FAR 12.301—Solicitation provisions and contract clauses for the acquisition of commercial products and commercial services.
Plain-English Summary
FAR 12.301 sets the baseline rule for what solicitation provisions and contract clauses may be used when buying commercial products and commercial services. Its purpose is to keep commercial-item acquisitions as streamlined as possible, consistent with 41 U.S.C. 3307, by limiting clauses to those required by law or executive order or those consistent with customary commercial practice. The section identifies the core commercial-item provisions and clauses that must be used: 52.212-1, Instructions to Offerors—Commercial Products and Commercial Services; 52.212-3, Offeror Representations and Certifications—Commercial Products and Commercial Services; 52.212-4, Contract Terms and Conditions—Commercial Products and Commercial Services; and 52.212-5, Contract Terms and Conditions Required to Implement Statutes or Executive Orders—Commercial Products and Commercial Services. It also explains when evaluation provisions may be added, how other FAR-required provisions and clauses still apply in commercial buys, and which commercial-item clauses may not be tailored. In practice, this section is the central roadmap for drafting commercial solicitations and awards: it tells contracting officers what must be included, what may be tailored, what alternates apply, and how to avoid overloading commercial acquisitions with noncommercial terms.
Key Rules
Use only limited clauses
Commercial product and commercial service contracts should include only clauses required by law or executive order, or clauses consistent with customary commercial practice. This is the core policy behind the streamlined commercial-item approach.
Always include the core commercial provisions
Solicitations must include 52.212-1 and 52.212-3, and solicitations and contracts must include 52.212-4 and 52.212-5. These are the standard commercial-item provisions and clauses used to structure the acquisition.
Tailoring is tightly controlled
The contracting officer may tailor 52.212-1 and 52.212-4 under FAR 12.302, but 52.212-3 may not be tailored except as allowed by subpart 1.4, and 52.212-5 may not be tailored. This preserves the standardized commercial framework.
Use the correct alternates
52.212-3 Alternate I is used for DoD, NASA, and the Coast Guard. 52.212-4 Alternate I is used for time-and-materials or labor-hour contracts. 52.212-5 Alternate I applies when the head of agency waives Comptroller General access, and Alternate II applies when ARRA funds are used.
Evaluation terms may be added when needed
If evaluation factors are appropriate, the contracting officer may use 52.212-2 or a similar evaluation provision that includes all required evaluation factors under the applicable acquisition method. This allows commercial solicitations to address source selection without abandoning the streamlined format.
Other FAR clauses still apply when prescribed
Notwithstanding other FAR prescriptions, only the provisions and clauses prescribed in FAR Part 12 are required for commercial acquisitions, but certain other clauses specifically listed in 12.301(d) must still be inserted, such as SAM registration, CAGE code reporting and maintenance, safeguarding covered contractor information systems, and telecommunications/video surveillance representations.
Fill-ins and addenda must be completed correctly
Some clauses require fill-in language, which must be inserted as directed by FAR 52.104(d). When cost information is obtained under Part 15 to determine price reasonableness, the related clauses must be added in an addendum to the solicitation and contract.
Responsibilities
Contracting Officer
Select and include the required commercial-item provisions and clauses, choose the correct alternates, tailor only where FAR 12.302 permits, and ensure any required fill-ins or addenda are completed accurately. The contracting officer must also determine whether evaluation factors are needed and whether any additional FAR Part 12-prescribed clauses apply to the acquisition.
Offeror/Contractor
Review and complete the required representations and certifications in 52.212-3, comply with the contract terms in 52.212-4 and the applicable statutory or executive-order clauses in 52.212-5, and respond to any evaluation instructions or tailored solicitation requirements included under the commercial-item framework.
Agency/Head of Agency
Where applicable, approve or waive specific statutory requirements such as Comptroller General access under the conditions referenced in 52.212-5 Alternate I. The agency also must ensure its commercial-item acquisition practices align with the statutory and regulatory limits on clause use.
Acquisition/Procurement Staff
Support accurate solicitation drafting, verify that the correct commercial-item clauses and alternates are used, and ensure clause prescriptions, attachments, and addenda are consistent with the acquisition strategy and funding source.
Practical Implications
Commercial buys are not blank-slate solicitations; they have a standard clause set that must be used unless FAR specifically allows tailoring. Missing or misusing one of the core clauses can create compliance problems and delay award.
