II. Discussion and Analysis

The DFARS changes are as follows:

DFARS 212.102(a)(i) is revised to add "except for acquisitions made pursuant to Federal Acquisition Regulation (FAR) 12.102(f)(1)." This language clarifies that no additional contracting officer determination is required for acquisitions made pursuant to FAR 12.102(f)(1).

DFARS 212.102(a)(i)(A) is revised to add "or meets the criteria at FAR 12.102(g)(1)." This language addresses the inconsistency between the existing DFARS language at 212.102(a)(i)(A) that all FAR part 12 acquisitions exceeding $1 million must meet the commercial item definition, and the exception at FAR 12.102(g)(1) that allows for the use of part 12 procedures for services that do not meet the definition of commercial item in FAR 2.101, as long as it meets specific criteria listed in FAR 12.102(g)(1). The change clarifies that the contracting officer must determine that an acquisition exceeding $1 million and using part 12 procedures either meets the commercial item definition in part FAR 2.101 or the criteria set out at FAR 12.102(g)(1).

Adds DFARS 212.102(a)(i)(C) to require approval at one level above the contracting officer when the commercial item determination relies on subsections (1)(ii), (3), (4), or (6) of the "commercial item" definition at FAR 2.101. The higher-level approval is required for commercial item determinations for actions that exceed $1 million that are based on "of a type" commercial procurements or items "offered for sale" but not yet sold to the general public.