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July 16, 2019 By AMK

Proposed rule offers foreign military sales as a potential pathway to commerciality

Earlier this month, the FAR Council issued a proposed rule to expand the definition of “commercial item” under the Federal Acquisition Regulation (FAR) to include certain items sold in substantial quantities to foreign governments.  This new rule implements section 847 of the National Defense Authorization Act (NDAA) for FY 2018 (Pub. L. 115-91), and has the potential to extend commercial item status to defense articles that have been sold to foreign militaries, including sales under the Foreign Military Financing program.

Ensuring the commercial item status of products and services has long been a key point of federal contracting compliance for many businesses, as commercial item contracts typically avoid many of the more burdensome provisions imposed by the FAR.  While the term “commercial item” is often generalized to refer to items offered for sale to the general public for non-governmental purposes, the definition of “commercial item” under FAR 2.101 includes certain items used for governmental purposes and sold in substantial quantities to multiple state and local governments.  See FAR 2.101.  This provision permitted products like protective equipment used by police and fire departments to be deemed commercial items.

Specifically, the FAR provides that a “nondevelopmental item” can qualify for commercial item status “if the procuring agency determines the item was developed exclusively at private expense and sold in substantial quantities, on a competitive basis, to multiple State and local governments.”  See FAR 2.101.  While the foregoing provision is limited to sales to state and local governments, the FAR separately defines “nondevelopmental item” as “[a]ny previously developed item of supply used exclusively for governmental purposes by a Federal agency, a State or local government, or a foreign government with which the United States has a mutual defense cooperation agreement.”  (emphasis added)  So while the FAR defines “nondevelopment item” to include products sold to foreign governments, the commercial item definition only extends to products sold to state and local governments.

The proposed rule expands the commercial item definition to include nondevelopmental items sold in substantial quantities to foreign governments.  While this change results in adding only four words to the FAR, it represents a potentially significant expansion to the concept of commerciality in federal contracting, as items used exclusively for defense applications would potentially be deemed commercial items under the proposed rule.  The notice of proposed rulemaking is clear that intent of the rule is to include defense articles previously developed at private expense for U.S. allies under the definition of commercial item.

Keep reading article at: https://www.insidegovernmentcontracts.com/2019/05/proposed-rule-offers-foreign-military-sales-as-a-potential-pathway-to-commerciality/

Filed Under: Government Contracting News Tagged With: acquisition regulation, commercial item, commerciality, contract award, DoD, FAR, foreign government, mutual defense cooperation agreement, NDAA, nondevelopmental item

June 27, 2019 By AMK

Proposed FAR rule would broaden ‘commercial item’ status to products developed exclusively for and sold to friendly foreign governments

A little-heralded change to the statutory definition of “commercial item” has now made its way to a proposed FAR rule, which will open up regulatory relief to a whole new class of government contractors – companies, both domestic and foreign, that regularly sell products developed at private expense to friendly foreign governments.

With the December 12, 2017, passage of Section 847 of the National Defense Authorization Act of 2018, Pub. L. 115-91 (“2018 NDAA”), the statutory set of definitions for the term “commercial items” was amended. See 41 U.S.C. § 103. More specifically, Section 103(8), addressing “nondevelopmental items,” was broadened as follows:

(8) a nondevelopmental item if the procuring agency determines, in accordance with conditions in the Federal Acquisition Regulation, that the item was developed exclusively at private expense and has been sold in substantial quantities, on a competitive basis, to multiple State and local governments or to multiple foreign governments.

(Emphasis reflects new language). On May 10, 2019, the FAR Council promulgated a Proposed Rule amending and broadening the definition of “commercial item” in FAR 2.101 to include the statutory language.

A “nondevelopmental item” (“NDI”) is separately defined by FAR 2.101 as, in pertinent part:

(1) an already developed product “used exclusively for governmental purposes by a Federal agency, a State or local government, or a foreign government with which the United States has a mutual defense agreement”; (2) a product which meets the definition in (1) that requires minor modifications or modifications “of a type customarily available in the commercial marketplace;” or (3) a product which does not meet the definition in either (1) or (2) “solely because the item is not yet in use.”

Keep reading article at: https://www.jdsupra.com/legalnews/new-proposed-far-rule-makes-way-for-88083

Filed Under: Government Contracting News Tagged With: 2018 NDAA, commercial item, FAR, FAR Council, nondevelopmental item, proposed rule

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