The biggest drafting risk is over-inserting noncommercial clauses or tailoring clauses that cannot be tailored. FAR 12.301 is designed to prevent commercial acquisitions from becoming full FAR Part 15-style solicitations unless truly necessary.
Alternate selection matters. Using the wrong alternate for DoD/NASA/Coast Guard, time-and-materials or labor-hour work, waived audit access, or ARRA-funded actions can make the solicitation or contract incorrect.
Some requirements still come from outside Part 12, so contracting officers must cross-check related FAR parts for prescribed provisions like SAM registration, CAGE code reporting, cybersecurity safeguarding, and telecom/video surveillance representations.
When price reasonableness is supported with cost information under Part 15, the related clauses must be added in an addendum. Forgetting this step can leave the solicitation incomplete and create post-award disputes about the basis for pricing information.
Official Regulatory Text
(a) In accordance with 41 U.S.C. 3307, contracts for the acquisition of commercial products or commercial services shall, to the maximum extent practicable, include only those clauses— (1) Required to implement provisions of law or executive orders applicable to the acquisition of commercial products or commercial services; or (2) Determined to be consistent with customary commercial practice. (b) Insert the following provisions in solicitations for the acquisition of commercial products or commercial services, and clauses in solicitations and contracts for the acquisition of commercial products or commercial services: (1) The provision at 52.212-1 , Instructions to Offerors-Commercial Products and Commercial Services. This provision provides a single, streamlined set of instructions to be used when soliciting offers for commercial products or commercial services and is incorporated in the solicitation by reference (see Block 27 a, SF 1449 ). The contracting officer may tailor these instructions or provide additional instructions tailored to the specific acquisition in accordance with 12.302 . (2) The provision at 52.212-3 , Offeror Representations and Certifications-Commercial Products and Commercial Services . This provision provides a single, consolidated list of representations and certifications for the acquisition of commercial products or commercial services and is attached to the solicitation for offerors to complete. This provision may not be tailored except in accordance with subpart 1.4 . Use the provision with its Alternate I in solicitations issued by DoD, NASA, or the Coast Guard. (3) The clause at 52.212-4 , Contract Terms and Conditions-Commercial Products and Commercial Services.. This clause includes terms and conditions which are, to the maximum extent practicable, consistent with customary commercial practices and is incorporated in the solicitation and contract by reference (see Block 27, SF 1449 ). Use this clause with its Alternate I when a time-and-materials or labor-hour contract will be awarded. The contracting officer may tailor this clause in accordance with 12.302 . (4) The clause at 52.212-5 , Contract Terms and Conditions Required to Implement Statutes or Executive Orders-Commercial Products and Commercial Services . This clause incorporates by reference only those clauses required to implement provisions of law or Executive orders applicable to the acquisition of commercial products or commercial services. The contracting officer shall attach this clause to the solicitation and contract and, using the appropriate clause prescriptions, indicate which, if any, of the additional clauses cited in 52.212-5 (b) or (c) are applicable to the specific acquisition. Some of the clauses require fill-in; the fill-in language should be inserted as directed by 52.104 (d). When cost information is obtained pursuant to part 15 to establish the reasonableness of prices for commercial products or commercial services, the contracting officer shall insert the clauses prescribed for this purpose in an addendum to the solicitation and contract. This clause may not be tailored. (i) Use the clause with its Alternate I when the head of the agency has waived the examination of records by the Comptroller General in accordance with 25.1001 . (ii) (A) If the acquisition will use funds appropriated or otherwise made available by the American Recovery and Reinvestment Act of 2009 (Pub. L. 111-5), the contracting officer shall use the clause with its Alternate II. (B) (1) In the case of a bilateral contract modification that will use funds appropriated or otherwise made available by the American Recovery and Reinvestment Act of 2009, the contracting officer shall specify applicability of Alternate II to that modification. (2) In the case of a task- or delivery-order contract in which not all orders will use funds appropriated or otherwise made available by the American Recovery and