DATE: May 31, 2002

SUBJECT: Defense Federal Acquisition Regulation Supplement (DFARS); Subcontract Commerciality Determinations

SOURCE: Federal Register, May 31, 2002, Vol. 67, No. 105, page 38023

AGENCIES: Department of Defense (DOD)

ACTION: Final Rule

SYNOPSIS: DOD is amending DFARS Part 244, Subcontracting Policies and Procedures, to clarify the responsibilities of contractors and administrative contracting officers regarding determinations as to whether a subcontract item meets the definition of "commercial item" in Federal Acquisition Regulation (FAR) 2.101, Definitions.

EDITOR'S NOTE: For more on the proposed rule, see the September 11, 2001, FEDERAL CONTRACTS DISPATCH "Defense Federal Acquisition Regulation Supplement (DFARS); Subcontract Commerciality Determinations."

EFFECTIVE DATE: May 31, 2002.

FOR FURTHER INFORMATION CONTACT: Rick Layser, Defense Acquisition Regulations Council, OUSD(AT&L)DP(DAR), IMD 3C132, 3062 Defense Pentagon, Washington, DC 20301-3062; 703-602-0293; fax: 703-602-0350. Cite DFARS Case 2000-D028 when referring to this final rule.

SUPPLEMENTAL INFORMATION: On September 11, 2001, DOD published a proposed rule to clarify the contractor's and administrative contracting officer's responsibilities with regard to whether a subcontract item meets the definition of "commercial item" in FAR 2.101. To this, it was proposed to add the following to DFARS Part 224:

Comments from three respondents were received. As a result of those comments, the proposed rule is finalized with the addition of the following sentence to DFARS 244.402(a): "This requirement does not affect the contracting officer's responsibilities or determinations made under FAR 15.403-1(c)(3) [Prohibition on Obtaining Cost or Pricing Data (10 U.S.C. 2306a and 41 U.S.C. 254b)." The pertinent portion of FAR 15.403-1(c)(3) is the sentence "If the contracting officer determines that an item claimed to be commercial is, in fact, not commercial and that no other exception or waiver applies, the contracting officer must require submission of cost or pricing data."

FOR FURTHER INFORMATION CONTACT: Panoptic Enterprises at 703-451-5953 or by e-mail to Panoptic@FedGovContracts.com.

Copyright 2002 by Panoptic Enterprises. All Rights Reserved.

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