Definition[ edit ] Marketing is defined by the American Marketing Association as "the activity, set of institutions, and processes for creating, communicating, delivering, and exchanging offerings that have value for customers, clients, partners, and society at large. From a sales process engineering perspective, marketing is "a set of processes that are interconnected and interdependent with other functions" of a business aimed at achieving customer interest and satisfaction.
This part prescribes policies and procedures unique to the acquisition of commercial items.
Dod component see Deviation below 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 items.
Effective August 31, Commercially available off-the-shelf COTS items are defined in 2. Unless indicated otherwise, all of the policies that apply to commercial items also apply to COTS items. This subpart identifies special requirements for the acquisition of commercial items intended to more closely resemble those customarily used in the commercial marketplace, as well as other considerations necessary for proper planning, solicitation, evaluation and award of contracts for commercial items.
Contracting officers shall use the policies unique to the acquisition of commercial items prescribed 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.
The contracting officer may use the streamlined procedure for soliciting offers for commercial items prescribed in Use of the SF is nonmandatory but encouraged for commercial acquisitions not exceeding the simplified acquisition threshold. If adequate, contracting officers shall request existing description of the product in a business plan literature from offerors of commercial items in lieu of unique technical proposals.
The contracting officer shall evaluate each product as a separate offer. Past performance should be an important element of every evaluation and contract award for commercial items.
Contracting officers should consider past performance data from a wide variety of sources both inside and outside the Federal Government in accordance with the policies and procedures contained in Subpart 9. Placement of orders shall be in accordance with Subpart 8. Placement of orders shall be in accordance with Subpart Any in-process inspection by the Government shall be conducted in a manner consistent with commercial practice.
While the contracting officer must establish price reasonableness in accordance with Customary market practice for some commercial items may include buyer contract financing. The contracting officer may offer Government financing in accordance with the policies and procedures in Part Except as provided by agency-specific statutes, the Government shall acquire only the technical data and the rights in that data customarily provided to the public with a commercial item or process.
The contracting officer shall presume that data delivered under a contract for commercial items was developed exclusively at private expense. When a contract for commercial items requires the delivery of technical data, the contracting officer shall include appropriate provisions and clauses delineating the rights in the technical data in addenda to the solicitation and contract see Part 27 or agency FAR supplements.
Generally, offerors and contractors shall not be required to -- 1 Furnish technical information related to commercial computer software or commercial computer software documentation that is not customarily provided to the public; or 2 Relinquish to, or otherwise provide, the Government rights to use, modify, reproduce, release, perform, display, or disclose commercial computer software or commercial computer software documentation except as mutually agreed to by the parties.
For additional guidance regarding the use and negotiation of license agreements for commercial computer software, see It is a common practice in the commercial marketplace for both the buyer and seller to propose terms and conditions written from their particular perspectives.
The terms and conditions prescribed in this part seek to balance the interests of both the buyer and seller. These terms and conditions are generally appropriate for use in a wide range of acquisitions. However, market research may indicate other commercial practices that are appropriate for the acquisition of the particular item.
These practices should be considered for incorporation into the solicitation and contract if the contracting officer determines them appropriate in concluding a business arrangement satisfactory to both parties and not otherwise precluded by law or Executive order.
When CAS applies, the contracting officer shall insert the appropriate provisions and clauses as prescribed in Many supplies or services are acquired subject to supplier license agreements.
These are particularly common in information technology acquisitions, but they may apply to any supply or service.
For example, computer software and services delivered through the internet web services are often subject to license agreements, referred to as End User License Agreements EULATerms of Service TOSor other similar legal instruments or agreements. Many of these agreements contain indemnification clauses that are inconsistent with Federal law and unenforceable, but which could create a violation of the Anti-Deficiency Act 31 U.
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