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OFFICE OF THE UNDER SECRETARY OF DEFENSE
3000 DEFENSE PENTAGON
WASHINGTON, DC 20301-3000
ACQUISITION
AND SUSTAINMENT
In reply refer to
DARS Tracking Number: 2023-O0008
MEMORANDUM FOR COMMANDER, UNITED STATES CYBER
COMMAND (ATTN: ACQUISITION EXECUTIVE)
COMMANDER, UNITED STATES SPECIAL OPERATIONS
COMMAND (ATTN: ACQUISITION EXECUTIVE)
COMMANDER, UNITED STATES TRANSPORTATION
COMMAND (ATTN: ACQUISITION EXECUTIVE)
DEPUTY ASSISTANT SECRETARY OF THE ARMY
(PROCUREMENT)
DEPUTY ASSISTANT SECRETARY OF THE NAVY
(PROCUREMENT)
DEPUTY ASSISTANT SECRETARY OF THE AIR FORCE
(CONTRACTING)
DEFENSE AGENCY AND DOD FIELD ACTIVITY DIRECTORS
SUBJECT: Class Deviation—Commercial Products and Commercial Services Omnibus
Clause for Acquisitions Using the Procurement Desktop-Defense System
Effective October 1, 2023, this class deviation rescinds and supersedes Class Deviation
2018-O0021. When using the Procurement Desktop-Defense System (PD2) to contract for
commercial products or commercial services, contracting officers may deviate from the
requirements at Federal Acquisition Regulation (FAR) 12.301(b)(4) and the clause at FAR
52.212-5, Contract Terms and Conditions Required To Implement Statutes or Executive
Orders—Commercial Products and Commercial Services.
The clause at FAR 52.212-5 requires the contracting officer to “check a box” to identify
the clauses that are applicable to the specific acquisition of commercial products and commercial
services. Rather than requiring contracting officers to “check a box” to identify the clauses, PD2
has a clause logic capability that automatically selects the clauses under FAR clause 52.212-5.
Contracting officers may use the PD2 clause logic capability to automatically select the
clauses that are applicable to the specific solicitation and contract. Contracting officers shall
incorporate the attached deviation clause into these solicitations and contracts because the
deviation clause fulfills the statutory requirements on auditing and subcontract clauses applicable
to commercial products and commercial services. This deviation also authorizes adjustments to
the attached deviation clause required by future changes to the clause at FAR 52.212-5 that are
published in the FAR.
Class Deviation 2023-O0008
Commercial Products and Commercial Services Omnibus Clause for Acquisitions
Using the Procurement Desktop-Defense System
This class deviation remains in effect for three years, or until otherwise rescinded. My
point of contact is Mr. Jay Olson who may be reached at jay.c.olson6.civ@mail.mil.
John M. Tenaglia
Principal Director,
Defense Pricing and Contracting
Attachment:
As stated
2
Attachment
Class Deviation 2023-O0008
Commercial Products and Commercial Services Omnibus Clause for Acquisitions
Using the Procurement Desktop-Defense System
Changes are indicated by a change bar in the right-hand margin.
FAR 52.212-5 Contract Terms and Conditions Required To Implement Statutes or
Executive Orders—Commercial Products and Commercial Services (DEVIATION 2023-
O0008)
In lieu of the clause at FAR 52.212-5, use the following clause in solicitations and contracts
when utilizing FAR part 12 procedures for the acquisition of commercial products and
commercial services and the clause logic capability available in the Standard Procurement
System.
CONTRACT TERMS AND CONDITIONS REQUIRED TO IMPLEMENT STATUTES OR
EXECUTIVE ORDERS—COMMERCIAL PRODUCTS AND COMMERCIAL SERVICES
(DEVIATION 2023-O0008) (OCT 2023)
(a) Comptroller General Examination of Record. The Contractor shall comply with the
provisions of this paragraph (a) if this contract was awarded using other than sealed bid, is in
excess of the simplified acquisition threshold, as defined in FAR 2.101, on the date of award of
this contract, and does not contain the clause at 52.215-2, Audit and Records—Negotiation.
(1) The Comptroller General of the United States, or an authorized representative of the
Comptroller General, shall have access to and right to examine any of the Contractor’s directly
pertinent records involving transactions related to this contract.
