Government Contracts Second Proposed DFARS Rule on Commercial Items Determinations
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Thursday, December 24, 2020

Second Proposed DFARS Rule on Commercial Items Determinations

By Government Contracts Editorial Staff

The Department of Defense is proposing to amend the Defense Federal Acquisition Regulation Supplement to further implement a section of the National Defense Authorization Act for Fiscal Year 2018 (PL 115-91) addressing commercial item determinations. The proposed rule in DFARS Case 2019-D029 (¶70,020.447) sought to implement sections 877 and 878 of the NDAA for FY 2017 (PL 114-328) and further implement section 848 of the NDAA for FY 2018, but the final rule (¶70,017.55) did not address section 848. DoD is now proposing to further implement section 848 due to substantial changes from the first proposed rule. Section 848 modified 10 USC 2380(b) to provide that a contract for an item using FAR Part 12 procedures serves as a prior commercial item determination, unless the appropriate official determines in writing that the use of the procedures was improper or that it is no longer appropriate to acquire the item using commercial item acquisition procedures. The new rule would implement this change at DFARS 212.102. This rule also proposes to remove the procedures at DFARS Subpart 212.70, established pursuant to section 856 of the NDAA for FY 2016 (PL 114-92), that apply to procurements of more than $1 million previously procured under a prime contract using FAR Part 12 procedures. The authority for these procedures expired on November 25, 2020. Comments on the proposed rule referencing DFARS Case 2020-D033 are due January 22, 2021. For the text of the rule, see ¶70,020.459.

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