We support several highly complex information technology service acquisitions for custom law enforcement centric technologies which support investigations, etc. The IT engineers and architects that support and these systems require high level clearances and they are not using commercial systems or anything that would be considered a minor modification to a commercial system in developing their custom enhancements to this non-commercial system. In buying the services for the development and maintenance of this system, higher level reviewers are indicating that they are commercial services if the IT labor categories can be found on GSA IT 70. I disagree. In my experience, determining whether a service is commercial is an exercise in reading through the commercial item determination in FAR part 2.101 and defending whether or not the current requirement falls within that definition. Based on paragraph 5 of the definition (excerpt pasted below), I would argue that the services are not commercial. I pointed out that the availability of the labor category alone does not support a determination that the services are commercial, especially considering that CIO-SP3 for example supports both commercial and non-commercial task orders but uses the same labor categories for either. I have also pointed out that my biggest concern is the commercial changes clause where every change must be mutually agreed upon. In technologies where we cannot leave it up to the commercial market to decide whether or not they would want to implement a change to our requirement, this presents a risk and we have experienced the consequence of that risk recently. The response was "well this almost never happens". Without comparing every commercial clause to every non-commercial equivalent, what are some other considerations we need to address when understanding the risk of commercial vs non-commercial? What am I missing?
(5) Installation services, maintenance services, repair services, training services, and other services if-
(i) Such services are procured for support of an item referred to in paragraph (1), (2), (3), or (4) of this definition, regardless of whether such services are provided by the same source or at the same time as the item; and
(ii) The source of such services provides similar services contemporaneously to the general public under terms and conditions similar to those offered to the Federal Government;