The DoW Guidebook for Acquiring Commercial-First

01Commercial is the default

Before anything else, the guide has requirements owners ask three questions, in order: is there a commercial item already; can the requirement change to fit one; does it meet a statutory definition. The first question is tested against the definition of a commercially available off-the-shelf item in 41 U.S.C. 104, and the last against the commercial product and commercial service definitions in 41 U.S.C. 103 and 103a.

If the answer to all three is no, the contracting officer follows local procedures to request approval to buy non-commercial, under the DPCAP implementation guidance for Executive Order 14271. If the answer to any of them is yes, the guide names three ways to use commercial procedures:

The rest of the guide is the order in which a contracting officer looks for one of those ways in. For you, the order is the point: each step is a place where your record can settle the question before the next one is asked.

02A military-unique buy has to prove itself

Market research is how the question gets answered, and the guide holds it to the DFARS definition: at a minimum, the review contacts knowledgeable people in Government and industry about what the market can do and what it charges. If market research finds no commercial item, the contracting officer must also document the Government's purchase history for the same item, an item of a type, or a modified item with the same function. The guide's companion on how to do that research is the Market Research Guide.

Concluding that the Department needs something custom is the hard road. The guide says "This decision requires heightened scrutiny and must be fully supported by documented analysis", and it reads section 1822 of the FY2026 NDAA as requiring enhanced due diligence, with documented market research, to show a defense-unique buy is needed. The statute is firmer than the paraphrase. It adds a subsection to the commercial preference in 10 U.S.C. 3453 under which a non-commercial item may not be bought until the agency head determines that "no commercial product, commercial service, or nondevelopmental item exists that is suitable to meet the needs of the agency", confirmed in a program manager's memorandum signed by the portfolio acquisition executive.

Even then, the contracting officer must still weigh commercial procedures and the permissive authorities before buying non-commercial. If a solicitation describes a requirement your commercial product could meet with a change to the requirement, the sources sought notice or the request for information is where to say so, because that response becomes the market research the buyer has to document.

03A prior determination now stands

The guide carries the order in the Deputy Secretary of War's memorandum of September 14, 2026: "prior Department commerciality determinations must stand for subsequent procurements unless reversed in writing by a head of the contracting activity". If the Department has already bought your item, or one with the same function, under commercial procedures, the contracting officer should rely on that FAR Part 12 award or that determination.

The same section then repeats the existing DFARS guidance, under which "contracting officers may presume that the prior commercial product or commercial service determination must serve as a determination for subsequent procurements of such product or service". The memorandum's verb is stand; the regulation's is presume. The DPCAP memorandum says the guide will be linked from the DFARS guidance in a forthcoming update, and until it is, the firmer word lives in the guide and the memorandum.

A negative finding carries less weight. A non-commercial determination and an other than commercial decision mean the same thing, and the guide says "neither document creates a binding affirmative determination". A contracting officer who finds one should ask the activity that issued it why. The guide adds that "Prime contractor determinations and subcontractor assertions are not binding". And under the of a type provisions of title 10, including 10 U.S.C. 3703, the contracting officer must also consider prior determinations and FAR Part 12 contracts for products of a type that do the same job.

Commercial status does not end the price conversation. The guide carries the memorandum's rule that "cost data may be requested if the contracting officer determines price, market, and sales data are insufficient to determine a fair and reasonable price", and points to DPCAP's supplier cost and pricing transparency memorandum for how. So keep a list of every Department commercial determination and FAR Part 12 contract that covers your item, with the contract numbers, and offer it with the proposal; and keep price, market and sales data ready, so cost data never needs to be asked for.

04What to put in your proposal

Commercial status runs down the supply chain. A subcontractor makes a commercial assertion, and the guide says the prime must evaluate it and, if it agrees, issue its own determination to the contracting officer, with the technical, market and modification evidence behind it. The guide then says "Contracting officers should consider and can rely on the contractor's CD for their subcontractors, but they are not bound by the contractor's determination". Whether the offeror must provide certified cost or pricing data stays the contracting officer's call under FAR 15.403-2.

Commercial items are exempt from certified cost or pricing data, and the guide points contracting officers to the order of preference in FAR 15.403-1 for what to ask for instead. It is candid that contracting officers decide what they need case by case, and then lists what an offeror can include to speed the determination:

Read the list as a checklist for your own proposal. The commercial assertion asks for more than a general claim that the item is commercial: a signed statement that names which part of the definition in FAR 2.101 applies. The price reasonableness data is what survives the determination, because a commercial item still needs a fair and reasonable price.

05When it is not commercial by definition

The guide asks the contracting officer to check every element of the COTS, commercial product or commercial service definition, and it does not hold you to the definition you picked: "contracting officers can determine commerciality based on a different definition if they have the supporting information to do so". Where no definition fits, three statutes let the Department treat an item as commercial anyway:

• 41 U.S.C. 1903: supplies or services to be used to facilitate defense against or recovery from cyber, nuclear, biological, chemical, or radiological attack.
• 10 U.S.C. 3457: supplies or services from nontraditional defense contractors.
• 10 U.S.C. 3458: supplies, services, or nondevelopmental items resulting from a commercial solutions opening (CSO).

