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

Subtitle E — Provisions Relating to Commercial Items

P. L. 115-

House Conference Report. 115-404

(a) Review Of Determinations Not To Exempt Department Of Defense Contracts For Commercial Items And Commercially Available Off-The-Shelf Items From Certain Laws And Regulations.—Not later than one year after the date of the enactment of this Act, the Secretary of Defense shall—

(1) review each determination of the Federal Acquisition Regulatory Council pursuant to section 1906(b)(2), section 1906(c)(3), or section 1907(a)(2) of title 41, United States Code, not to exempt contracts and subcontracts described in subsection (a) of section 2375 of title 10, United States Code, from laws such contracts and subcontracts would otherwise be exempt from under section 1906(d) of title 41, United States Code; and

(2) propose revisions to the Department of Defense Supplement to the Federal Acquisition Regulation to provide an exemption from each law subject to such determination unless the Secretary determines there is a specific reason not to provide the exemption.

(b) Review Of Certain Contract Clause Requirements Applicable To Commercial Item Contracts.—Not later than one year after the date of the enactment of this Act, the Secretary of Defense shall—

(1) review the Department of Defense Supplement to the Federal Acquisition Regulation to assess all regulations that require a specific contract clause for a contract using commercial item acquisition procedures under part 12 of the Federal Acquisition Regulation, except for regulations required by law or Executive order; and

(2) propose revisions to the Department of Defense Supplement to the Federal Acquisition Regulation to eliminate regulations reviewed under paragraph (1) unless the Secretary determines on a case-by-case basis that there is a specific reason not to eliminate the regulation.

(c) Elimination Of Certain Contract Clause Regulations Applicable To Commercially Available Off-The-Shelf Item Subcontracts.—Not later than one year after the date of the enactment of this Act, the Secretary of Defense shall—

(1) review the Department of Defense Supplement to the Federal Acquisition Regulation to assess all regulations that require a prime contractor to include a specific contract clause in a subcontract for commercially available off-the-shelf items unless the inclusion of such clause is required by law or Executive order; and

(2) propose revisions to the Department of Defense Supplement to the Federal Acquisition Regulation to eliminate regulations reviewed under paragraph (1) unless the Secretary determines on a case-by-case basis that there is a specific reason not to eliminate the regulation.

The Senate amendment contained a provision (sec. 855) that would require the Secretary of Defense to review and, if necessary, revise the Procedures by which the Department of Defense applies government-unique regulations to the process by which it buys commercial items. It would further eliminate all regulations not required by law that were promulgated after the Federal Acquisition Streamlining Act of 1996 (Public Law 103- 355) that create government-unique clauses in contracts or subcontracts for the acquisition of commercial items and commercial off-the-shelf (COTS) items, except for regulations that the Secretary determines are vital to national security or required by law.

The House bill contained no similar provision.

The House recedes with an amendment that would require the Secretary to review determinations of the Federal Acquisition Regulations Council regarding contracts and subcontracts described in section 2375 of title 10, United States Code and propose revisions that provide exemptions unless the Secretary determines there is a reason to not do so. The amendment also requires the Secretary to review regulations not required by law or executive order for acquisition of commercial items under part 12 of the Federal Acquisition Regulation and regulations relating to acquisition of commercial-off-the-shelf items. In both cases, the Secretary is required to propose elimination of the reviewed regulations unless the Secretary determines there is a specific reason to retain them.