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flvlaw

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  1. Thx for response. My question was targeted at the authority for a subcontractor to use the nontraditional contractor justification. Reading the responses I discovered that the DFARS 215 flowdown, 252.215-7010 (e) Subcontracts. The Offeror shall insert the substance of this provision, including this paragraph (e), in subcontracts exceeding the simplified acquisition threshold defined in FAR part 2. Paragraph (b) provides an exception for certified cost or pricing data for non-traditional contractors. I believe this answers my question. Thx everyone. I apologize for the vague question.
  2. Question: Can DFARS 212 nontraditional defense contractor authority to use FAR 12 commercial procedures apply to nontraditional subcontractors? Background: Defense Federal Acquisition Regulation Supplement: Commercial Item Determinations (DFARS Case 2020-D033), posted on 04/28/2022 provides that FAR Part 12 Commercial procedures can be used by "non-traditional defense contractors" even if the item is not commercial. PART 212—ACQUISITION OF COMMERCIAL ITEMS Authority: 41 U.S.C. 1303 and 48 CFR chapter 1. 212.102 Applicability. (a)(i) Use of FAR part 12 procedures. Use of FAR part 12 procedures is based on— (A) A determination that an item is a commercial item (see paragraph (a)(iii) of this section); or (B) Applicability of one of the following statutes that provide for treatment as a commercial item and use of FAR part 12 procedures, even though the item may not meet the definition of “commercial product” or “commercial service” at FAR 2.101 and does not require a commercial item determination: (1) 41 U.S.C. 1903—Supplies or services to be used to facilitate defense against or recovery from cyber, nuclear, biological, chemical, or radiological attack pursuant to FAR 12.102(f). (2) 10 U.S.C. 2380a—Supplies or services from nontraditional defense contractors pursuant to 212.102(a)(iv). 10 U.S.C. 2380a (9) The term “nontraditional defense contractor”, with respect to a procurement or with respect to a transaction authorized under section 2371(a) or 2371b of this title, means an entity that is not currently performing and has not performed, for at least the one-year period preceding the solicitation of sources by the Department of Defense for the procurement or transaction, any contract or subcontract for the Department of Defense that is subject to full coverage under the cost accounting standards prescribed pursuant to section 1502 of title 41 and the regulations implementing such section. DFARS 212—ACQUISITION OF COMMERCIAL ITEMS (iv) Nontraditional defense contractors. In accordance with 10 U.S.C. 2380a, contracting officers— (A) Except as provided in paragraph (a)(iv)(B) of this section, may treat supplies and services provided by nontraditional defense contractors as commercial items. This permissive authority is intended to enhance defense innovation and investment, enable DoD to acquire items that otherwise might not have been available, and create incentives for nontraditional defense contractors to do business with DoD. It is not intended to recategorize current noncommercial items; however, when appropriate, contracting officers may consider applying commercial item procedures to the procurement of supplies and services from business segments that meet the definition of “nontraditional defense contractor” even though they have been established under traditional defense contractors. The decision to apply commercial item procedures to the procurement of supplies and services from nontraditional defense contractors does not require a commercial item determination and does not mean the item is commercial; (B) Shall treat services provided by a business unit that is a nontraditional defense contractor as commercial items, to the extent that such services use the same pool of employees as used for commercial customers and are priced using methodology similar to methodology used for commercial pricing; and (C) Shall document the file when treating supplies or services from a nontraditional defense contractor as commercial items in accordance with paragraph (a)(iv)(A) or (B) of this section.
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