Modifications to commercial product and commercial service determinations by Department of Defense

Section 3456 of title 10, United States Code, is amended by striking subsections (a) through (c) and inserting the following new subsections: (a) In general The Secretary of Defense shall create a default determination that products and services acquired by the Department of Defense are commercial and shall be acquired using commercial procedures, and, to the maximum extent practicable, general solicitation procedures under section 3458 of this title, unless determined to be non-commercial by the Department of Defense contracting officer. (b) Determinations regarding the non-Commercial nature of products or services A defense-unique development product or service may not be procured if there is a commercial product or service, with or without customization, that meets the minimum requirements of the Department of Defense. In making a determination whether a particular product or service offered by a contractor is non-commercial and does not meet any definition for commercial products or commercial services, a contracting officer of the Department of Defense shall submit a written memorandum summarizing the determination for approval by the head of contracting activity, prior to awarding the contract, and provide it to the contractor or subcontractor offering the product or service for which such determination is summarized in such memorandum. The memorandum shall include— (1) a detailed justification why the product or commercial service was determined to be noncommercial including the results of market research; and (2) a signed determination by the program manager that the requirement could not be reasonably changed to accommodate a commercial product or commercial service. (c) Definition The term defense-unique development means a Department of Defense-financed development, either to repurpose a commercial product or solution or to develop a new product or solution, to provide a defense-unique capability..