Cable

I appreciate everyone's willingness to offer thoughts on the question about, essentially, what is the commercial marketplace for purposes of the FAR's definition of COTS. I hear the term COTS used frequently, but I'm not sure it always means what people think it means. Or, as this discussion above suggests, maybe it does, if there is no precise definition that limits a CO's discretion. I realize it may not be the most interesting issue to most, but I find it fascinating when there is a concept that exists and is somewhat common, and it has consequences (e.g., exemption from some regulations) but there isn't a well-defined definition for it. I did find a reference in the 2008 NDAA, Section 815(b), that required the Secretary of Defense "to modify the regulations of the Department of Defense on the procurement of commercial items in order to clarify that the terms 'general public' and `nongovernmental entities' in such regulations do not include the Federal Government or a State, local, or foreign government." Although that provision was specific to DoD and in a section involving weapons systems (and doesn't address commercial marketplace or COTS expressly), not sure why the general public would be one thing to one agency but a different to all others. That said, while it seems the DFARS did implement Section 815(b), Congress repealed 815(b) with the 2019 NDAA. Section 812, and so DoD removed the definition from the DFARS. I will wait until Congress, the FAR Council, or GAO or a court defines commercial marketplace for purposes of COTS, and until then will let discretion be the rule. No need to continue the discussion on my account; again, appreciate the inputs.

Thanks, @bosgood, but if the definition of COTS includes as the first requirement that the product be commercial, isn't commercially available off the shelf a subset of commercial? I.e., all COTS products are commercial, but not all commercial products are COTS. I agree the widgets could be considered commercial under FAR 2.101. But I've never heard of a non-federal governmental entity be considered a commercial entity ... is there authority for that?

I am looking for guidance on the meaning of commercially available off the shelf under the FAR. A company manufactures three different widgets, but sells them only to state, local, and foreign government agencies/organizations (e.g., first responder entities). The widgets are never modified for a particular state, local, or foreign customer. Although the company has a catalog price for its widgets, that catalog is not publicly available. Although the widgets are on the company's website, no consumer can click on the widget, see a price, and order the widget; rather the consumer is directed to contact a sale rep. The company has never sold its widgets in a commercial marketplace. The only non-government entities to which it has sold its widgets are third-party re-sellers, who then sell the widgets to a state, local, or foreign government agency. Re-sellers are necessary because the company is unable to penetrate certain markets on its own due to local regulations and laws. The company now wishes to sell its widgets to the federal government. FAR 2.101's definition of commercially available off the shelf provides that the item is 1) commercial; 2) sold in substantial quantities in the commercial marketplace; and 3) sold to the government without modification (and is not bulk cargo). Do I understand this definition correctly to require there be actual sales in a commercial marketplace as a prerequisite for an item to be considered a COTS product? Assuming the substantial quantity threshold is met (whatever that means), are sales to a re-seller, who then sells to a governmental entity end user, sufficient to meet this prerequisite? Are there examples of companies correctly claiming their products to be COTS even though it does not sell those products to non-governmental end users, either directly or through re-sellers?