48 C.F.R. § 10.002

10.002 Procedures.

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(a) Acquisitions begin with a description of the Government's needs stated in terms sufficient to allow conduct of market research.

(b) Market research is then conducted to determine if commercial products, commercial services, or nondevelopmental items are available to meet the Government's needs or could be modified to meet the Government's needs.

(1) The extent of market research will vary, depending on such factors as urgency, estimated dollar value, complexity, and past experience. The contracting officer may use market research conducted within 18 months before the award of any task or delivery order if the information is still current, accurate, and relevant. Market research involves obtaining information specific to the product or service being acquired and should include—

(i) Whether the Government's needs can be met by—

(A) Products or services of a type customarily available in the commercial marketplace;

(B) Products or services of a type customarily available in the commercial marketplace with modifications; or

(ii) Customary practices regarding customizing, modifying or tailoring of products of services to meet customer needs and associated costs;

(iii) Customary practices, including warranty, buyer financing, discounts, contract type considering the nature and risk associated with the requirement, etc., under which commercial sales of the products or services are made;

(iv) The requirements of any laws and regulations unique to the item being acquired;

(v) The availability of items that contain recovered materials and items that are energy efficient;

(vi) The distribution and support capabilities of potential suppliers, including alternative arrangements and cost estimates; and

(vii) Whether the Government's needs can be met by small business concerns that will likely submit a competitive offer at fair market prices (see part 19).

(2) Techniques for conducting market research may include any or all of the following:

(i) Contacting knowledgeable individuals in Government and industry regarding market capabilities to meet requirements.

(ii) Reviewing the results of recent market research undertaken to meet similar or identical requirements.

(iii) Publishing formal requests for information in appropriate technical or scientific journals or business publications.

(iv) Querying the Governmentwide database of contracts and other procurement instruments intended for use by multiple agencies available at https://www.contractdirectory.gov/contractdirectory/ and other Government and commercial databases that provide information relevant to agency acquisitions.

(v) Participating in interactive, on-line communication among industry, acquisition personnel, and customers.

(vi) Obtaining source lists of similar items from other contracting activities or agencies, trade associations or other sources.

(vii) Reviewing catalogs and other generally available product literature published by manufacturers, distributors, and dealers or available on-line.

(viii) Conducting interchange meetings or holding presolicitation conferences to involve potential offerors early in the acquisition process.

(ix) Reviewing systems such as the System for Award Management, the Federal Procurement Data System, and the Small Business Administration's Dynamic Small Business Search.

(c) If market research indicates commercial products, commercial services, or nondevelopmental items might not be available to satisfy agency needs, agencies shall reevaluate the need in accordance with 10.001(a)(3)(ii) and determine whether the need can be restated to permit commercial products, commercial services, or nondevelopmental items to satisfy the agency's needs.

(d)(1) If market research establishes that the Government's need may be met by a type of product or service customarily available in the commercial marketplace that would meet the definition of a commercial product or commercial service at subpart 2.1, the contracting officer shall solicit and award any resultant contract using the policies and procedures in part 12.

(2) If market research establishes that the Government's need cannot be met by a type of item or service customarily available in the marketplace, part 12 shall not be used. When publication of the notice at 5.201 is required, the contracting officer shall include a notice to prospective offerors that the Government does not intend to use part 12 for the acquisition.

(e) The head of the agency shall document the results of market research in a manner appropriate to the size and complexity of the acquisition.

[60 FR 48237, Sept. 18, 1995, as amended at 68 FR 43863, July 24, 2003; 68 FR 56679, 56682, Oct. 1, 2003; 71 FR 74676, Dec. 12, 2006; 73 FR 10962, Feb. 28, 2008; 75 FR 34278, June 16, 2010; 75 FR 77745, Dec. 13, 2010; 78 FR 13769, Feb. 28, 2013; 85 FR 11756, Feb. 27, 2020; 85 FR 67623, Oct. 23, 2020; 86 FR 61021, Nov. 4, 2021]

Notes of Decisions

Cited in 7 cases (1 in the last 5 years), 2006–2022 · leading case: Palantir Usg, Inc. v. United States

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Palantir Usg, Inc. v. United States (2016) uscfc · cites it 5× “§ 2377 (2012) and 48 C.F.R. § 10.002 (2016) and 48 C.F.R. § 11.”

Palantir Usg, Inc. v. United States (2018) cafc · cites it 2× “Count one of Palantir's complaint alleged that the Army violated § 2377 and 48 C.F.R. §§ 10.002 and 11.002 by refusing to solicit the data management platform as a commercial item.”

Palantir Technologies Inc. v. United States (2016) uscfc · cites it 3× “§ 2377 (2012) and 48 C.F.R §§ 10.002 and 11.002 (2016) by refusing to solicit the Data Management Platform as a commercial item.”

KSD, Inc. v. United States (2006) uscfc · cites it 2× “48 C.F.R. § 10.002 . The plaintiff in this case argues that FAR 10.”

Advanced American Construction, Inc. v. United States (2013) uscfc “” 48 C.F.R. § 10.002 (e). Plaintiff asserts that the Corps did not adequately document its research into whether two or more 8(a) firms were capable of performing the contract.”

Analytical Graphics, Inc. v. United States (2017) uscfc · cites it 10× “§ 2377 (2012) and 48 C.F.R. § 10.002 (2017) and 48 C.F.R. § 11.”

Bae Systems Norfolk Ship Repair, Inc. v. United States (2022) uscfc · cites it 2× “” 48 C.F.R. § 10.002 (b)(2)(i). It also states that “[t]he extent of market research will vary, depending on such factors as urgency, estimated dollar value, complexity, and past experience.”

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