RGCI - NDAA 2023 Specifies Data Required to Support Commercial Determinations

The National Defense Authorization Act (NDAA) 2023, Section 803 amended the data that contractors are required to supply for commercial products at the subsystem, component and spare-part levels for major weapons system. While a DFARS proposed rule is being drafted, we expect Contracting Officers and DCMA Commercial Item Group (CIG) to begin requiring this information for proposed commercial products in advance of the DFARS proposed rule.

The NDAA requires contractors that submit subsystems, components and spare parts as a commercial product to:

  • Identify comparable products sold commercially or to nongovernment entities to support an “of a type” assertion.
  • Provide a side by side comparison of the physical characteristics of the subsystem, component or spare part and the comparable commercial product.
  • Notify the contracting officer, if the company has no commercial sales of the proposed or similar product in the commercial marketplace and provide the most comparable commercial product in the marketplace.

It appears Congress cannot get the contracting officers to do the required market research per FAR Part 10, so the answer must be to require the contractors to do it for them. While we do not agree moving the requirement for market research is appropriate, we have long recommended developing documentation to assist the contracting officer.

Identifying a comparable product or service is usually not an issue for contractors and the side by side comparison is really just matching form, fit and function. The NDAA provides that a comparison of the physical characteristics is required. The government will also expect the comparison to include performance and technical characteristics. It is important that contractors identify that the functionality of the product is similar to a product that is customarily used by the general public, in conjunction with the side by side comparison because identifying all the characteristics of the proposed product to the similar to product can be difficult.

Section 803 of the NDAA also addresses the uncertified cost and pricing information required for Contracting Officers to determine reasonableness of the price of subsystems, components and spare parts of major weapons systems. This includes:

  • Prices paid for the same or similar commercial products under similar terms and conditions;
  • Prices paid for similar products sold under different terms and conditions and those terms and conditions;
  • If the Contracting officer is unable to determine the price reasonableness, the offeror must submit other uncertified cost and pricing information which can include labor costs, material costs and overhead rates.

Although this data was always requested by the government when reviewing a commercial determination, it was not mandatory. We believe the Government will default to requesting uncertified cost and pricing data. The DFARS proposed rule is expected to be issued June 21, 2023, and contractors should provide comments now.

Redstone recommends contractors or subcontractors that are submitting commercial assertions or making commercial item determinations, include a side by side comparison of the proposed and similar to commercial products including physical characteristics and technical/performance characteristics if they are not already doing so. Companies that sell the products to commercial end users will have sales data for analyzing pricing of the proposed part. When relying on similar products in the marketplace, sales data from competitors is generally not available, or sales for similar products will not be an exact comparison because technical judgement can be required in pricing a similar product. Contractors should be prepared as we believe the government is going to use the easy button and request uncertified cost data if sales data is not available or exact.

If your product/service has been determined commercial by a government agency we recommend obtaining a copy of the commercial determination to support future proposals. While the government should rely on a previous determination by another Government agency, they will not rely on a prime contractor’s commercial determination. DFARS 212.102 was revised to state Contracting Officer must rely on commercial determinations included in the Commercial Item Database or where DoD previously acquired the products/services on a FAR Part 12 contracts as “commercial” on future procurements of products/services. Contracting Officers cannot rely on FAR 12 contracts for products/services procured by a nontraditional defense contractor or on an Other Transaction Agreement where commercial practices are applied, because the product or service was not determined as commercial.

Redstone GCI is available to assist contractors in preparing commercial item assertions and making commercial item determinations. This includes describing the item and its functionality, performing market research for similar items, selection of the appropriate definition, and data to help support your proposed price.

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Written by Lynne Nalley, CPA

Lynne Nalley, CPA Lynne is a Director with Redstone Government Consulting, Inc. providing government contract consulting services to our clients primarily related to Commercial Item Determinations and support, Cost Accounting Standards, DFARS Business System Audits, Proposals, and Incurred Cost. Prior to joining Redstone Government Consulting, Lynne served in several capacities with DCAA and DCMA for over 35 years. Professional Experience Lynne began her career working with DCAA in the Honeywell Resident Office, Clearwater, FL in 1984. Lynne’s experience included various positions which involved conducting or reviewing forward proposals or rate audits, financial capability audits, progress payments, accounting and estimating systems, cost accounting standards, claims and disclosure statement reviews. She is an expert in FAR, DFARS, CAS and testified as an expert witness. Lynne assisted in drafting the commercial item guidance for DCAA Headquarters. Lynne was assigned as a Regional Technical Specialist where she provided guidance to 20 field offices on highly complex or technical issues relative to forward pricing, financial capability or progress payment issues. As an Assistant for Quality, she was involved in reviewing and ensuring audit reports were in compliance with policy and GAGAS as well as made NASBA certified presentations to the staff including but not limited to billing reviews, CAS, unallowable cost and progress payments. To enhance her experience in government contracting, Lynne accepted a position with DCMA in 2015 as part of the newly organized DCMA Cadre of Experts in the Commercial Item Group. This included performing reviews of prime contractor’s assertions and/or commercial item determinations as well as performing price analyses. Lynne was a project lead and later became a lead analyst where she engaged with the buying commands on requests and reviewed price analysis reviews performed by a team of 5 analysts. She also assisted the DCMA CPSR team relative to commercial items and co-instructed the Commercial Item Training presented to DCMA. Education Lynne earned a Bachelor of Science Degree in Accounting from the University of Central Florida. Certifications State of Florida Certified Public Accountant State of Alabama Certified Public Accountant Defense Acquisition Workforce Improvement Act (DAWIA) Level III- Auditing DAWIA Level III – Contracting

About Redstone GCI

Redstone GCI is a consulting firm focused on fulfilling the needs of government contractors in all areas of compliance. With a singular mission to help contractors through the multiple layers of “red tape,” we allow contractors to focus on what they do best – support their mission with the U.S. Government. We are home to a group of consultants made up of GovCon industry professionals, CPAs, attorneys, and retired government audit and acquisition professionals.

Our focus and knowledge of audit and compliance functions administered by DCAA and DCMA will always be at the heart of what we do. However, for the past decade, we’ve strategically grown to support other areas of the government contractor back-office with that same level of focus and expertise. We’ve added expertise in contracts management, subcontract administration, proposal pricing, various software systems, HR and employment law, property administration, manufacturing, data analytics/reporting, Grant specialists, M&A, and many other areas. When we see a trend in the needs of contractors, we act to ensure we can provide the best expertise in the market to fulfill those needs.

One thing our clients can be certain of is that with the Redstone GCI Team in your corner, there is no problem too big and no issue too technical for our team to tackle.

Topics: DFARS Business Systems, Contractor Purchasing System Review (CPSR), Commercial Item Determination