New Pentagon memo tightens non-commercial tech procurement rules in line with executive order 

Seal of the Pentagon on display at the Pentagon visitor center. (Photo by Trevor Raney
Digital Media Division)

WASHINGTON — The Pentagon issued a new memo calling for acquisition leaders across the Defense Department to adopt practices that will help ensure the proliferation of commercial technology. 

The memo, released Tuesday, outlines ways the DoD should implement President Donald Trump’s April 15 executive order that mandated federal agencies procure commercially available products rather than non- commercial products to the “maximum extent practicable.” 

The memo noted that Pentagon procurement sometimes calls for non-commercial products rather than  commercial counterparts due to its “unique warfighting mission demand.” But John Tenaglia, DoD’s principal director for defense policy, contracting and acquisition policy, wrote in the memo that acquisition leaders need to be more stringent in determining what a commercial product is. 

“In redoubling our willingness to identify and use of commercially available products and services it should not be about casting truly non-commercial products or services as ‘commercial’ for the purpose of misapplying policies and procedures unique to the acquisition of commercial products and commercial services,” Tenaglia wrote. 

“Requiring activities, program managers, and contracting officers must work together to identify commercial solutions to fulfill DoD mission requirements,” he continued. 

Tenaglia mandated that contracting officers can no longer “independently determine” whether a commercial product or service is “sufficient to satisfy a requirement owner’s need.” Instead, he said, in accordance with Trump’s executive order, this “approval authority” will belong to the senior procurement executives, but can be passed down to general officers, flag officers or members of the Senior Executive Service. 

Additionally, contracting officers must conduct a review by June 15 of the all open solicitations, pre-solicitation notices, award notices and sole source notices for prime contract awards that are for non-commercial products worth more than the “Simplified Acquisition Threshold,” which is currently $250,000, per the Defense Acquisition University. The memo stated contracts that have already been awarded are exempt from this review. 

Following the June 15 deadline, the senior procurement executives will be responsible for submitting reports on their non-commercial technology to the Defense Pricing, Contracting, and Acquisition Policy Directorate no later than July 25, and must resubmit the reports every year thereafter. 

Program managers and requirement owners will further be mandated to submit a request for approval (RFA) to procure non-commercial products or services under FAR-based prime contracts. When filing for a RFA, the program managers must provide reason for wanting to procure a “Government-unique, custom-developed or otherwise non-commercial product or service,” the memo states. 

However, there are exceptions Tenaglia wrote. 

“Catalogued items for spare and repair parts in support of fielded weapon systems may be excluded from applicability where information pertaining to military-unique requirements was previously documented in the provisioning process,” he said.