Revisiting an old topic - Commercial Item Determinations and 2016 NDAA

[KA20003]

I'm revisiting the below thread, which is no longer open for comment. 

Commercial item determinations vary in my office, and as I'm beginning to do more complex IT procurements, I see both the logic of the broad commercial item definition but also the difficulty faced by some contractors when procurements are labeled non-commercial.

My question to you fine folks is: (1) With a centralized office to handle DOD commerciality determinations (Sec. 851 of 2016 NDAA), I saw that Vern had indicated that this was a new ground for protest. What standard would that be - arbitrary and capricious? That's a tough standard to meet....would it be worth it for vendors to actually protest a commerciality determination? My question is moreso directed at vendors/contractors. I've only worked on the government side, so I'm curious to see if protesting a commerciality/non-commerciality determination is something that most vendors would consider to be worth their time and resources.

 

[Retreadfed]

KA, if a contractor is going to protest a determination that a product is not a commercial item, I suspect that the contractor would protest the terms of a solicitation arguing that the clauses applicable to a contract for commercial items should be in the contract instead of a broader range of clauses.  Where the protest is filed would determine the standard the forum would use to decide the protest.  If the protest is filed with the GAO, the usual standard of review requires that the agency has violated a procurement law or regulation and the violation has prejudiced the protester.  

If the protest is filed with the Court of Federal Claims, the standards or review set forth in the Administrative Procedure Act, of which the arbitrary or capricious test is one, would be used.

I can see a contractor would definitely be interested in filing such a protest, particularly if it could avoid disclosure of certified cost or pricing data or complying with the CAS in regard to the contract.