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TITLE VIII--ACQUISITION POLICY, ACQUISITION MANAGEMENT, AND RELATED MATTERS

Subtitle B—Amendments to General Contracting Authorities, Procedures, and Limitations.

P. L. 116-

House Conference Report   116-617

(1) by redesignating subsection (b) as subsection (c); and

(2) by inserting after subsection (a) the following new subsection:

``(b) Determinations Regarding the Commercial Nature of Products or Services.--

``(1) In general.--In making a determination whether a particular product or service offered by a contractor meets the definition of a commercial product or commercial service, a contracting officer of the Department of Defense may--

``(A) request support from the Director of the Defense Contract Management Agency, the Director of the Defense Contract Audit Agency, or other appropriate experts in the Department to make a determination whether a product or service is a commercial product or commercial service; and

``(B) consider the views of appropriate public and private sector entities.

``(2) Memorandum.--Within 30 days after a contract award, the contracting officer shall, consistent with the policies and regulations of the Department, submit a written memorandum summarizing the determination referred to in paragraph (1), including a detailed justification for such determination.''.

The House bill contained provisions (secs. 820 and 820c) that would amend section 2380 of title 10, United States Code, to add a requirement that contracting officers make binding determinations on whether a particular product or service meets the definition of a commercial product or commercial service and that would amend section 2306a of title 10, United States Code, to require contracting officers to presume a previous commercial product or commercial service determination.

The Senate amendment contained no similar provision.

The Senate recedes with an amendment that would instead allow the contracting officer to request support in making a commercial product or a commercial service determination, as well as require the contracting officer to document that determination.

The conferees note that section 2380 of title 10, United States Code, requires the Department to maintain a centralized capability, necessary expertise, and resources to provide assistance in making commercial product and commercial service determinations, and to provide access to previous commercial product and commercial service determinations. The conferees are encouraged by the Secretary of Defense's support for the Commercial Items Group within the Defense Contract Management Agency, which had been responsive to direction by section 831(b)(2) of the National Defense Authorization Act for Fiscal Year 2013 (Public Law 112-239) to establish such an activity. However, the conferees note the Department has failed to fully comply with statutory requirements and internally manage commercial product and commercial service determinations to ensure consistency across the Department. Therefore, the conferees direct the Secretary of Defense to provide a briefing to the congressional defense committees by March 1, 2021 describing the Department's process for making the written memoranda determination summaries available for use by contracting officers, and the Department's plan for compliance with commercial product and commercial service statutes.