On August 11, 2016, the DoD proposed a rule to amend the DFARS to address requirements relating to federal acquisition of commercial items. The proposed rule is part of DoD’s ongoing effort to both provide access to nontraditional defense contractors through a more streamlined acquisition process while simultaneously addressing concerns that contracting officers have sometimes failed to secure “fair and reasonable” prices for commercial item acquisitions. The proposed rule follows a prior DoD effort to implement §831 of the FY 2013 NDAA (80 Fed. Reg. 45,918), which was withdrawn in December 2015 following significant and broad-based criticism from industry and passage of the FY 2016 NDAA.

The current proposed rule would implement §831, §§851 through 853, and §§854 through 857 of the FY 2013 NDAA. Specifically, the rule would include a solicitation provision requiring offerors to submit a written request for a commercial item exception and to provide the contracting officer “information that is adequate for evaluating the reasonableness of the price for this acquisition, including prices at which the same item or similar items have been sold in the commercial market.” Currently, in determining whether an offered price is fair and reasonable, the contracting officer considers information from offerors only if the information obtained through market research is insufficient to determine price reasonableness. The proposed rule would impose an immediate demand for information from the contractor that conflicts with the requirement in FAR 15.402 that contracting officers are to first rely on other available data sources before demanding information from the contractor.

The proposed rule would also provide that a contracting officer may presume that a prior commercial item determination made by the DoD shall serve as a determination of commercial item status for subsequent procurements. This presumption is expressly limited to prior commercial item determinations from within the DoD.

Finally, to enhance the DoD’s ability to access products and services from cutting-edge firms, the proposed rule would permit DoD contracting officers to treat as commercial items any goods and services provided by nontraditional defense contractors. "A "nontraditional defense contractor" is one that is neither currently performing nor has previously performed any contract or subcontract preceding the DoD's solicitation of sources." Comments must be submitted on or before October 11, 2016. (81 Fed. Reg. 53,101, 8/11/16)