(a) Approval authority for requiring offerors to demonstrate market acceptance pursuant to FAR 11.103(a) is delegated to the contracting officer. When the contracting officer considers it appropriate to obtain documentation to confirm that the market acceptance criteria have been met, in addition to any documentation that may be specified in the requirements document, the contracting office may use the provision at 52.211-9001, Market Acceptance.
(90) A market acceptance requirement is a requirement that an item must have performed in a certain way in a specified environment that approximates or reasonably relates to the agency's intended application. The use of market acceptance criteria is consistent with the definition of full and open competition in FAR Part 6 as it relates to agency needs. A market acceptance requirement may be used to establish either -
(i) A minimum threshold or performance that will be considered a demonstration that the item has been adequately market-tested or field-proven; or
(ii) An evaluation method that awards partial credit for items that meet part of the requirement.
(b)(90) Market research provides the information from which it can be determined whether previously-developed items exist that can meet the agency's needs and what methods are used in that marketplace to assure reliability. Then it must be shown, through a careful analysis of the intended application and the marketplace capabilities available, that the optimum strategy for meeting the Government's needs is to require items that have been field-proven in specified ways.
(b)(91) When an agency requires that an item must have achieved market acceptance, the agency must specify exactly what that means in the context of the particular acquisition. The meaning will vary widely, depending upon what benefit the agency is attempting to gain by using such a strategy.
(b)(92) When an agency's primary goal is to acquire the latest technology, other methods of assuring reliability are more appropriate than market acceptance. Particularly when acquiring items in a rapidly evolving technological field over a long-term contract, an agency will not be able to demonstrate that an item that is currently field-proven would be the best item for meeting the agency's needs several years from now.
(e) The preparing activity will maintain documentation that describes the technical aspects of the item and supports the market acceptance requirement.
(1) Some examples of the type of rationale that could support requiring a market-tested item include:
(90) Minimize design and engineering risk;
(91) Eliminate costly and time-consuming field-testing and debugging of complex items;
(92) Assure an item can be fielded quickly enough to meet an urgent requirement;
(93) Assure an established end item is routinely supported by spare and repair parts;
(94) Preclude untested or experimental units; or
(95) Assure compliance with Federal safety and environmental requirements.
(2) The market acceptance requirement may be whatever can reasonably be demonstrated -based on past experience, engineering analysis, market research and similar rational bases -to be an indicator that the item will meet the intended application. Some examples of market acceptance criteria include requirements that an item must -
(90) Have been announced to the public, indicating the manufacturer's commitment to produce the product;
(91) Be commercially available for delivery within a reasonable time;
(92) Be off-the-shelf, meaning that the products offered do not require substantial modification;
(93) Be in current production, meaning that the item is no longer in the design phase but is started on assembly line production with the expectation that such production will continue;
(94) Be state-of-the-art, meaning that the product is the offeror's latest version of that product;
(95) Have been previously sold to commercial or other customers, sometimes for a specified period of time or with a user base of a specified number;
(96) Have met specified reliability and performance requirements;
(97) Be supported by specified maintenance and logistics arrangements;
(98) Be the successor to a product having a specified history of sales and performance; or
(99) Meet some combinations of the above criteria.
(100) When the contracting officer considers it appropriate to obtain documentation to confirm that the market acceptance criteria have been met, in addition to any documentation that may be specified in the requirements document, the contracting office may use the provision at 52.211-9001, Market Acceptance.
