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I am an Army Contracting Officer in charge of the source selection for the production of an Army system. Since it always looks good for the program management folks to reach out to the other services (demonstrates you understand the “big picture”), this has occurred. In this case, the USMC wants to “be part of the procurement.” On the contracting side, it has always been our position to attempt to accommodate where it makes sense and when it does not jeopardize our core objective of meeting the Army mission. Now in the current situation, the participation of the USMC is considerable. Their desired portion/impact has the following characteristics: (1) They would be getting about 55% of the produced systems; (2) They would be providing about 55% of the funding; (3) About 20% of the specifications are not shared between the Army and USMC, so the USMC systems would require adjustment; & (4) A small but critical portion of the USMC systems would require a major configuration change. Some other important factors: The Army has based its decision to move ahead with this acquisition based on the system being COTS or an NDI. This is not a designated joint program and there is no formal agreement between the Army and USMC (no MOA exists). There is also a question as to whether the major system configuration change desired by the USMC falls under COTS or NDI. As an Army contracting officer, I want to do the right thing and best serve the Warfighter (which includes marines). We are very much encouraged to do this. Alternatively, this is not just adding on a few extra systems for the USMC; this is slightly over half of the procurement. I (we) have already sketched out numerous legal/ regulatory pitfalls, etc., but I do not want to influence anyone. What does everyone think about this? What are some ideas on how to best resolve? -
Is there any DoD guidance or work instructions that allows for a non-developmental item (NDI) support service to qualify as a commercial item based on Definition 5 (versus Definition 6) of the commercial item definition in FAR 2.101? Previous Hypothetical Scenario: 1. Sister A signed a sole-source FFP prime contract with a DoD customer, and FAR 52.215-10 was included. 2. FAR 52.215-10 was flowed down in the inter-organizational transfer (IOT) at price with Sister B (see FAR 31.205-26). 3. Sister A performed a price analysis of Sister B's IOT based on FAR 15.401 and Table 15-2 II.A of FAR 15.408. 4. No cost data from Sister B was included in Sister's A proposal to the DoD customer because of commerciality. 5. Sister A's price analysis was included in its proposal, and it was based on PO history and an unpublished price list. 6. The PO history was not shown to be fair and reasonable, and Sister B did not provide any data of sales to the public. Current Hypothetical Approach: 1. If possible, Sister A wants to utilize any DoD guidance or work instructions to deem the NDI support services as commercial under Definition 5 instead of Definition 6 (because there is no apparent market price or catalog with any sales to the public.) 2. If possible, Sister A wants to obtain a statement from Sister B that these NDI support service are "similar" to other support services provided at the same time to the general public. (There might not be any sales data to the public provided by Sister B.) 3. If possible, Sister A wants to obtain sales data from Sister B for NDI support services provided to other federal agencies for similar services as a basis for (hopefully) an "appropriate" price analysis following the FAR "policy" outlined in FAR 15.404-1. The DoD Sample Commercial Item Checklist in Appendix B of the 08-01-2011 "Draft" Commercial Item Handbook (Version 2.0) shows NDI being grouped on page 74 with other commercial items in Part 1 prior to considering commercial services in Part 2. http://www.acq.osd.mil/dpap/cpic/draftcihandbook08012011.docx Is there anything else that Sister A in the above hypothetical approach can use in good faith to deem these NDI support services as commercial items under Definition 5 instead of Definition 6 of FAR 2.101? (I believe the definition does not provide for it.)