(2) The Contractor shall make available at its offices at all reasonable times the records,
materials, and other evidence for examination, audit, or reproduction, until 3 years after final
payment under this contract or for any shorter period specified in FAR Subpart 4.7, Contractor
Records Retention, of the other clauses of this contract. If this contract is completely or partially
terminated, the records relating to the work terminated shall be made available for 3 years after
any resulting final termination settlement. Records relating to appeals under the disputes clause
or to litigation or the settlement of claims arising under or relating to this contract shall be made
available until such appeals, litigation, or claims are finally resolved.
(3) As used in this clause, records include books, documents, accounting procedures and
practices, and other data, regardless of type and regardless of form. This does not require the
Contractor to create or maintain any record that the Contractor does not maintain in the ordinary
course of business or pursuant to a provision of law.
(b)(1) Notwithstanding the requirements of any other clauses of this contract, the Contractor
is not required to flow down any FAR clause, other than those in this paragraph (b)(1) in a
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Attachment
Class Deviation 2023-O0008
Commercial Products and Commercial Services Omnibus Clause for Acquisitions
Using the Procurement Desktop-Defense System
Changes are indicated by a change bar in the right-hand margin.
subcontract for commercial products or commercial services. Unless otherwise indicated below,
the extent of the flow down shall be as required by the clause—
(i) 52.203-13, Contractor Code of Business Ethics and Conduct (NOV 2021) (41
U.S.C. 3509).
(ii) 52.203-19, Prohibition on Requiring Certain Internal Confidentiality Agreements
or Statements (JAN 2017) (section 743 of Division E, Title VII, of the Consolidated and Further
Continuing Appropriations Act, 2015 (Pub. L. 113-235) and its successor provisions in
subsequent appropriations acts (and as extended in continuing resolutions)).
(iii) 52.204-23, Prohibition on Contracting for Hardware, Software, and Services
Developed or Provided by Kaspersky Lab and Other Covered Entities (NOV 2021) (Section
1634 of Pub. L. 115-91).
(iv) 52.204–25, Prohibition on Contracting for Certain Telecommunications and
Video Surveillance Services or Equipment. (NOV 2021) (Section 889(a)(1)(A) of Pub. L. 115–
232).
(v) 52.204–27, Prohibition on a ByteDance Covered Application (JUN 2023) (Section
102 of Division R of Pub. L. 117–328).
(vi) 52.219-8, Utilization of Small Business Concerns (SEP 2023) (15 U.S.C.
637(d)(2) and (3)), in all subcontracts that offer further subcontracting opportunities. If the
subcontract (except subcontracts to small business concerns) exceeds the applicable threshold
specified in FAR 19.702(a) on the date of subcontract award, the subcontractor must include
52.219-8 in lower tier subcontracts that offer subcontracting opportunities.
(vii) 52.222-21, Prohibition of Segregated Facilities (APR 2015).
(viii) 52.222-26, Equal Opportunity (SEP 2016) (E.O. 11246).
(ix) 52.222-35, Equal Opportunity for Veterans (JUN 2020) (38 U.S.C. 4212).
(x) 52.222-36, Equal Opportunity for Workers with Disabilities (JUN 2020) (29
U.S.C. 793).
(xi) 52.222-37, Employment Reports on Veterans (JUN 2020) (38 U.S.C. 4212).
(xii) 52.222-40, Notification of Employee Rights Under the National Labor Relations
Act (DEC 2010) (E.O. 13496). Flow down required in accordance with paragraph (f) of FAR
clause 52.222-40.
(xiii) 52.222-41, Service Contract Labor Standards (AUG 2018) (41 U.S.C. chapter
67).
(xiv)__(A) 52.222-50, Combating Trafficking in Persons (NOV 2021) (22 U.S.C.
chapter 78 and E.O. 13627).
__(B) Alternate I (Mar 2015) of 52.222-50 (22 U.S.C. chapter 78 and E.O. 13627).
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Attachment
Class Deviation 2023-O0008
Commercial Products and Commercial Services Omnibus Clause for Acquisitions
Using the Procurement Desktop-Defense System
Changes are indicated by a change bar in the right-hand margin.
