Overview
FAR 44.402 establishes the federal policy of prioritizing the use of commercial products, commercial services, and nondevelopmental items while minimizing the regulatory burden on subcontractors by strictly limiting the number of flow-down clauses required in commercial subcontracts.
Key Rules
- Mandatory Preference: Contractors and subcontractors at all tiers must incorporate commercial products, services, or nondevelopmental items as components whenever practicable.
- Flow-down Restrictions: Contractors cannot require commercial subcontractors or affiliates to adhere to any clauses except those required by law, Executive orders, or those consistent with customary commercial practices.
- Implementation Mechanism: FAR clause 52.244-6 is the primary vehicle for this policy; it identifies the specific, limited set of clauses that apply to commercial subcontracts, notwithstanding any other language in the prime contract.
- Agency Limitations: Federal agencies are prohibited from supplementing FAR 52.244-6 unless necessary to satisfy unique statutory requirements applicable to commercial acquisitions.
Practical Implications
- Reduced Compliance Burden: Commercial vendors can participate in government supply chains without being forced to adopt complex, government-unique accounting or oversight systems typically required for non-commercial contracts.
- Prime Contractor Responsibility: Prime contractors must ensure they are only flowing down the essential clauses listed in FAR 52.244-6 to their commercial subcontractors to avoid unnecessary costs and maintain compliance with federal "commercial item" policies.