With as much research as I have performed on commercial items, I still run into people who just do not seem to understand the definition at FAR 2.101 or how to make a true commercial item determination. As you are aware, some people with handed-down interpretations and policies try to invoke rules that do not exist.
I am wondering if you can offer any quick tips on how to overcome the impasse. My example at hand is a CO buying repair services from us for a product that was purchased as a commercial item by a prime. I provided a copy of the prime’s PO clearly stating the commercial item status, but the CO is saying the government used the item so the commercial item determination does not count. I disagree. The product was intended for the government all along, and the prime incorporated a commercial item in its product as directed by the FAR.
I’m having trouble following the CO’s logic. S/he seems to be defining a commercial item by who uses it, not its availability to the public. By this logic, if I sell an iPhone to the government, then it loses its commercial status. I’m also confused as to why this CO even wants to remove the commercial status. This just brings more workload on the CO and administrator to get a repair contract in place. The approach should be the opposite—do everything possible to fit the item under the commercial definition to help streamline the process, and to keep pricing under control by widening the competition base.
Whenever I was in charge of a contracting office, I warned my folks not to make things up. They needed to prove to their customers why certain acquisition routes must or must not be followed. I also told my customers that if any of my folks said something couldn’t be done, then challenge that person and ask for proof.
Based on your example below, I don’t believe the CO is acting in the best interests of the government. It’s your decision on how hard you want to push this issue and if you win, is it worth it? It’s possible you may still win the award through non-commercial efforts. This would be a win-win, but it may not be very satisfying.