I'm dealing with a requirement that my program office has determined to be non-commercial. However, I'm skeptical. That said, perhaps I'm overthinking, but trying to interpret the commercial item definitions is somewhat more difficult than I imagined. The need is broadly for Economic Analysis and Support including a variety of economic analysis and support tasks including Benefit-Cost Analysis, Benefit Analyses, Cost Analyses, Industry Profiles, Cost-Effectiveness Analysis, Break-Even Analysis, etc... A second component of the need is Technical Assistance which includes Literature and Document Review, Peer Review and Expert Elicitation Support, Data Acquisition and Data Base Management, etc...
Program's justification that this will not be a commercial item is as follows: "The nature of these technical support services do not lend themselves to being provided by ready-made or off-the-shelf commercial items or services, as they entail procuring labor hours and persons with specific areas of technical expertise to perform tasks and provide deliverable that often necessitate provision of technical direction over the period of performance, and cannot be defined and followed by the contractor without this kind of interaction and direction."
While I understand that the economic analysis and technical support are both likely to be tailored to the needs of our agency, I don't see why labor hour arrangements, need for persons with specific technical expertise, or even ongoing technical direction necessarily preclude this from being a commercial item. In my view, stripping it down to the basic point of the definition:
"any item, other than real property, that is of a type customarily used by the general public or by non-governmental entities for purposes other than governmental purposes, and-
(i) Has been sold, leased, or licensed to the general public; or
(ii) Has been offered for sale, lease, or license to the general public;
... it seems like the kind of economic analysis and technical assistance we're requesting are services commonly offered to non-governmental entities. Based on a source-sought notice, we received responses from several large research non-profits consulting firms who appear to be active across multiple sectors - not just the public realm.
Is there something to the program's statement that the labor hour arrangement may constitute a customization that makes this non-commercial or am I on the right track thinking this could qualify as commercial?
Thank you in advance for any feedback.