FAR 44.402—Policy requirements.
Plain-English Summary
FAR 44.402 sets the government’s policy for subcontracting when the prime contract involves commercial products, commercial services, or nondevelopmental items. It addresses three main topics: the preference for using commercial items as components in delivered items, limits on flowdown clauses to subcontractors and lower-tier suppliers furnishing commercial products or commercial services, and the narrow circumstances in which agencies may supplement the standard commercial subcontract clause. In practice, this section is designed to preserve the commercial nature of the supply chain, reduce unnecessary government-imposed requirements, and avoid forcing commercial firms to accept noncommercial terms that would disrupt customary market practices. It also makes clear that the clause at FAR 52.244-6 is the operative implementation tool, and that it controls which clauses must flow down to commercial subcontracts even if the prime contract contains other clauses. For contractors and contracting officers, the practical significance is that commercial subcontracting should be kept as streamlined as possible, with only legally required or commercially customary clauses added.
Key Rules
Use commercial components when practicable
Contractors and subcontractors at all tiers must, to the maximum extent practicable, incorporate commercial products, commercial services, or nondevelopmental items as components of items delivered to the Government. This reflects a policy preference for leveraging existing commercial market offerings rather than requiring unique government-specific components.
Limit clauses in commercial subcontracts
Contractors and subcontractors at all tiers generally may not require their divisions, subsidiaries, affiliates, subcontractors, or suppliers furnishing commercial products or commercial services to accept clauses beyond those that are specifically allowed. The only exceptions are clauses needed to implement applicable laws or Executive orders, or clauses consistent with customary commercial practice for the item being acquired.
FAR 52.244-6 controls flowdowns
The clause at FAR 52.244-6, Subcontracts for Commercial Products and Commercial Services, implements the policy in this section. Notwithstanding any other prime contract clause, only the clauses identified in FAR 52.244-6 are required to be included in subcontracts for commercial products or commercial services.
Agency supplements are narrowly limited
Agencies may supplement FAR 52.244-6 only when necessary to reflect agency-unique statutes that apply to acquisitions of commercial products and commercial services. Agencies may not add extra flowdown requirements merely as a matter of preference or internal policy.
Commercial practice matters
Whether a clause may be imposed on a commercial subcontractor depends in part on whether it is consistent with customary commercial practice for the item being acquired. This means contracting personnel must consider market norms, not just government convenience, when deciding what to flow down.
Responsibilities
Contracting Officer
Ensure the prime contract uses the commercial subcontracting framework correctly, rely on FAR 52.244-6 for required commercial flowdowns, and avoid adding unnecessary subcontract requirements inconsistent with this policy. When agency-unique statutes apply, limit any supplementation to what is actually necessary.
Prime Contractor
Structure subcontracting for commercial products and commercial services to preserve commercial practices to the maximum extent practicable, include only the clauses required by FAR 52.244-6 or otherwise permitted by law, Executive order, or commercial practice, and avoid over-flowing down prime contract clauses that are not required.
Subcontractor or Lower-Tier Supplier
When furnishing commercial products or commercial services, accept only those clauses that are properly required under FAR 52.244-6 or that fall within the limited exceptions for law, Executive orders, or customary commercial practice. Maintain awareness of whether requested clauses are appropriate for a commercial item relationship.
Agency
Use the standard commercial subcontract clause as the baseline and supplement it only when an agency-unique statute specifically requires additional provisions for commercial acquisitions. Ensure agency policy does not conflict with the FAR’s limitation on commercial flowdowns.
Practical Implications
This section is a strong anti-overflowdown rule: if a subcontract is for commercial products or commercial services, the government generally wants the subcontract to stay commercial, not become a mini-government contract.
A common pitfall is assuming that every clause in the prime contract must flow down. For commercial subcontracts, FAR 52.244-6 is the controlling list, and other clauses do not automatically apply.
Contractors should document why a clause is required by law, Executive order, or customary commercial practice before adding it to a commercial subcontract, especially if the supplier is a commercial firm.
Contracting officers should be careful when reviewing subcontracting requirements to avoid imposing agency preferences that exceed the limited authority to supplement FAR 52.244-6.
Because the policy applies to contractors and subcontractors at all tiers, prime contractors need to manage their lower-tier flowdowns consistently and avoid creating unnecessary compliance burdens in the commercial supply chain.
Official Regulatory Text
(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.