THANK YOU Vern and Linda for your helpful advice. This is a competitive negotiated acquisition and there is no question that what we would propose is a commercial item as defined in 12.001.

I intend to contact the Contracting Officer today to determine 1) whether she/he shares the contract specialist's interpretation and 2) if so, the basis for issuing what appears to be a solicitation that is contrary to the requirements of FAR 11.002 and FAR 12, which implement the government's preference and mandate that agencies encourage/permit offerors to supply commercial items.

I will let you know whether I am successful in my effort to get this solicitation modified to allow commercial items to be offered. Thanks, again.

By Linda Koone on Wednesday, August 2, 2000 - 08:29 am:

To add to Vern's comments, if this is a competitively negotiated acquisition, check for Alt II to FAR Clause 52.215-1. This provides direction on how to submit a proposal that departs from stated RFP requirements.

However, if your commercial item meets all of the requirements of the RFP, then you really aren't offering a product that departs from the stated requirements and you wouldn't need the flexibility that Alt II provides.

FAR 12.102(a)states:

'This part shall be used for the acquisition of supplies or services that meet the definition of commercial items at 2.101.'

Notice the word 'shall'. Clearly if your offer is selected for award and your item meets the definition of a commercial item, then the award has be made using FAR Part 12.

On the other hand, if this isn't a competitive environment, I suspect that your problem lies in differing opinions as to whether your item meets the definition of a commercial item.

In any case, if you aren't finding success in dealing with the contracting folks, a discussion with the technical/engineering folks may be helpful.

By Vern Edwards on Tuesday, August 1, 2000 - 04:59 pm:

FAR 11.002(a)(2)(ii) says that agencies must, "to the maximum extent practicable," define requirements in terms that enable and encourages offerors to supply commercial items in response to agency solicitations.

You say you spoke with the "Contract Specialist." Are you sure that the contracting officer shares the contract specialist's interpretation of the solicitation? If not, then ask to speak to the contracting officer and verify that he or she agrees with the contract specialist. If you are sure, then here are your options:

1. You can (tactfully) bring FAR 11.002(a)(2)(ii) to the contracting officer's attention and ask for a change of heart. (It may be that the agency has determined that no commercial item will meet its needs.)

2. If the contracting officer does not have a change of heart you can protest the terms of the solicitation to the GAO on the ground that it unjustifiably does not permit offerors to propose a commercial item.

3. You can verify submit a proposal that is fully responsive to the solicitation as interpreted by the contracting officer.

4. You can "no bid" the solicitation.

By L. Lee Orcutt on Tuesday, August 1, 2000 - 03:16 pm:

We would like to propose a commercial item in response to a government Negotiated RFP solicitation issued on Standard Form 33. We asked the government Contract Specialist whether an award issued in response to our proposal of a commercial item would be in accordance with FAR Part 12 and DFARS Part 212 and would be based on only the solicitation provisions, contract clauses and procedures for the acquisition of commercial items as prescribed therein. Her answer was "No. This acquisition will be negotiated in accordance with the Procedures at FAR Part 15."

I would appreciate hearing from anyone who has had a similar experience or who can give some useful advice. Thanks in advance.