The nontraditional defense contractor route matters most to a newer company. A product or service from a nontraditional defense contractor, as 10 U.S.C. 3014 defines one, may be treated as commercial and bought under FAR Part 12 even if it meets no commercial definition. To use the authority the contracting officer must decide whether you are one, and can ask you to certify in writing, under DFARS 252.215-7010, that you have not performed a Department of War contract or subcontract under full CAS coverage in the year before the solicitation.

The status carries more than commercial treatment. Section 1826 of the FY2026 NDAA exempts a nontraditional defense contractor's products and services from a list of requirements that includes the certified cost or pricing data statute. The head of the contracting activity can waive the exemption, and when that happens the Secretary must notify Congress within 60 days.

The certification is yours to sign, so check the record before you sign it. The quick check below reads the public record for any company, by name or UEI, and screens its Department of War awards and reported subcontracts against the CAS lines. Anyone can run it and get the verdict and the counts; the full result is part of Pro.

06The determination and its clocks

Above the simplified acquisition threshold defined in FAR 2.101, the contracting officer must put the commercial determination in writing. The DFARS rules the guide cites by their new numbers sit in the Department's Revolutionary FAR Overhaul deviation for DFARS Part 212, not yet in the eCFR.

The guide sets the clock in one sentence: "commercial item determinations must be accomplished within 15 days of a complete request from the contractor". The memorandum it cites ordered "commercial product and service determinations be completed within 15 business days of a complete request". The guide's sentence drops the word business, so a reader of the guide alone would count calendar days. Either way the clock starts at a complete request, which is what the package in part 4 is for.

A determination is not complete until the contracting officer signs it and uploads it to the Department's Commercial Item Database, within 30 days after award. What goes in is limited: "Contracting officers shall not upload any data marked as contractor proprietary or controlled unclassified information to the CI Database".

You can see the result. Under 10 U.S.C. 3456, on request "the contracting officer shall provide a copy of the commercial or non-commercial determination to the requesting contractor". A non-commercial determination needs a written memorandum giving a detailed justification, which should say whether the permissive authorities were considered. Ask for the copy either way: a commercial one is your precedent, and a non-commercial one tells you what to fix.

Overturning a prior determination is slow by design. The guide says "the contracting officer should consider all potential avenues to utilize commercial acquisition procedures before taking a final position and requesting an HCA review", including the nontraditional route. Then the head of the contracting activity has 30 days to confirm the prior determination or explain in writing why FAR Part 12 no longer fits.

The DCMA Commercial Item Group is the Department's centralized capability for this work, with engineers, price analysts and contracting officers authorized to make determinations themselves. A contracting officer can ask it to make the determination, and "If requested, the contracting officer must abide by the DCMA CIG's CD". It also supports program offices before requirements are final, which is the earliest point at which a commercial item can shape what the Department asks for.

07What a FAR Part 12 contract changes

The guide is plain about what is at stake. A commercial determination brings FAR Part 12 procedures, fewer FAR requirements and clauses, and price analysis on data other than certified cost or pricing data; the commercial exception in title 10 bars the contracting officer from requiring certified data from you or your subcontractors. It also changes the clauses that flow down to your suppliers. The guide says the difference is deliberate: "That is by design in law and policy to entice commercial companies to sell their products and services to the Government by imposing less restrictive terms than would be imposed upon them for noncommercial products and services".

Two domestic-content rules treat a commercially available off-the-shelf item more gently than other commercial items. The Buy American Act's component test does not apply to COTS products, and the specialty metals restriction has a COTS exception, though the guide reminds contracting officers to include DFARS 252.225-7009 when buying manufactured items for major weapon systems. If your product is COTS, say so in the assertion; the distinction can widen who you may buy from.

One more authority applies in the field. Section 843 of the FY2024 NDAA lets a combatant commander, through a senior contracting official, treat supplies or services as commercial in a contingency, a humanitarian or peacekeeping operation, a recovery from attack, or operations below the threshold of armed conflict. The guide does not say it ends; the statute does, on September 30, 2028.

08AI in the commercial determination

The guide gives artificial intelligence its own section and is careful about its limits: "While AI cannot make a commerciality determination or replace the contracting officer's judgment", it can organize the comparison and the paperwork. It tells contracting officers to read the Market Research Guide before using any AI tool on a determination, and to keep proprietary data out of what is uploaded. Then it gives six example prompts:

The prompt that matters most to you is the one on the contractor's assertion. It tells the model to mark each required element as fully addressed, partly addressed or missing, and to infer nothing that is not in the assertion. Run your own assertion through the same prompt before you send it. Whatever the buyer's model will mark as missing, you can supply first.

09Where GovConDash fits

Two of the guide's questions turn on records a contractor can read ahead of the buyer: whether your company is a nontraditional defense contractor, and what the DFARS Part 212 rules the guide cites now say. GovConDash carries both.

Documents and data used in this piece

This piece is commentary on published Department guidance, memorandums and statutes. It is not legal advice. Where it says what part of the guide means for you, that is its own reading, not the Department's.

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