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Commercial Item Determinations

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Does the Government expect every purchase of commercial items to be supported by a formal, written commercial item determination such as that provided in Versions 1 and 2 (draft) of the DOD Commercial Item Handbook? We're currently drafting a commercial items procurement procedure and I cannot find definitive guidance on the subject. From a prudent business perspective, I see where such determinations would be beneficial. But, in our predominantly commercial environment, having to draft such a determination for every award could become onerous and, possibly, hard to support from a 'return on investment' perspective. I would greatly appreciate your thoughts. Thank you.

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Does the Government expect every purchase of commercial items to be supported by a formal, written commercial item determination such as that provided in Versions 1 and 2 (draft) of the DOD Commercial Item Handbook? We're currently drafting a commercial items procurement procedure and I cannot find definitive guidance on the subject. From a prudent business perspective, I see where such determinations would be beneficial. But, in our predominantly commercial environment, having to draft such a determination for every award could become onerous and, possibly, hard to support from a 'return on investment' perspective. I would greatly appreciate your thoughts. Thank you.

The DOD FAR Supplement requires determinations in the cases of actions over $ 1 million when using the procedures in FAR 12:

212.102 Applicability.

(a)(i) When using FAR Part 12 procedures for acquisitions exceeding $1 million in value, the contracting officer shall?

(A) Determine in writing that the acquisition meets the commercial item definition in FAR 2.101; and

(B) Include the written determination in the contract file.

(ii) Follow the procedures at PGI 212.102(a) regarding file documentation.

When writing your procedure, be careful of the inconsistency between the requirement for a commercial item determination and the contents of FAR 12.102 (g). This paragraph lets you use FAR 12 procedures for the acquisition of services not meeting the definition of commercial items in FAR 2.101.

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From a contractor?s perspective:

Suppose a vendor receives a sole source FAR Part 12 RFQ or RFP for specific supplies and services. The value of the acquisition is above $1,000,000. The solicitation does not have any TINA provisions or clauses, and does not otherwise request, for any other purpose, a commercial item representation from the vendor.

Assume the vendor believes the supplies and services do not meet the commercial item definition.

Does the vendor have an affirmative responsibility to inform the contracting officer that the supplies and services do not to meet the commercial item definition? What is the liability to the vendor, before or after award, if they do not inform the contracting officer of their belief?

Can the vendor rely upon, absent any other information to the contrary, that prior to releasing the RFQ/RFP, that the CO has already made a determination that the supplies and services are commercial, through market research or otherwise?

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I would like to poll the subcontractors for their dollar threshold in which written documentation of commerciality is required to be included in the subcontract/purchase order files. Although the government is only required to document this determination for acquisitions of $1M or more, it has been stated in CPSR's that DCMA will not treat subcontract files or purchase orders as commercial during an audit if the files do not contain written documentation and supporting evidence of commerciality. Please share your experiences and threshold levels for this requirement.

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