Commercial items

Army Lawyer, Jan-Feb, 2003

Coordinated Effort

On 20 March 2002, the CAAC and the DARC issued a proposed rule amending the Federal Acquisition Regulation to update the clause regarding contract terms and conditions required to implement statutes or Executive Orders for commercial items. (21) The new clause ensures statutes enacted after the Federal Acquisition Streamlining Act of 1994 (FASA) (22) contain the applicable civil or criminal penalties and specifically cite their applicability to commercial items included in the list. The clause now includes pre-FASA clauses and alternatives, and excludes any post-FASA items that no longer apply. (23) "The date of each clause is added to the list to identify what revision of the listed clause applies when the clause is added to a contract." (24)

Whose Responsibility Is It?

On 31 May 2002, the DOD issued a final rule amending the Defense Federal Acquisition Regulation Supplement (25) to clarify responsibilities regarding commercial item determinations for subcontractors. (26) The rule requires contractors to determine "whether a particular subcontract item meets the definition of a commercial item." (27) When the administrative contracting officer (ACO) conducts a contractor purchasing system review (CPSR), the ACO will review the adequacy of the contractor's documented rationale for the commercial item determination. (28) The ACO should use reasonable business judgment to determine if a subcontract item complies with the commercial item definition. (29) The requirement does not affect the contracting officer's responsibilities or determinations regarding obtaining cost or pricing data. (30)

Just Minor Updates

The CAAC and the DARC issued a final rule on 20 March 2002, revising the commercial item Standard Form 1449. The final rule makes minor revisions: adding a block to indicate HUBZone set-asides, substituting the NAICS code for the SIC code, inserting a notation that award is made only on items specifically listed, and adding a block in the government's receiving report area. (31) Major Davis.

(1.) Federal Prison Industries (FPI) or UNICOR is part of the Bureau of Prisons. The mission of the FPI is to employ and provide skills to inmates confined within the Federal Bureau of Prisons. The inmates of the self-sustaining program produce items for sale to other federal agencies. See U.S. Bureau of Prisons, UNICOR Web Site, at www.unicor.gov/about/inex.htm (last visited Jan. 6, 2003).

(2.) 10 U.S.C. [section] 2410n (2000). Previously, contracting officers were required to purchase from UNICOR and were not authorized to compare UNICOR products to private industry products. Id.

(3.) Competition Requirements for Purchases From a Required Source, 67 Fed. Reg. 20,687 (Apr. 26, 2002) (to be codified at C.F.R. pts. 208,210).

(4.) 67 Fed. Reg. at 20,688.

(5.) Id. The requirements of Part 8 of the Federal Acquisition Regulation (FAR) must be followed if the UNICOR product is comparable. GENERAL SERVS. ADMIN. ET AL., FEDERAL ACQUISITION REG. pt. 8 (July 2002) [hereinafter FAR].