FAR

FAR

FAC Number: 2022-08
Effective Date: 09/23/2022

Subpart 12.1 - Acquisition of Commercial Products and Commercial Services

12.101 Policy.

The head of the agency shall—

      (a) Conduct market research to determine whether commercial products, commercial services, or nondevelopmental items are available that could meet the agency’s requirements;

      (b) Acquire commercial products, commercial services, or nondevelopmental items when they are available to meet the needs of the agency; and

      (c) Require prime contractors and subcontractors at all tiers to incorporate, to the maximum extent practicable, commercial products, commercial services, or nondevelopmental items as components of items supplied to the agency.

12.102 Applicability.

      (a) This part shall be used for the acquisition of supplies or services that meet the definitions of “commercial product” or “commercial service” at 2.101.

      (b) Contracting officers shall use the policies in this part in conjunction with the policies and procedures for solicitation, evaluation and award prescribed in part  13, Simplified Acquisition Procedures; part  14, Sealed Bidding; or part  15, Contracting by Negotiation, as appropriate for the particular acquisition.

      (c) Contracts for the acquisition of commercial products or commercial services are subject to the policies in other parts of the FAR. When a policy in another part of the FAR is inconsistent with a policy in this part, this part  12 shall take precedence for the acquisition of commercial products or commercial services.

      (d) The definition of commercial product uses the phrase “purposes other than governmental purposes”. These purposes are those that are not unique to a government.

      (e) This part shall not apply to the acquisition of commercial products or commercial services

           (1) At or below the micro-purchase threshold;

           (2) Using the Standard Form 44 (see 13.306);

           (3) Using the imprest fund (see 13.305);

           (4) Using the Governmentwide commercial purchase card as a method of purchase rather than only as a method of payment; or

           (5) Directly from another Federal agency.

      (f)

(1) Contracting officers may treat any acquisition of supplies or services that, as determined by the head of the agency, are to be used to facilitate defense against or recovery from cyber, nuclear, biological, chemical, or radiological attack, as an acquisition of commercial products or commercial services.

           (2) A contract in an amount greater than $20 million that is awarded on a sole source basis for a product or service treated as a commercial product or commercial service under paragraph (f)(1) of this section but does not meet the definition of a commercial product or commercial service as defined at FAR 2.101 shall not be exempt from—

                (i) Cost accounting standards (see subpart  30.2); or

                (ii) Certified cost or pricing data requirements (see 15.403).

12.103 Commercially available off-the-shelf (COTS) items.

Commercially available off-the-shelf (COTS) items are defined in 2.101. Unless indicated otherwise, all of the policies that apply to commercial products also apply to COTS items. Section 12.505 lists the laws that are not applicable to COTS (in addition to 12.503 and 12.504).

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