(Added January 31, 2018)
This subpart implements section 856 of the National Defense Authorization Act for Fiscal Year 2016 (Pub. L. 114-92).
(1) For a procurement valued at more than $1 million, but less than $100 million, previously procured under a prime contract using FAR part 12 procedures based on a commercial item determination made by a military department, a defense agency, or another DoD component, prior to converting the procurement from commercial acquisition procedures to noncommercial acquisition procedures under FAR part 15, the head of the contracting activity shall determine in writing, upon recommendation from the contracting officer for the procurement that—
(i) The earlier use of commercial acquisition procedures under FAR part 12 was in error or based on inadequate information; and
(ii) DoD will realize a cost savings compared to the cost of procuring a similar quantity or level of such item or service using commercial acquisition procedures.
(2) In the case of a procurement valued at $100 million or more, a contract may not be awarded pursuant to a conversion of the procurement described in paragraph (a)(1) of this section until a copy of the head of contracting activity determination is provided to the Office of the Under Secretary of Defense for Acquisition, Technology, and Logistics.
(b) In making a determination under paragraph (a) of this section, the determining official shall, at a minimum, consider the following factors:
(1) The estimated cost of research and development to be performed by the existing contractor to improve future products or services.
(2) The costs for DoD and the contractor in assessing and responding to data requests to support a conversion to noncommercial acquisition procedures.
(3) Changes in purchase quantities.
(4) Costs associated with potential procurement delays resulting from the conversion.
(c) The requirements of this subpart terminate November 25, 2020.