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Captain2722

Why Refer to Something as Non-Developmental?

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I've been purchasing a certain supply for a while that has generally been considered a "commercial" item. Based on the FAR definition, I believe this supply should be considered a "non-developmental" item.

The question is, why does it really matter what I call it in the end? Isn't Part 12 still used when dealing with NDI's? Are there any specific FAR regulations, provisions/clauses, etc. directly related to NDI's? Is there any other added benefit to referring to it as an NDI?

Please don't read this in a condescending tone...I genuinely don't know and don't want to make a huge fuss out of nothing.

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Captain,

I don't know the proper answer to your question but I think that a NDI has a higher Readiness Level (TRL) -- i.e., lower risk -- than a developmental item.

H2H

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Captain, here is the definition of an NDI that was developed by congress in the Federal Acquisition Streamlining Act (FASA) and which can be found at 41 U.S.C. 110. Based on this, you can blame any confusion over NDI's v. commercial items on congress, with the FAR Councils providing an implementation of the statute that is somewhat inconsistent with the language of the statute.

In this subtitle, the term “nondevelopmental item” means—
(1) a commercial item;
(2) a previously developed item of supply that is in use by a department or agency of the Federal Government, a State or local government, or a foreign government with which the United States has a mutual defense cooperation agreement;
(3) an item of supply described in paragraph (1) or (2) that requires only minor modification or modification of the type customarily available in the commercial marketplace to meet the requirements of the procuring department or agency; or
(4) an item of supply currently being produced that does not meet the requirements of paragraph (1), (2), or (3) solely because the item is not yet in use.

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Captain,

You say your item is a commercial item. If so, it is so because it fits one of the numbered examples under commercial item in FAR 2.101. In your case, it seems that example (8) fits for non-developmental item. So your item is both a commercial item and a non-developmental item.

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The question is, why does it really matter what I call it in the end? Isn't Part 12 still used when dealing with NDI's? Are there any specific FAR regulations, provisions/clauses, etc. directly related to NDI's? Is there any other added benefit to referring to it as an NDI?

No, FAR part 12 is not used when dealing with NDIs, unless the NDI meets definition (8) of "commercial item" at FAR 2.101:

A nondevelopmental item, if the procuring agency determines the item was developed exclusively at private expense and sold in substantial quantities, on a competitive basis, to multiple State and local governments.

There are no special regulations that deal with acquisitions of NDIs that are not commercial items.

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Don, would you agree that the FAR definition adds requirements that are not present in the statutory definition, resulting in the FAR definition being more restrictive?

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Don, would you agree that the FAR definition adds requirements that are not present in the statutory definition, resulting in the FAR definition being more restrictive?

Yes, I would. Commercial items are a subset of nondevelopmental items the way the term is defined in the statute. However, under the FAR they are distinct sets--the only overlap being definition (8) of "commercial item".

Note that definition (8) of "commercial item" comes from the statute, too (41 U.S.C. 103), too. As such, I don't think the FAR Council could have just adopted the stautory definition of "nondevelopmental item" without causing a great deal of confusion. You would have had the definition of "nondevelopmental item" saying that commercial items were a subset of NDIs, and the definition of "commercial item" saying that a subset of NDIs are commercial items. A Venn diagram would have been impossible.

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