(xv) 52.222-51, Exemption from Application of the Service Contract Act to Contracts
for Maintenance, Calibration, or Repair of Certain Equipment-Requirements (MAY 2014) (41
U.S.C. chapter 67).
(xvi) 52.222-53, Exemption from Application of the Service Contract Act to
Contracts for Certain Services-Requirements (MAY 2014) (41 U.S.C. chapter 67).
(xvii) 52.222-54, Employment Eligibility Verification (MAY 2022) (E.O. 12989).
(xviii) 52.222-55, Minimum Wages for Contractor Workers Under Executive Order
14026 (JAN 2022).
(xix) 52.222-62 Paid Sick Leave Under Executive Order 13706 (JAN 2022) (E.O.
13706).
(xx)(A) 52.224-3, Privacy Training (JAN 2017) (5 U.S.C. 552a).
(B) Alternate I (JAN 2017) of 52.224-3.
(xxi) 52.225-26, Contractors Performing Private Security Functions Outside the
United States (OCT 2016) (Section 862, as amended, of the National Defense Authorization Act
for Fiscal Year 2008; 10 U.S.C. Subtitle A, Part V, Subpart G Note).
(xxii) 52.226-6, Promoting Excess Food Donation to Nonprofit Organizations (JUN
2020) (42 U.S.C. 1792). Flow down required in accordance with paragraph (e) of FAR clause
52.226-6.
(xxiii) 52.232–40, Providing Accelerated Payments to Small Business Subcontractors
(MAR 2023) (31 U.S.C. 3903 and 10 U.S.C. 3801). Flow down required in accordance with
paragraph (c) of 52.232–40.
(xxiv) 52.247–64, Preference for Privately Owned U.S.-Flag Commercial Vessels
(NOV 2021) (46 U.S.C. 55305 and 10 U.S.C. 2631). Flow down required in accordance with
paragraph (d) of FAR clause 52.247–64.
(2) While not required, the Contractor may include in its subcontracts for commercial
products and commercial services a minimal number of additional clauses necessary to satisfy its
contractual obligations.
(End of clause)
Alternate I (2023-OZZZZ) (OCT 2023). As prescribed in 12.301(b)(4)(i), delete paragraph (a)
from the basic deviation clause, redesignate paragraph (b)(1) as paragraph (a), and redesignate
paragraphs (b)(1)(i) through (b)(1)(xxiv) as paragraphs (a)(1) through (a)(24) and redesignate
paragraph (b)(2) as paragraph (b).
Alternate II (2023-OZZZZ) (OCT 2023). As prescribed in 12.301(b)(4)(ii), substitute the
following paragraphs (a)(1) and (b)(1) for paragraphs (a)(1) and (b)(1) of the basic deviation
clause as follows:
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Attachment
Class Deviation 2023-O0008
Commercial Products and Commercial Services Omnibus Clause for Acquisitions
Using the Procurement Desktop-Defense System
Changes are indicated by a change bar in the right-hand margin.
(a)(1) The Comptroller General of the United States, an appropriate Inspector General
appointed under section 3 or 8G of the Inspector General Act of 1978 (5 U.S.C. App.), or an
authorized representative of either of the foregoing officials shall have access to and right to—
(i) Examine any of the Contractor’s or any subcontractors’ records that pertain to,
and involve transactions relating to, this contract; and
(ii) Interview any officer or employee regarding such transactions.
(b)(1) Notwithstanding the requirements of any other clause in this contract, the Contractor
is not required to flow down any FAR clause in a subcontract for commercial products or
commercial services, other than—
(i) Paragraph (a) of this clause. This paragraph flows down to all subcontracts, except
the authority of the Inspector General under paragraph (a)(1)(ii) does not flow down; and
(ii) Those clauses listed in this paragraph (b)(1). Unless otherwise indicated below,
the extent of the flow down shall be as required by the clause—
(A) 52.203-13, Contractor Code of Business Ethics and Conduct (NOV 2021)(41
U.S.C. 3509).
(B) 52.203-15, Whistleblower Protections Under the American Recovery and
Reinvestment Act of 2009 (JUN 2010) (Section 1553 of Pub. L. 111-5).
