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TITLE VIII--ACQUISITION POLICY, ACQUISITION MANAGEMENT, AND RELATED MATTERS

Subtitle D—Provisions Relating to Acquisition Workforce

P. L. 114-

House Conference Report. 114-270

(a) Commercial Item Determinations by Department of Defense.—

(1) IN GENERAL.—Chapter 140 of title 10, United States Code, is amended by adding at the end the following new section:

Ҥ 2380. Commercial item determinations by Department of Defense

“The Secretary of Defense shall—

“(1) establish and maintain a centralized capability with necessary expertise and resources to oversee the making of commercial item determinations for the purposes of procurements by the Department of Defense; and

“(2) provide public access to Department of Defense commercial item determinations for the purposes of procurements by the Department of Defense.”.

(2) CLERICAL AMENDMENT.—The table of sections at the beginning of such chapter is amended by adding at the end the following new item:

“2380. Commercial item determinations by Department of Defense.”.

(b) Commercial item exception to submission of cost and pricing data.—Section 2306a(b) of title 10, United States Code, is amended by adding at the end the following new paragraph:

“(4) COMMERCIAL ITEM DETERMINATION.— (A) For purposes of applying the commercial item exception under paragraph (1)(B) to the required submission of certified cost or pricing data, the contracting officer may presume that a prior commercial item determination made by a military department, a Defense Agency, or another component of the Department of Defense shall serve as a determination for subsequent procurements of such item.

“(B) If the contracting officer does not make the presumption described in subparagraph (A) and instead chooses to proceed with a procurement of an item previously determined to be a commercial item using procedures other than the procedures authorized for the procurement of a commercial item, the contracting officer shall request a review of the commercial item determination by the head of the contracting activity.

“(C) Not later than 30 days after receiving a request for review of a commercial item determination under subparagraph (B), the head of a contracting activity shall—

“(i) confirm that the prior determination was appropriate and still applicable; or

“(ii) issue a revised determination with a written explanation of the basis for the revision.”.

(c) Definition of commercial item.—Nothing in this section or the amendments made by this section shall affect the meaning of the term “commercial item” under subsection (a)(5) of section 2464 of title 10, United States Code, or any requirement under subsection (a)(3) or subsection (c) of such section.

(d) Regulations update.—Not later than 180 days after the date of the enactment of this Act, the Defense Federal Acquisition Regulation Supplement shall be updated to reflect the requirements of this section and the amendments made by this section.

(e) Rule of construction.—Nothing in this section or the amendments made by this section shall be construed to preclude the contracting officer for the procurement of a commercial item from requiring the contractor to supply information that is sufficient to determine the reasonableness of price, regardless of whether or not the contractor was required to provide such information in connection with any earlier procurement.

The Senate amendment contained a similar provision (sec. 863) that would require the modification to the Defense Federal Acquisition Regulation Supplement to address the continuing validity of commercial item determinations for multiple procurements.

The Senate recedes with an amendment that would combine both provisions and make technical and conforming changes.

House Report 114-102 to accompany H. R. 1735 as it was reported out of the House Armed Services Committee.

Section 804--Procurement of Commercial Items

This section would amend chapter 140 of title 10, United States Code, by adding a new section that would require the Secretary of Defense to establish and maintain a centralized capability with the resources and expertise to oversee the making of commercial item determinations for Department of Defense procurements and to provide public access to Department of Defense commercial item determinations.

This section would also amend section 2306a(b) of title 10, United States Code, to allow the contracting officer to presume that a prior commercial item determination made by a military department, Defense Agency, or other component of the Department of Defense shall serve as a determination for subsequent procurements of such items. If the contracting officer instead proceeds with a procurement of an item previously determined to be commercial using procedures other than those authorized for commercial item procurement, this section would require the contracting officer to request a review of the prior commercial item determination by the head of the contracting activity. The section would require the head of the contracting activity to, within 30 days of receiving a request for review, either confirm that the prior determination was appropriate or issue a revised determination. The committee expects that in conducting such a review, the head of the contracting activity would consult with the centralized capability, required to be established by the Secretary of Defense under this section, to inform such determinations. Nothing in this section or the amendments made by this section shall affect the meaning of the term ``commercial item'' under subsection (a)(5) of section 2464 of title 10, United States Code.

Senate Report 114-49 to accompany S. 1376 as it was reported out of the Senate Armed Services Committee.

Continuing validity of commercial item determinations (sec. 863)

The committee recommends a provision to require the modification of the Defense Federal Acquisition Regulation Supplement to address the continuing validity of commercial item determinations for multiple procurements. This provision would streamline the commercial item determination process and provide certainty to the government and contractors by presuming that a previous commerciality determination made by an authorized agency official is valid, unless such determination is found to be made in error or based on inadequate information.