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  • Question

    Can 52.212-4 and 52.246-4 be incorporated in a contract? If so, does DCMA have a right to perform in process evaluations, audits, PQDR investigations and other surveillance?


    Answer

    A key to this question is FAR 12.208, which states: "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. Any in-process inspection by the Government shall be conducted in a manner consistent with commercial practice." This mandate prohibits the Government from imposing inspection requirements on the contractor if such requirements and the associated processes are not "consistent with commercial practice." FAR 12.301(a)(2) provides more support to the use of standard commercial practices and clauses for commercial item acquisition. It is natural that the Government would want to exercise strict quality assurance methods to ensure it gets exactly what it contracted for. However, FAR Part 12 was developed to promote the use of customary commercial practices, even if the Government isn't able to enjoy all the benefits of strict quality assurance measures. If exceptions to FAR Part 12 were routinely made, then it would become less relevant. Although the procuring activities would prefer additional quality inspections, the benefits of having FAR Part 12 (i.e., encourage more Industry participation in federal contracting) generally outweigh other considerations such as non-commercial quality procedures.

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