FedGovContracts.com

Panoptic Enterprises’

FEDERAL CONTRACTS PERSPECTIVE

Federal Acquisition Developments, Guidance, and Opinions


November 2019
Vol. XX, No. 11
[pdf version]

CONTENTS


FAC 2020-01 Makes Changes to “Commercial Item” Definition
Four FAR Rules Proposed
DFARS Clauses and Provisions All Scrambled Up
GSA Consolidating Schedules, Retiring FedBizOpps



FAC 2020-01 Makes Changes to
“Commercial Item” Definition

Federal Acquisition Circular (FAC) 2020-01 consists of a single final rule: one that amends the definition of “commercial item” in Federal Acquisition Regulation (FAR) 2.101, Definitions, to implement the National Defense Authorization Act (NDAA) for Fiscal Year (FY) 2018 (Public Law 115-91), Section 847, Revision of Definition of Commercial Item, which expands the universe of nondevelopmental items (NDIs) that qualify as commercial items to include items sold in substantial quantities on a competitive basis to multiple foreign governments.

Title 41 of the U.S. Code, Section 103, Commercial Item (41 USC 103), provides a definition of “commercial item” that is broad and covers a wide range of products and services. 41 USC 103 consists of eight categories of products and services that are considered commercial items. Of those eight, the one in paragraph (8) covers “nondevelopmental items” (NDIs). 41 USC 103(8) stated that “a nondevelopmental item [is considered a commercial item] if the procuring agency determines, in accordance with conditions in the Federal Acquisition Regulation, that the item was developed exclusively at private expense and has been sold in substantial quantities, on a competitive basis, to multiple state and local governments.” This definition was included almost verbatim as the definition of “commercial item” in FAR 2.101. (EDITOR’S NOTE: NDI has its own definition in FAR 2.101, which states that NDI includes “any previously developed item of supply used exclusively for governmental purposes by a federal agency, a state or local government, or a foreign government with which the United States has a mutual defense cooperation agreement...”)

Section 847 of the NDAA for FY 2018 amended 41 USC 103(8) by adding the phrase “or to multiple foreign governments” to the end of the NDI category, so that it now reads: “a nondevelopmental item [is considered a commercial item] if the procuring agency determines, in accordance with conditions in the Federal Acquisition Regulation, that the item was developed exclusively at private expense and has been sold in substantial quantities, on a competitive basis, to multiple state and local governments or to multiple foreign governments” (emphasis added).

To implement Section 847, the NDI category of the “commercial item” definition in FAR 2.101 is modified from “‘commercial item’ means...(8) a nondevelopmental item, if the procuring agency determines the item was developed exclusively at private expense and sold in substantial quantities, on a competitive basis, to multiple state and local governments” to “‘commercial item’ means...(8) a nondevelopmental item, if the procuring agency determines the item was developed exclusively at private expense and sold in substantial quantities, on a competitive basis, to multiple state and local governments or to multiple foreign governments” (emphasis added).

Four FAR Rules Proposed

Besides the FAC that revised the definition of “commercial item” (see above article), the FAR Council has issued proposed rules amending the micro-purchase threshold, the simplified acquisition threshold, and the certified cost or pricing data threshold. In addition, a proposed rule was issued that would restrict the use of the lowest price technically acceptable (LPTA) source selection process, and another proposed rule that exempts employees involved in seasonal recreational services on federal lands from the minimum wage applicable to federal contractors.



DFARS Clauses and Provisions All Scrambled Up

The Department of Defense (DOD) spent October engaged in a clean-up the DOD FAR Supplement (DFARS) by modifying or proposing to modify six clauses and removing one provision in DFARS part 252, Solicitation Provisions and Contract Clauses. In addition, DOD amended the DFARS to implement a section of the National Defense Authorization Act (NDAA) for Fiscal Year (FY) 2018 involving weapon system design.



GSA Consolidating Schedules, Retiring FedBizOpps

The General Services Administration (GSA) is undertaking efforts to improve and streamline the federal acquisition process by merging multiple awards schedules into a single schedule, requesting proposals for commercial e-commerce portals, and retiring FedBizOpps and transitioning its functions to the System for Award Management (SAM).





Copyright 2019 by Panoptic Enterprises. All Rights Reserved.

Return to the Newsletters Library.

Return to the Main Page.