initial due date may submit an offer for a subsequent evaluation. Additionally, proposals previously evaluated and not selected should not be reevaluated during a subsequent evaluation, but any offeror who previously submitted a proposal may submit a new proposal, including a proposal that is based on, or similar to, its previously submitted proposal. Proposals received after the exact due date and time for any specified evaluation period should be handled in accordance with paragraph (f) of the "Instructions to Offerors--Commercial Items" provision at FAR 52.212-1.
(6) The DoN evaluates proposals in accordance with the evaluation scheme set forth in the RCO. Generally, these should provide for a "best value" selection that balances technical and cost aspects of the proposals. Evaluation factors may include such items as: (i) the extent to which the proposed technical approach is likely to achieve or exceed the DoN's objectives, (ii) the extent of small business participation, (iii) the offeror's experience and past performance and (iv) the price.