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The Department of Defense (DoD) issued a Commercial Item Determination (CID) dated March 27, 2020, for essential supplies and services procured in the response to the novel coronavirus disease (COVID-19) pandemic. The CID was issued by the Defense Contract Management Agency (DCMA) and covers a wide variety of supplies and services urgently needed in the fight against the COVID-19 pandemic by DoD, as well as state and local governments, emergency responders, hospitals and front-line health care providers nationwide.

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A memorandum from the Pentagon issued March 31, 2020, which released the CID, states that most of the supplies and services required by DoD in response to the COVID-19 pandemic will be urgent commercial item procurements. The DCMA Commercial Item Group therefore prepared a class CID pertaining to the COVID-19 pandemic. The CID covers FDA?approved vaccines and treatments; establishment of temporary testing stations or hospitals; emergency medical supplies, including certain ventilators, respirators and masks; and facility services such as deep cleaning.

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The items listed in the class CID meet the requirements of the commercial item definition in FAR 2.101, and DCMA will update the class CID as appropriate to include additional items. The DCMA determination does not apply to products or services being procured for non-COVID-19 purposes, except for future procurements of the same supplies or services previously procured using this CID. Further, use of the CID for commercial services “is dependent upon the services remaining the same and the terms and conditions being similar to those offered to the general public.”

The executive summary of the CID states that the DCMA Commercial Item Group contracting officer determines, in accordance with DFARS 212.102, that supplies and services such as the ones listed in the CID, procured in response to the COVID-19 pandemic, meet the commercial item definition in FAR&nbsp;2.101, and therefore DCMA determines the items/services to be commercial. This DFARS provision requires such a determination for acquisitions under FAR Part 12 exceeding $1 million in value. The intent of the document “is to allow Contracting Officers maximum flexibility in awarding critical contracts for supplies and services addressing the COVID-19 pandemic in a streamlined manner.”

The executive summary further states that contracting officers are encouraged to review FAR Part 18, Emergency Acquisitions. In addition, the executive summary notes that the Office of Management and Budget released guidance on March 20, 2020, informing the acquisition workforce that they can use FAR Part 13, Simplified Acquisition Procedures, for commercial items up to $13 million. Commercial items can be acquired using FAR Part 12 or Part&nbsp;13 procedures. These streamlined FAR procedures reduce regulatory requirements, administrative costs and procurement lead times, and allow commercial item acquisitions to proceed faster.

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The Commercial Item Determination covers the following types of supplies and services pertaining to COVID-19 response actions:

Efforts associated with R&amp;D or procurement of FDA approved COVID-19 vaccination(s) or anti-viral medication(s):

The CID notes that funding sources include the Biomedical Advanced Research and Development Authority (BARDA), the National Institute of Allergy and Infectious Diseases (NIAID) and the Coalition for Epidemic Preparedness Innovations (CEPI), and that companies are also funding their own research in a global initiative to conquer COVID?19. Further, “because these are being developed by private institutions for the use and procurement by private entities (Hospitals), FDA approved vaccination [or treatment] procurements are within scope of this CID.”

Efforts associated with establishing and setting up temporary booths, testing stations, or hospitals for possible COVID-19 surges (including efforts performed by the Red Cross) (those other than real property):

The CID notes that “the efforts involved with setting up a testing station involves logistic planning, organization of people, and established process for people to follow, none of which are Government unique requirements. Additionally, and specific to COVID-19, many privately run hospitals are establishing drive through testing sites.” Further, “other than real property, temporary tents/booths, or the service of manning those stations can be procured as commercial and is within scope of this CID.”

Emergency medical supplies (e.g. ventilators, masks, gloves, disinfectants, thermometers, beds, blankets) and services for COVID-19 relief efforts:

The CID notes that emergency infectious disease medical supplies “are purchases by non-government and government entities” such as public and private hospitals, ambulance and air ambulance services companies, doctors’ offices, and private and government health care systems, among others.

The CID lists emergency medical supplies for the COVID-19 pandemic, including portable ventilators and transport ventilators. The list of common supplies also includes: N95 respirators; surgical masks; face masks/small face masks; exam gloves; infrared thermometers; isolation gowns; shoe covers; eye protection; germicidal bleach; viral culture swabs; medical beds and portable medical beds; surface disinfectant wipes and cleaners; hand wipes and sanitizers and hand soap.

