E. Applicability in FAR 52.212-5 and FAR 52.213-4

Comment: One respondent requested that both parentheticals indicating applicability be removed from the listing of the clause 52.209-6 in FAR 52.212-5 (commercial items) and 52.213-4 (simplified acquisition). The rationale of the respondent is that the directives are not complete and are not used in most clauses contained in these clauses. In addition, the respondent states that FAR 52.209-6 already states when the clause is applicable and applicability to subcontracts is covered in FAR 52.209-6(e).

Response: With regard to FAR 52.212-5, the contracting officer indicates if the clause applies to the acquisition of commercial items. The respondent is correct that no parenthetical indication of applicability is appropriate, unless the clause is applicable to the acquisition of commercial items, but is not applicable to the acquisition of COTS items (e.g., FAR 52.223-9, Estimate of Percentage of Recovered Material). However, indication of inapplicability to subcontracts for COTS items is not appropriate. That is covered in the FAR clause itself, once it is decided that the clause is applicable to the prime contract. The Councils have removed both parentheticals from the listing of FAR 52.209-6 in the FAR clause 52.212-5 in the final rule.

However, with regard to the FAR clause 52.213-4, the Councils do not agree that there should be no parenthetical indication of applicability for the listed clauses. Unless the clause is required in all contracts, each of the clauses listed in paragraph (b) of FAR 52.213-4 indicates applicability parenthetically. However, this indication of applicability should be to the prime contract, not the subcontract. Therefore, the statement of inapplicability to subcontracts for the acquisition of COTS items has been deleted from the final rule.