Reinvestment Act of 2009, the contracting officer shall specify the task or delivery orders to which Alternate II applies. (C) The contracting officer may not use Alternate I when Alternate II applies. (c) When the use of evaluation factors is appropriate, the contracting officer may— (1) Insert the provision at 52.212-2 , Evaluation-Commercial Products and Commercial Services, in solicitations for commercial products or commercial services (see 12.602 ); or (2) Include a similar provision containing all evaluation factors required by 13.106 , subpart 14.2 or subpart 15.3 , as an addendum (see 12.302 (d)). (d) Other required provisions and clauses. Notwithstanding prescriptions contained elsewhere in the FAR, when acquiring commercial products or commercial services, contracting officers shall be required to use only those provisions and clauses prescribed in this part. The provisions and clauses prescribed in this part shall be revised, as necessary, to reflect the applicability of statutes and executive orders to the acquisition of commercial products or commercial services. (1) Insert the provision at 52.204-7 , System for Award Management, as prescribed in 4.1105 (a). (2) Insert the clause at 52.204-13 , System for Award Management Maintenance, as prescribed in 4.1105 (b). (3) Insert the provision at 52.204-16 , Commercial and Government Entity Code Reporting, as prescribed in 4.1804 (a). (4) Insert the clause at 52.204-18 , Commercial and Government Entity Code Maintenance, as prescribed in 4.1804 (c). (5) Insert the clause at 52.204-21 , Basic Safeguarding of Covered Contractor Information Systems, in solicitations and contracts (except for acquisitions of COTS items), as prescribed in 4.1903 . (6) Insert the provision at 52.204-24 , Representation Regarding Certain Telecommunications and Video Surveillance Services or Equipment, as prescribed in 4.2105 (a). (7) Insert the provision at 52.207-6 , Solicitation of Offers from Small Business Concerns and Small Business Teaming Arrangements or Joint Ventures (Multiple-Award Contracts), as prescribed at 7.107-6 . (8) Insert the provision at 52.209-7 , Information Regarding Responsibility Matters, as prescribed in 9.104-7 (b). (9) Insert the provision at 52.209-12 , Certification Regarding Tax Matters, as prescribed at 9.104-7 (e). (10) Insert the provision at 52.222-56 , Certification Regarding Trafficking in Persons Compliance Plan, in solicitations as prescribed at 22.1705 (b). (11) Insert the clause at 52.225-19 , Contractor Personnel in a Designated Operational Area or Supporting a Diplomatic or Consular Mission outside the United States, as prescribed in 25.301-4 . (12) Insert the provision at 52.229-11 , Tax on Certain Foreign Procurements—Notice and Representation, in solicitations as prescribed in 29.402-3 (a). The representation in the provision at 52.229-11 is not in the System for Award Management. (13) Insert the clause at 52.229-13 , Taxes—Foreign Contracts in Afghanistan, as prescribed in 29.402-4 (a). (14) Insert the clause at 52.229-14 , Taxes—Foreign Contracts in Afghanistan (North Atlantic Treaty Organization Status of Forces Agreement), as prescribed in 29.402-4 (b). (e) Discretionary use of FAR provisions and clauses. The contracting officer may include in solicitations and contracts by addendum other FAR provisions and clauses when their use is consistent with the limitations contained in 12.302 . For example: (1) The contracting officer may use the provision at 52.201-1 , Acquisition 360: Voluntary Survey, as prescribed in 1.102-3 (b). (2) The contracting officer may include appropriate clauses when an indefinite-delivery type of contract will be used. The clauses prescribed at 16.506 may be used for this purpose. (3) The contracting officer may include appropriate provisions and clauses when the use of options is in the Government’s interest. The provisions and clauses prescribed in 17.208 may be used for this purpose. If the provision at 52.212-2 is used, paragraph (b) provides for the evaluation of options. (4) The contracting officer may use the provisions and clauses contained in part 23 regarding the use of products containing recovered materials and biobased products when appropriate for the item being acquired. (5) When setting aside under the Stafford Act ( subpart 26.2 ), include the provision at 52.226-3 , Disaster or Emergency Area Representation, in the solicitation. The representation in this provision is not in the System for Award Management. (f) Agencies may supplement the provisions and clauses prescribed in this part (to require use of additional provisions and clauses) only as necessary to reflect agency unique statutes applicable to the acquisition of commercial products or commercial services or as may be approved by the agency senior procurement executive, or the individual responsible for representing the agency on the FAR Council, without power of delegation.