Take Two: Proposed Defense Federal Acquisition Regulation Supplement Commercial Item Rule Still Fails to Rein in Contracting Officer Discretion

On August 11, 2016, the Department of Defense (“DoD”) published a revised proposed rule to amend the Defense Federal Acquisition Regulation Supplement (“DFARS”) to implement sections of the National Defense Authorization Acts for Fiscal Years 2013 and 2016 relating to commercial item acquisitions. This proposed rule replaces the rule that DoD proposed last August and retracted last December following critical commentary from the acquisition community.  While the revised proposed rule seemingly lessens the burden on contractors selling commercial items to the DoD by, among other things, restricting the contracting officer’s discretion to conclude that an item is not commercial when a DoD component has previously determined that it is and establishing a “hierarchy” of data for contracting officers to consider when making determinations of price reasonableness, both of these provisions fall short.

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