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Commercial Item Determinations -- DCMA is now the decision authority

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In the past, DCMA's Commercial Item Group was responsible for reviewing/making recommendations as to Commercial Item Determinations for buying commands throughout the field. The Procuring Contracting Officer was ultimately responsible for making the determination/decision.

Now, based on one of DPC's newest policies, this authority has been taken away from Procuring Contracting Officers altogether.

Thoughts?

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I think its a huge savings of time and resources for both the Government and contractors.

A suggested improvement--change the rules such that an item is commercial until proven otherwise. As it is now, commerciality has to be proven.

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I tend to agree with Don's assessment. My experience is that, looking at DoD as a whole, the PCOs' knowledge, skills, experience -- and willingness to commit to a position -- is uneven. I'm happy to leave the decision in the hands of the SMEs.

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20 hours ago, Don Mansfield said:

A suggested improvement--change the rules such that an item is commercial until proven otherwise.

I disagree with this suggestion.  As it currently stands, the Contractor is in the best position to provide evidence in support of its assertions that its product fits one of the eight definitions of commercial item (e.g. sales figures, marketing documents, internal emails).

If the burden switched to the Government, you'd be forcing the party without any of that data to prove a negative.

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2 hours ago, Amart said:

I disagree with this suggestion.  As it currently stands, the Contractor is in the best position to provide evidence in support of its assertions that its product fits one of the eight definitions of commercial item (e.g. sales figures, marketing documents, internal emails).

If the burden switched to the Government, you'd be forcing the party without any of that data to prove a negative.

I agree with you. Many - but not all - items are obviously commercial items. Where a determination is necessary, information, which the government may not have, is in the hands of, or may be obtained by,  the supplier. 

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Related question regarding CPSRs. Recently I've heard of Review Teams having findings related to inadequate contractor CIDs. Will review of contractor CIDs also be farmed out to the CIG?

As a contractor, if PCOs can no longer be trusted to make adequate CIDs, why should I accept that CPSR reviewers have the expertise to review my CID for adequacy?

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I would say the answer would be that the difference is in experience, training and specialty.In addition, there should be consistency across DOD with one group performing the determination.

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5 hours ago, Amart said:

I disagree with this suggestion.  As it currently stands, the Contractor is in the best position to provide evidence in support of its assertions that its product fits one of the eight definitions of commercial item (e.g. sales figures, marketing documents, internal emails).

If the burden switched to the Government, you'd be forcing the party without any of that data to prove a negative.

Why couldn't the Government obtain the data from the contractor? Doesn't the Government obtain data from the contractor to determine price reasonableness? I think it's called cost or pricing data or something like that. 

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16 minutes ago, Don Mansfield said:

I think it's called cost or pricing data or something like that.

You mean those documents that contractors need to submit to demonstrate that their pricing is fair and reasonable or else they doesn't get a contract?  Kind of like how they currently have to submit documents to prove that its product is commercial?

Under the burden-shifted regime, the contractor would be incentivized to stonewall.

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Contractors don't have to assert that their pricing is fair and reasonable, like they have to assert that something is commercial. The contracting officer makes a determination of fair and reasonable pricing based on the information provided. 

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8 minutes ago, Don Mansfield said:

Contractors don't have to assert that their pricing is fair and reasonable, like they have to assert that something is commercial.

Assertions notwithstanding, contracting officers have a "no data, no F&R determination, no contract" stick when it comes to cost or pricing data like they currently have with commercial item determinations.

I notice you responded to the first part of my post but not the part about the incentive to stonewall.  How would you mitigate/counter that under your proposed regime?

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27 minutes ago, Amart said:

I notice you responded to the first part of my post but not the part about the incentive to stonewall.  How would you mitigate/counter that under your proposed regime?

The general rule would be to treat all items as commercial. An exception would be if the contractor was performing or had performed within the last year a fully-covered CAS contract or subcontract. 

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It looks like this is only a DOD policy and does not apply to procurements controlled only by FAR. For Part 15 procurements in excess of the TINA threshold, contractors would typically submit its assertion and facts in support thereof in order to qualify the end item/service for an exemption from cost or pricing data. I assume the Contracting Officer would forward that info to DCMA for a decision.  

Edited by Neil Roberts
changed exception to exemption

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