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SUBPART 234.70—ACQUISITION OF MAJOR WEAPON SYSTEMS AS COMMERCIAL ITEMS

(Revised October 1, 2015)

 

 



 234.7000 Scope of subpart.
 234.7001 Definition.
 234.7002 Policy.


234.7000  Scope of subpart.

This subpart—

 

      (a)  Implements 10 U.S.C. 2379; and

 

      (b)  Requires a determination by the Secretary of Defense and a notification to Congress before acquiring a major weapon system as a commercial item.

 

234.7001  Definition.

“Major weapon system,” as used in this subpart, means a weapon system acquired pursuant to a major defense acquisition program.

 

234.7002  Policy.

 

      (a)  Major weapon systems. 

 

              (1)  A DoD major weapon system may be treated as a commercial item, or acquired under procedures established for the acquisition of commercial items, only if—

 

                    (i)  The Secretary of Defense determines that—

 

                            (A)  The major weapon system is a commercial item as defined in FAR 2.101; and

 

                            (B)  Such treatment is necessary to meet national security objectives;

 

                    (ii)  The offeror has submitted sufficient information to evaluate, through price analysis, the reasonableness of the price for such a system; and

 

                    (iii)  The congressional defense committees are notified at least 30 days before such treatment or acquisition occurs.  Follow the procedures at PGI 234.7002 (DFARS/PGI view).

 

              (2)  The authority of the Secretary of Defense to make a determination under paragraph (a)(1) of this section may not be delegated below the level of the Deputy Secretary of Defense.

 

      (b)  Subsystems.  A subsystem of a major weapon system (other than a commercially available off-the-shelf item) may be treated as a commercial item and acquired under procedures established for the acquisition of commercial items only if—

 

              (1)  The subsystem is intended for a major weapon system that is being acquired, or has been acquired, under procedures established for the acquisition of commercial items in accordance with paragraph (a) of this section; or

 

              (2)  The contracting officer determines in writing that—

 

                    (i)  The subsystem is a commercial item; and

 

                    (ii)  The offeror has submitted sufficient information to evaluate, through price analysis, the reasonableness of the price for the subsystem.

 

      (c)  Components and spare parts. 

 

              (1)  A component or spare part for a major weapon system (other than a commercially available off-the-shelf item) may be treated as a commercial item only if—

 

                    (i)  The component or spare part is intended for—

 

                            (A)  A major weapon system that is being acquired, or has been acquired, under procedures established for the acquisition of commercial items in accordance with paragraph (a) of this section; or

     

                            (B)  A subsystem of a major weapon system that is being acquired, or has been acquired, under procedures established for the acquisition of commercial items in accordance with paragraph (b) of this section; or

 

                    (ii)  The contracting officer determines in writing that—

 

                            (A)  The component or spare part is a commercial item; and

 

                            (B)  The offeror has submitted sufficient information to evaluate, through price analysis, the reasonableness of the price for the component or spare part.

 

              (2)  This paragraph (c) shall apply only to components and spare parts that are acquired by DoD through a prime contract or a modification to a prime contract, or through a subcontract under a prime contract or modification to a prime contract on which the prime contractor adds no, or negligible, value.

 

      (d)  Relevant information.  To the extent necessary to make a determination under paragraph (a)(1)(ii), (b)(2), or (c)(1)(ii) of this section, the contracting officer may request the offeror to submit—

 

              (1)  Prices paid for the same or similar commercial items under comparable terms and conditions by both Government and commercial customers; and

 

              (2)  Other relevant information regarding the basis for price or cost, including information on labor costs, material costs, and overhead rates, if the contracting officer determines that the information described in paragraph (d)(1) of this section is not sufficient to determine price reasonableness.

 


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