44.402 Policy requirements
Source: FAR 44.402 on acquisition.gov
Contractors must maximize the use of commercial items and limit subcontract flow-down clauses to only those required by law, executive order, or customary commercial practice, as implemented by FAR 52.244-6.
Overview
FAR 44.402 establishes policy requirements for the use of commercial products, commercial services, and nondevelopmental items in government contracts and subcontracts. It mandates that contractors and subcontractors at all tiers should, whenever practicable, incorporate commercial or nondevelopmental items into deliverables. The section also limits the flow-down of contract clauses to subcontractors providing commercial products or services, requiring only those clauses mandated by law, executive order, or customary commercial practice. The clause at FAR 52.244-6 is the primary mechanism for implementing these policies, and agencies may only supplement it to address unique statutory requirements.
Key Rules
- Incorporation of Commercial Items
- Contractors and subcontractors must use commercial products, commercial services, or nondevelopmental items as components whenever possible.
- Limitation on Flow-Down Clauses
- Only clauses required by law, executive order, or customary commercial practice should be applied to subcontractors providing commercial products or services.
- Use of FAR 52.244-6
- The clause at 52.244-6 governs which clauses must be included in subcontracts for commercial products and services.
- Agency Supplements
- Agencies may only supplement 52.244-6 to address unique statutory requirements specific to their agency.
Responsibilities
- Contracting Officers: Ensure contracts include FAR 52.244-6 and that only required clauses are flowed down to commercial subcontracts.
- Contractors: Incorporate commercial/nondevelopmental items and limit flow-down clauses to those required.
- Agencies: Only supplement FAR 52.244-6 for unique statutory needs.
Practical Implications
- This section encourages efficiency and cost savings by maximizing the use of commercial solutions and minimizing unnecessary contract requirements for subcontractors. Contractors must be diligent in identifying which clauses are mandatory for commercial subcontracts and avoid overburdening suppliers with unnecessary requirements. Common pitfalls include over-flowing clauses or failing to use commercial items when feasible.
(a) Contractors and subcontractors at all tiers shall, to the maximum extent practicable:
(1) Be required to incorporate commercial products, commercial services, or nondevelopmental items as components of items delivered to the Government; and
(2) Not be required to apply to any of its divisions, subsidiaries, affiliates, subcontractors or suppliers that are furnishing commercial products or commercial services any clause, except those-
(i) Required to implement provisions of law or Executive orders applicable to subcontractors furnishing commercial products or commercial services; or
(ii) Determined to be consistent with customary commercial practice for the item being acquired.
(b) The clause at 52.244-6, Subcontracts for Commercial Products and Commercial Services, implements the policy in paragraph (a) of this section. Notwithstanding any other clause in the prime contract, only those clauses identified in the clause at 52.244-6 are required to be in subcontracts for commercial products or commercial services.
(c) Agencies may supplement the clause at 52.244-6 only as necessary to reflect agency unique statutes applicable to the acquisition of commercial products and commercial services.