The CID provides commercial examples of these products and lists a variety of distributors that sell these supplies in the commercial marketplace. The CID states, “these types of items can be procured by the general public for general purposes. Based on the market research completed all the medical supplies and equipment purchased by non-government and government entities to fight the COVID-19 [pandemic] are commercial and within scope of this CID.”

Facility related services such as contracts for orderly shutdown, and associated building and equipment maintenance such as deep cleaning efforts:

The CID states that “numerous cleaning service companies, maid services, mold remediation companies, crime scene/biohazard and hazardous waste removal companies are providing COVID-19 cleaning and remediation services commercially to commercial businesses and individuals.” These services can be obtained on a commercial basis and are available to the public, with the cost based on the square footage of the area being decontaminated and the method of cleaning required by the customer, and the CID gives various examples: “Efforts like the above cleaning disinfectant services associated with COVID-19 are considered commercial and within the scope of this CID.”

The CID states that the determinations are limited to the situational information pertaining to the 2020 COVID-19 pandemic. DCMA states this CID “is being issued pre-solicitation.” DCMA did not review the terms and conditions for any service contract that may be awarded, and “current and future use of this determination for services is dependent upon the services remaining the same and the terms and conditions being similar to those offered to the general public.”

Based on the considerations noted by the CID, “supplies and services procured in response to COVID-19 such as the aforementioned, meet the requirements of the commercial item definition at FAR 2.101 and … these items and services are determined commercial items.”

Guide to DoD Marketplace for New Contractors

In addition to the March 27, 2020 CID, which helps the government procure supplies and services from commercial companies, including companies that may not have significant experience with DoD contracting, on March&nbsp;27,&nbsp;2020, DoD released a guide for small businesses and those unfamiliar with DoD contracting, titled “Contracting with the Department of Defense: A Step by Step Approach to the DoD Marketplace,” which was “designed to help partners who have not previously done business with the Federal government or the DoD.”

CID Will Help Procure Urgently Needed Supplies and Services

The mission of DCMA’s Commercial Item Group is to “provide acquisition insight for the integration of commercial products and services within DoD to streamline procurement and ensure warfighters receive cutting-edge technology at fair and reasonable prices.” In this case, the warfighters are not only those within DoD but also the front-line health care providers fighting COVID-19 across the nation and world.

The CID will help contractors, from the smallest to the largest companies, to provide urgently needed supplies and services in response to the COVID-19 pandemic. The CID will help contract officers to acquire these supplies and services as quickly as possible, without the need for an individual commercial item determination. Contract officers and program offices can focus instead on fulfilling urgent needs and implementing their procurements as quickly as possible, in order to increase their support to DoD and other agencies, state and local governments, emergency responders, hospitals and front-line health care providers nationwide.

Joseph R. Berger 202.263.4193 <a href="mailto:Joseph.Berger@ThompsonHine.com">Joseph.Berger@ThompsonHine.com</a>

Tom Mason 202.263.4168 <a href="mailto:Thomas.Mason@ThompsonHine.com">Thomas.Mason@ThompsonHine.com</a>

Francis E. (Chip) Purcell, Jr. 202.263.4118 <a href="mailto:Chip.Purcell@ThompsonHine.com">Chip.Purcell@ThompsonHine.com</a>

Ray McCann 202.263.4152 <a href="mailto:Ray.McCann@ThompsonHine.com">Ray.McCann@ThompsonHine.com</a>

Mona Adabi 202.263.4147 <a href="mailto:Mona.Adabi@ThompsonHine.com">Mona.Adabi@ThompsonHine.com</a>

ADDITIONAL RESOURCES

We have assembled a firmwide multidisciplinary task force to address clients’ business and legal concerns and needs related to the COVID-19 pandemic. Please see our <a href="https://www.thompsonhine.com/services/covid-19-task-force">COVID?19 Task Force web page</a> for additional information and resources.

This advisory bulletin may be reproduced, in whole or in part, with the prior permission of Thompson Hine LLP and acknowledgment of its source and copyright. This publication is intended to inform clients about legal matters of current interest. It is not intended as legal advice. Readers should not act upon the information contained in it without professional counsel.

This document may be considered attorney advertising in some jurisdictions.

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DoD Issues Class Commercial Item Determination for Critical Supplies & Services to Aid COVID-19 Response

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