D.  Two Separate Standards for Civilian and DoD Agencies

Comment: One respondent stated that the proposed rule creates two separate standards for civilian and DoD agencies in that "the practical result could be that an item will be treated as commercial for purposes of intellectual property rights by civilian agencies, and as non-commercial by the agencies of DoD."

Response: Without analyzing the required treatment under the FAR of a commercial item by a civilian agency when the Government has paid a portion of the development costs, the proposed rule has not changed the criteria for whether an item is a commercial item (i.e., under the definition at FAR 2.101). Since 1995, DFARS 227.7102-3(b) has required the use of the noncommercial clause at 252.227-7013 in lieu of the commercial clause at 252.227-7015 if the Government will pay any portion of the development costs of the commercial item. Although the proposed revision of the DoD validation scheme to include a "Commercial Rule" and a "Major Systems Rule" may have no equivalent in the civilian validation scheme, DoD's process is driven by the changes to 10 U.S.C. 2321, for which there is no equivalent in the civilian agency statute (41 U.S.C. 253d). No revisions are necessary.