proposed rule | The Contracting Education Academy

December 18, 2019 By cs

DoD proposes to amend definition of ‘commercial items’

On November 27, 2019, the Department of Defense (DoD) issued a proposed rule to amend the Defense Federal Regulation Supplement (DFARS) regarding the Treatment of Certain Items as Commercial Items (DFARS Case 2019-D029).

The proposed rule has three main elements:

It implements Section 877 of the National Defense Authorization Act (NDAA) for Fiscal Year 2017, providing for the Treatment of Commingled Items purchased by Contractors under DoD contracts as Commercial Items
It implements Section 878 of the NDAA for Fiscal Year 2017 by providing for the Treatment of Services Provided by Nontraditional Contractors as Commercial Items; and
It further implements Section 848 of the NDAA for Fiscal Year 2018, which provides that a contract for an item using FAR part 12 procedures shall serve as a prior commercial item determination. The proposed rule would apply only to DoD acquisitions.

Keep reading this article at: http://www.mondaq.com/unitedstates/x/871372/

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

December 7, 2018 By AMK

DoD moving away from LPTA for IT acquisitions

The Department of Defense (DoD) published a new proposed rule in the Federal Register on Tuesday of this week that follows through on legislation to remove the lowest price technically acceptable (LPTA) acquisition methodology from IT and cybersecurity acquisitions, in favor of the tradeoff source selection process.

The proposed rule, open to comment until Feb. 4, 2019 would be implemented in the Defense Acquisition Regulation Supplement (DFARS), and is based on both the 2017 and 2018 National Defense Authorization Acts (NDAAs), which include language to define when LPTA is to be used.

While initially passed as part of Section 813 in the 2017 NDAA, the 2018 NDAA included some amendments to define when LPTA should be used.

Keep reading this article at: https://www.meritalk.com/articles/dod-moving-away-from-lpta-for-it-acquisitions/

See Proposed Rule by the Defense Acquisition Regulations System on 12/04/2018 here: https://www.federalregister.gov/documents/2018/12/04/2018-26306/defense-federal-acquisition-regulation-supplement-restrictions-on-use-of-lowest-priced-technically

December 12, 2016 By AMK

Breaking the ‘institutional density’ of industry, government communications

Two mythbusters memos from the Office of Federal Procurement Policy (OFPP); the reestablishment of the Frontline Forum for contracting officers; a host of Web and in-person educational sessions over the last five years, and still the idea that government and industry can communicate about contracts is hard for many acquisition workers to grasp.

federal-register-tilted Someone called it a matter of breaking through the “institutional density” of an organization.

The latest attempt to break through that historic blockage is a proposed rule by the Federal Acquisition Regulatory Council in Nov. 29’s Federal Register.

The proposed rule says “government acquisition personnel are permitted and encouraged to engage in responsible and constructive exchanges with industry, so long as those exchanges are consistent with existing laws and regulations, and promote a fair competitive environment.”

Keep reading this article at: http://federalnewsradio.com/reporters-notebook/2016/12/breaking-institutional-density-industry-government-communications/

July 20, 2016 By AMK

DoD finally issues proposed rule addressing 2012 NDAA changes to technical data rights

On June 16, 2016, the Department of Defense (DoD) issued a proposed rule to implement Section 815 of the National Defense Authorization Act for Fiscal Year 2012, which was originally enacted in December 2011.

Under the proposed rule, DoD would be given additional flexibility to release technical data or computer software to third parties (including competitors) if the data qualify as “segregation or reintegration” data. Although the data would include limited-rights data or restricted-rights software, the recipient would be permitted to use the data or software only for segregation or reintegration, and must destroy the data or software at the “completion of authorized activities.”

The rule also permits, among other changes, the DoD to require delivery, without any time limits, of various technical data and software that either have been generated or merely “utilized” in the performance of a contract.

Four years in the making, this proposed rule attempts to implement and clarify statutory changes introduced in section 815 of the National Defense Authorization Act (NDAA) for Fiscal Year 2012.

Despite the attempt to clarify, the proposed regulations still leave open significant questions for contractors with respect to technical data rights.

Keep reading this article at: https://www.insidegovernmentcontracts.com/2016/07/6862/

On November 27, 2019, the Department of Defense (DoD) issued a proposed rule to amend the Defense Federal Regulation Supplement (DFARS) regarding the Treatment of Certain Items as Commercial Items (DFARS Case 2019-D029).

On June 16, 2016, the Department of Defense (DoD) issued a proposed rule to implement Section 815 of the National Defense Authorization Act for Fiscal Year 2012, which was originally enacted in December 2011.

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