natavas

I apologize for not being clear. Government employees are certainly subject to a number of statutory and regulatory prohibitions related to the handling of confidential commercial and proprietary data and disclosure of such information outside of the Government. I was talking about CID evaluations by prime contractors. The concern is providing confidential pricing information of other customers, who may be the prime's competitors.

Giving pricing is not an issue but they always want unredacted invoices showing the customer and the end use, which is confidential information of our commercial customer.

Anyone you may recommend on the East Coast?

Thank you all for your answers. This is exactly what I am talking about. Exposure in selling as non-commercial items is quite significant. For my business, 3rd tier component manufacturer for aircraft and navy ships, the risks are compounded by the unilateral Changes clauses coupled with the technical data rights clauses. But because as a sole source supplier we are facing much resistance from the COs to our commerciality assertions (they want more information on pricing), I am trying to evaluate what the dangers are in selling non-commercially.

For a small woman owned business (OEM manufacturer), what is the true advantage for insisting on selling its product solely as commercial items? If selling as non-commercial items, CAS does not apply as company is a small business. Technical Data Rights clauses do apply but with careful planning, company's technical data can remain its own. It seems that most FAR and DFARS clauses of import would revolve around providing of certified cost and pricing data (FAR 52.215-10 thru 14) and (FAR 52.215-20 and 21), and Audit rights (FAR 52.215-2). It seems to me that the government and primes have a hard time or are unwilling to evaluate "commercial item" justifications. Occasionally, even if the prime has accepted the commerciality assertion, DCMA will do their audit or engage a third party (like the Navy Price Fighters), who reject the CID. All this results in solicitations being issued as FAR Part 15. To state the question above differently: What is the true danger in selling as non-commercial items?

You mention that "The higher tier vendor asked if the dip-coating company was ITAR registered". I guess you mean the question is whether the dip-coating company is registered with the Directorate of Defense Trade Controls (DDTC). This is a standard compliance request by primes. Registration with the DDTC is required for all manufacturers, exporters, and brokers of defense articles, related technical data and defense services as defined on the United States Munitions List (Part 121 of the ITAR). If dip-coating company does not a manufacturer or is providing dip-coating services, then they would not be required to register. That said there may still be export considerations if "ITAR controlled" parts are exported (or deemed exported). This will occur when the company employees non-US persons or is itself located overseas. Any vendor at any tier would be affected by the ITAR is they manufacture defense articles or generate controlled technical data.

Here is a question: A subcontractor made a proposal to design, manufacture and sell widgets that did not include a commercial item assertion. Subcontractor was selected as a sole source for these products and has been selling these for a number of years. Can a subcontractor now assert commerciality for these parts? Thanks

Vern, thank you for your response. My concern is primarily with the apparent inconsistency of the required marking. DFARS 252. 227-7013 provides the four allowable markings for data. Three of them, GPR, LR and SLR describe the type of license government gets. Yet, data with unlimited rights, such as form, fit and function, do no get any kind of marking. Let me use an example: DFARS 252. 227-7013(f)(1) General marking instructions, provides that "[w]hen only portions of a page of printed material are subject to the asserted restrictions, such portions shall be identified by circling, underscoring, with a note, or other appropriate identifier." The end product is a commercial item. One deliverable document contains data that has been developed solely at private expense (and would get Limited Rights marking), but contains some data that has been developed under this contract and was paid for by the government (would get an Unlimited Rights - no marking). Does that page of the document then include a "circling" with a note that particular data is Unlimited Rights, even though no marking requirement for Unlimited Rights data is prescribed by the DFARS?

I have been reading the responses in this chain and have a question. Is the consensus that you should NOT mark as "XYZ Proprietary" data that would be Unlimited Rights data, such as OMIT or form, fit and function data? Since no marking is required for Unlimited Rights data, and markings not prescribed by the DFARS will be ignored, what is the harm in having a proprietary marking? My concern is with the disclosure by government of such data outside of the government (for example, to competitors). At least it would put those third parties on notice of the proprietary nature of this data.

As a follow up, here is the caption from the contract: "This is an indefinite Quantity Contract. Orders may be issued on this contract for a period of Dec 2011 - Dec 2012. Actual unit prices will be specified on individual delivery orders issued under this contract. " "The price for the base period and the option periods are as follows: Base Period $X, Opt Period 1 - $X, Opt Period 2 - $X, Opt Period 3 - $X As far as I can tell there is nothing more specific on whether it is for orders issued or orders with delivery dates.

This may be a silly question but please foregive me as I am new to government contracting. Our contract with government customer covers a base period (Dec 2011-Dec 2012) and three option periods all having incrementally increased pricing. It also states that phased delivery of 200 each per month beginning in 86 days after receipt of order. We received a timely notice of excercising the option to extend for Option year 1 for Dec 2012-Dec 2013. The notice also restates that the price for the option period will be $X (as negotiated in the base contract). The customer has placed an order for deliveries in option year 1 (2013) but referenced pricing from base year, not pricing for year 1. When we insisted that price should be adjusted, customer responded the price should be at the time of the "award" not based on delivery dates. Am I correct to insist that for all orders with deliveries in the option period from December 2012 to December 2013 the price should be increased? What is the authority to support the answer?

Much appreciated.

Is a small business selling commercial items and COTS item valued less than $650,000 in total required to have a small business contracting plan under FAR 52.219-9?