Customary_Commercial_Practices_Research.pdf

Request For Information (RFI)

Customary Commercial Practices

Summary:

This is a RFI for information in regards to what the Customary Commercial Practices for the general headings indicated below (e.g. Software, Supplies, and Services) and is for market research by the Contract Specialist/Officer (not the Agency/Commission). Please review the following general areas and respond by including information (Terms & Conditions, Clauses, etc.) that describe customary practices within that area of the commercial market. Please give the perspective from both the Seller and the Buyer (if applicable).

Assumptions:

1. Customary Commercial Practices would generally include the freedom of contract and commercial practices can vary greatly.

2. Customary Commercial Practices vary depending on location.

a. Local;

b. Nationwide; and

c. International practices.

3. Customary Commercial Practices may be indicated in the Restatement, Second and the UCC.

General areas:

1.) Software

a. Purchasing additional quantities of the product.

b. Software Updates (Maintenance).

c. Software Upgrades.

d. Proxy with the OEM/Publisher.

e. Co-terming and prorating additional quantities.

f. Purchasing similar related software programs. How are contracts structured to accommodate purchasing of other products offered by the same Vendor?

g. Unilateral Options?

i. How are Options structured?

ii. Can Options be changed after they have been established?

iii. Can quantities be increased/decreased inside of an Option?

iv. Can a Period of Performance (PoP) be skipped and the other established Options be exercised during their PoP?

h. Please list any areas where the Government could do as the commercial market does.

2.) Supplies

a. In general, please list any customary commercial practices that Vendor’s use when not contracting with the Government.

b. Specifically,

i. Options. What’s the possibilities when using Options (term and for quantities). Meaning, how does the commercial market structure contracts to allow for additional quantities to be purchased that weren’t anticipated at the time of the initial purchase?

1. For the same price and for further negotiated items.

ii. Options – Right to Exercise. What’s the commercial practice with skipping/not exercising an Option, but exercising a subsequent Option (this also applies to Services).

1. Meaning, let’s say that there’s a contract for a Base Period and 1-4 Option Periods. It’s written in the contract that Options are independent of each other and this can be done. Option Period 1 is not exercised, but Option Period 2 is exercised. Is this within customary practices?

Also, is there any issue with creating a clause where even if the Option isn’t exercised, that the “Option” could be “exercised” bilaterally? Meaning, the provision would make the Option periods independent/distinct from each other.

iii. Additional Quantities. While Options give the party a unilateral right to purchase additional quantities at stated prices, we would like to know how the market structures a contract to order additional quantities without the use of Options.

1. FYI – It’s anticipated that the common practice is that the Buyer and Seller will merely negotiate with each other until an agreement is reached. But, for market research purposes this needs to be asked.

iv. Additional Quantities – PoP. In the commercial market, is there any practice where the ordering period is limited to a particular time period?

v. Hardware. Is there a method/practice to get upgrades to hardware (IT or otherwise)?

vi. Standing Quotations. Is there any issue with allowing a quote to “Stand” for a period of time. The time could be from 3-6 months.

1. Or, allowing the Vendor’s who responded to the request, update their quotes and limit the competition to those “interested” Vendors?

vii. Firm Offer. Under the UCC, a quote from the Vendor can be a Firm Offer. Is this the customary practice?

3.) Services

a. Please list any customary commercial practices that are available in the commercial market that the government doesn’t currently (in general) utilize?

If there’s any other general areas not covered (besides construction) please feel free to elaborate on how or what other practices could be implemented to allow the government to get in line with the commercial market place.

Please keep in mind that information will be reviewed and considered, there are Regulation/Statute limitations that may limit implementation. Thanks.