SUBPART 234.70—ACQUISITION OF MAJOR WEAPON
SYSTEMS AS COMMERCIAL ITEMS
(Revised
July 15, 2009)
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, as defined in 10 U.S.C. 2430 to be a program that—
(1) Is not a highly sensitive classified program, as determined by the Secretary of Defense; and
(2)(i) Is designated by the Secretary of Defense as a major defense acquisition program; or
(ii) Is estimated by the Secretary of Defense to require an eventual total expenditure for research, development, test, and evaluation of more than $300,000,000 (based on fiscal year 1990 constant dollars) or an eventual total expenditures for procurement of more than $1,800,000,000 (based on fiscal year 1990 constant dollars).
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.
(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.