Is there any requirement for special approvals at the DoD level when changing determinations?
In the FY 16 National Defense Authorization Act (Public Law No. 114-92) enacted on November 25, 2015, there were changes made in the area of commercial item acquisitions, including major defense acquisition programs acquired using commercial item (FAR Part 12) procedures/processes, which included changes to authority levels related to commercial item determinations.
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Pubic Law No. 114-92, Section 856, Limitation on Conversion of Procurements from Commercial Acquisition Procedures, contains the following language:
(a) (1) states, "except as provided in paragraph (2), prior to converting the procurement of commercial items or services
valued at more than $1,000,000 from commercial acquisition procedures under part 12 of the Federal Acquisition
Regulation to noncommercial acquisition procedures under part 15 of the Federal Acquisition Regulation, the
contracting officer for the procurement shall determine in writing that --
(A) the earlier use of commercial acquisition procedures under part 12...was in error or based on inadequate information; and
(B) the Department of Defense 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) Requirement for approval of determination by Head of Contracting Activity. In the case of a procurement valued at
more than $100,000,000, a contract may not be awarded pursuant to a conversion of the procurement described in
paragraph (1) until
(A) the head of the contracting activity approves the determination made under paragraph (1); and
(B) a copy of the determination so approved is provided to the Office of the Under Secretary of Defense for
Acquisition, Technology, and Logistics.
The contracting officer will need to determine applicability of Pub. L. No. 114-92, Section 856 based on the dollar value and other applicable conditions of the acquisition. If you have any questions concerning the FY16 NDAA, seek should guidance from your legal advisor.