CMMC: Understanding the Distinctions between COTS, Commercial Items, and Custom Products/Services

The US DoD’s new CMMC requirements will eventually apply to all participants on any given solicitation with two notable exceptions:

• Those solicitations which fall under the definition of micro-purchases; and,
• Those solicitations which are exclusively for “commercial off the shelf” or COTS products.

If your organization is a prime contractor or a mid-tier contractor, it is important to understand the distinctions between COTS and other forms of products.  In this session, we are pleased to welcome Yuan Zhou, Adelicia Cliffe, and Chris Haile of the law firm Crowell and Moring who will discuss the distinctions between COTS products, commercial items, and custom products and services.

M. Yuan Zhou is a counsel in the Washington, D.C. office of Crowell & Moring, where she is a member of the firm’s Government Contracts Group. Yuan’s practice includes a wide range of investigatory, counseling, and transactional capabilities, including: internal investigations related to the False Claims Act, the Procurement Integrity Act, and other civil and criminal matters; compliance reviews and enhancing contractor compliance programs; representing clients in suspension and debarment proceedings; counseling on data rights issues, challenges, and disputes; mandatory disclosures; and providing government contracts due diligence in transactional matters. As part of the firm’s State and Local Practice, Yuan also counsels clients on state and local procurement issues, ranging from bid protests to contract negotiations with state agencies, and advises prime contractors and subcontractors on a variety of issues including prime/sub contract formation, disputes, and other government contracts issues.

Adelicia Cliffe is a partner in the Washington, D.C. office, a member of the Steering Committee for the firm’s Government Contracts Group, and also a member of the International Trade Group. Addie has been named as a nationally recognized practitioner in the government contracts field by Chambers USA.  Addie’s practice includes a broad range of counseling, transactional, and litigation capabilities with respect to government contracts, international trade, and national security issues, including: development, review, and enhancement of compliance programs; due diligence and integration issues in the transactional context; contract negotiation and administration; voluntary and mandatory disclosures; GSA Schedule contracting; U.S. export controls; the Buy American Act, Trade Agreements Act and other domestic preference programs; the Foreign Military Sales and Foreign Military Financing programs; U.S. laws and regulations application to foreign investment and ownership in the United States such as reviews conducted by the Committee on Foreign Investment in the United States (CFIUS) and measures to mitigate Foreign Ownership, Control, or Influence (FOCI). Representative engagements include:

J. Chris Haile is a partner at Crowell & Moring with extensive experience in government procurement law. Chris litigates disputes and counsels clients in a broad range of government contract matters, with particular emphasis on the resolution of contract disputes. For example, Chris has represented clients in matters involving the government’s breach of contract, claims for contract changes, termination for default, termination for convenience, Truth in Negotiations Act (TINA) compliance and defective pricing, commercial-item procurement, contract negotiations, and bid protests.  He also represents clients in other related matters, such as investigations and audits by government agencies or inspectors general (IGs), False Claims Act / qui tam relator suits, and disclosures to the U.S. Government.  Chris represents clients from many different industries, including aerospace, defense, health care, construction, telecommunications, information technology, and professional services.  He also has experience involving agencies such as the Department of Defense (DOD), National Aeronautics and Space Administration (NASA), Agency for International Development (USAID), Department of State, U.S. Postal Service, and the General Services Administration (GSA).