I. Procedures for Applying the Rule

Comment: One respondent recommended that there be specific procedures for applying the rule.

DoD Response: DoD maintains that the rule is clear in its implementation of the statute. It informs the prime contractor and the contracting officer of the procedures to be followed.

Comment: One respondent recommended that the solicitation and contract clauses inform the contractor that the rule applies for procurements constituting a major weapon system.

DoD Response: The rule at DFARS 234.7002(a) instructs the contracting officer that the acquisition of a major weapon system may be treated as a commercial item. The conditions required to make this determination are outlined in the DFARS for the contracting officer. Therefore, additional guidance is not required.

Comment: One respondent requested that the contracting officer be prohibited from changing the determination unless there is a substantial change in the nature of the work performed by the subcontractor, if the item no longer meets the definition of commercial items.

DoD Response: Contracting officers are required to fully and adequately document the contract file regarding the market research performed by the contracting officer as required by FAR 10.002(e). The contracting officer is required to provide the rationale supporting his or her determination that the commercial item definition at FAR 2.101 was satisfied. Therefore, the contracting officer must follow the instructions regarding defining a commercial item from subcontractors. The contracting officer must document any changes that warrant the non-applicability of the definition of commercial items.