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No Preferential T&C's Mods Allowed for Commercial Item Buys


In Diebold, Inc. (June 2, 2011), GAO sustained a protest when the Comptroller of the Currency had substituted new terms and conditions beneficial to the awardee into a commercial items contract that were not part of the underlying solicitation. While GAO agreed that FAR ยง 12.302(a) gives an agency discretion to tailor the terms of FAR Clause 52.212-4 to the market practices and conditions for a particular commercial item acquisition, it instructed that all offerors must compete on a common basis against the agency's true needs and so "tailoring" of the terms must occur prior to the submission of final proposals.

For more information, please contact the professional(s) listed below, or your regular Crowell & Moring contact.

James G. Peyster
Counsel – Washington, D.C.
Phone: +1 202.624.2603