Commercial Vice Non-Commercial

[Smurphy430]

I am currently involved in a recompete for a current ID/IQ MAC Non-Commercial. Although the current contract was competed and awarded 4.5 years agao the current view is that "It was non-commercial then, it must still be." I have pointed out that the commercial T&M rules have changed and that we should take a harder look at the pros and cons before making a decision, there are good and bad points to both part 16 and 12. Well I was blown off, although everything well 99% of the task orders we do is 100% commercial they are hanging there hat on the 1% to justify calling it non-commercial.

Is there any hard and fast policy that I can use to bolster my argument. I have read Shay Asad's memo and all of the other stuff I can get my hands on, but just can find it.

Any ideas?

Thank you Steve Murphy

[Don Mansfield]

Steve,

Just to clarify, there is no "choice" or "decision" involved when using FAR Part 12 procedures. If the services meet the definition of commercial item at FAR 2.101, then use of FAR Part 12 is mandatory. If the services do not meet the definition, use of FAR Part 12 is prohibited (except as described in FAR 12.102(g)). See FAR 10.002(d):

(d)(1) If market research establishes that the Government?s need may be met by a type of item or service customarily available in the commercial marketplace that would meet the definition of a commercial item at Subpart 2.1, the contracting officer shall solicit and award any resultant contract using the policies and procedures in Part 12.

(2) If market research establishes that the Government?s need cannot be met by a type of item or service customarily available in the marketplace, Part 12 shall not be used. When publication of the notice at 5.201 is required, the contracting officer shall include a notice to prospective offerors that the Government does not intend to use Part 12 for the acquisition.

Having said that, I don't know of any rule or guideline that says that if a service is X% commercial, it meets the definition of commercial item.

[Smurphy430]

Steve,

Just to clarify, there is no "choice" or "decision" involved when using FAR Part 12 procedures. If the services meet the definition of commercial item at FAR 2.101, then use of FAR Part 12 is mandatory. If the services do not meet the definition, use of FAR Part 12 is prohibited (except as described in FAR 12.102(g)). See FAR 10.002(d):

Having said that, I don't know of any rule or guideline that says that if a service is X% commercial, it meets the definition of commercial item.

Thank you Don, I too have pointed this passage out to the KO, and the customer. But they have found a task order that they feel pulls them out of the commercial arena, and are riding it all the way. Of course it represents 1/400th of the work, but no matter, I have spoken my piece, and I am not signing it...

Good to have confirmation and know I am not going crazy...

Have a good day in class, Steve

[Vbus]

Appendix S of The DoD Commercial Item Handbook makes reference to an instance such as yours where an IDIQ contract will have orders that may be commercial or noncommercial:

"The initial contract should include provisions that reflect the Government?s buying power (e.g., caps on prices for defined tasks, and capped hourly rates).

If a multiple-award task and delivery order contract is to provide access to products or services that fall both within and outside Part 12, the contract must include the Part 12 clauses for commercial buys.

" [underlining added]

The handbook is found here: http://www.acq.osd.mil/dpap/Docs/cihandbook.pdf

From this guidance it appears that you should include both commercial and noncommercial terms & conditions (provisions and clauses) that will apply seperately when an order is either commercial or noncommercial.