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  • Question

    Is there regulation that speaks to adding FAR 52.212-1 & 52.212-2 in your solicitation twice, once in by reference and the second, as an Addendum to each of the clauses?


    Answer

    There is a clear preference for the incorporation of provisions and clauses by reference.  FAR 52.102(a) states:

    Provisions and clauses should be incorporated by reference to the maximum practical extent, rather than being incorporated in full text, even if they—

    (1) Are used with one or more alternates or on an optional basis;

    (2) Are prescribed on a “substantially as follows” or “substantially the same as” basis, provided they are used verbatim;

    (3) Require modification or the insertion by the Government of fill-in material (see 52.104); or

    (4) Require completion by the offeror or prospective contractor. This instruction also applies to provisions completed as annual representations and certifications.

    According to the FAR  Matrix (https://www.acquisition.gov/browse/index/far), FAR 52.212-1 – Instructions to Offerors – Commercial Items, is incorporated by reference (IBR) but FAR 52.212-2 – Evaluation – Commercial Items, is not.  Additionally, FAR 12.302(a) states that tailoring is permitted for FAR 52.212-1 but not for FAR 52.212-2.  It is allowed for FAR 52.212-1 ONLY to the extent it is necessary “to adopt to the market conditions for each acquisition consistent with customary commercial practices.”  FAR 12.302(d) states any tailoring shall be by addenda to the solicitation.  FAR 12.303 provides the format which must be followed where it states that the solicitation and contracts for the acquisition of commercial items shall be assembled to the maximum extent practicable using the following format:

    (e) Solicitation provisions-

    (1) 52.212-1, Instructions to Offerors-Commercial Items, by reference (see SF 1449, Block27 a);

    (2) Any addendum to 52.212-1;

    (3) 52.212-2, Evaluation-Commercial Items, or other description of evaluation factors for award, if used; and

    (4) 52.212-3, Offeror Representations and Certifications-Commercial Items.

    Therefore, both FAR 52.212-1 (IBR) and the addendum to FAR 52.212-1 need to be included TOGETHER in the solicitation.  However, since (3) says “FAR 52.212-2 OR other description of evaluation factors…”, you can use either FAR 52.212-2 in full text or your own description BUT NOT BOTH.

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