(C) 52.204-23, Prohibition on Contracting for Hardware, Software, and Services
Developed or Provided by Kaspersky Lab and Other Covered Entities (NOV 2021)(Section
1634 of Pub. L. 115-91).
(D) 52.204–25, Prohibition on Contracting for Certain Telecommunications and
Video Surveillance Services or Equipment. (NOV 2021) (Section 889(a)(1)(A) of Pub. L. 115–
232).
(E) 52.204–27, Prohibition on a ByteDance Covered Application (JUN 2023)
(Section 102 of Division R of Pub. L. 117–328).
(F) 52.219-8, Utilization of Small Business Concerns (SEP 2023) (15 U.S.C.
637(d)(2) and (3)), in all subcontracts that offer further subcontracting opportunities. If the
subcontract (except subcontracts to small business concerns) exceeds the applicable threshold
specified in FAR 19.702(a) on the date of subcontract award, the subcontractor must include
52.219–8 in lower tier subcontracts that offer subcontracting opportunities.
(G) 52.222-21, Prohibition on Segregated Facilities (APR 2015)
(H) 52.222-26, Equal Opportunity (SEP 2016) (E.O. 11246).
(I) 52.222-35, Equal Opportunity for Veterans (JUN 2020) (38 U.S.C. 4212).
(J) 52.222-36, Equal Opportunity for Workers with Disabilities (JUN 2020) (29
U.S.C. 793).
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Attachment
Class Deviation 2023-O0008
Commercial Products and Commercial Services Omnibus Clause for Acquisitions
Using the Procurement Desktop-Defense System
Changes are indicated by a change bar in the right-hand margin.
(K) 52.222-40, Notification of Employee Rights Under the National Labor Relations
Act (DEC 2010) (E.O. 13496). Flow down required in accordance with paragraph (f) of FAR
clause 52.222-40.
(L) 52.222-41, Service Contract Labor Standards (AUG 2018) (41 U.S.C. Chapter
67).
(M)__(1) 52.222-50, Combating Trafficking in Persons (NOV 2021) (22 U.S.C.
Chapter 78 and E.O. 13627).
__(2) Alternate I (MAR 2015) of 52.222-50 (22 U.S.C. Chapter 78 and E.O. 13627).
(N) 52.222-51, Exemption from Application of the Service Contract Labor Standards
to Contracts for Maintenance, Calibration, or Repair of Certain Equipment—Requirements
(MAY 2014) (41 U.S.C. Chapter 67).
(O) 52.222-53, Exemption from Application of the Service Contract Labor Standards
to Contracts for Certain Services—Requirements (MAY 2014) (41 U.S.C. chapter 67).
(P) 52.222-54, Employment Eligibility Verification (MAY 2022)(E.O. 12989).
(Q) 52.222-55, Minimum Wages Under Executive Order 13658 (JAN 2022).
(R) 52.222-62, Paid Sick Leave Under Executive Order 13706 (JAN 2022)(E.O.
13706).
(S)__(1) 52.224-3, Privacy Training (JAN 2017)(5 U.S.C. 552a).
__(2) Alternate I (Jan 2017) of 52.224-3.
(T) 52.225-26, Contractors Performing Private Security Functions Outside the United
States (OCT 2016)(Section 862, as amended, of the National Defense Authorization Act for
Fiscal Year 2008; 10 U.S.C. Subtitle A, Part V, Subpart G Note).
(U) 52.226-6, Promoting Excess Food Donation to Nonprofit Organizations. (JUN
2020) (42 U.S.C. 1792). Flow down required in accordance with paragraph (e) of FAR clause
52.226-6.
(V) 52.232–40, Providing Accelerated Payments to Small Business Subcontractors
(MAR 2023) (31 U.S.C. 3903 and 10 U.S.C. 3801). Flow down required in accordance with
paragraph (c) of 52.232–40.
(W) 52.247–64, Preference for Privately Owned U.S.-Flag Commercial Vessels
(NOV 2021) (46 U.S.C. 55305 and 10 U.S.C. 2631). Flow down required in accordance with
paragraph (d) of FAR clause 52.247–64.
(End of clause)
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