When FAR part 12 first came out in the mid-90s, contracting professionals went a little crazy with the concept. “Let’s buy everything as a commercial item or service” became the mantra. It was quick and easy and didn’t require a cumbersome amount of file documentation so it became the “go to” contracting process. At the time I was in operational contracting where a large percentage of the items and services we purchased were, in fact, commercial in nature. We bought everything from generators to test tubes to janitorial services to aircraft windscreen testing – all items and services that were used in the commercial market place.
However there were systems contracting offices that were purchasing military aircraft as commercial items. At the time it was seen as ground-breaking and innovative. While aircraft are used in commercial enterprises, military aircraft tend to be very specialized in their use and configuration so were they ever really commercial?
Now contracting officers are being required to take a harder look at commercial items and services. COs must include extensive file documentation to ensure an item really meets the definition of a commercial. If you want to read the really long and detailed definition, it’s in FAR 2.101. The short version is that it’s any item or service offered for sale to the general public. Pursuant to DFARS 202.101 and Pub. L. 110-181, “General public” does not include Federal, state, local, or foreign governments. This is significant because in the early days COs were using sales to other government entities to “prove” commerciality.
Now contracting officers cannot rely on previous commercial item determinations when they need to procure the same item or service, nor can they rely solely on the contractor’s assertion of commerciality.
Ultimately the CO is the one held responsible for ensuring that any commercial item determination can stand up to scrutiny during the review process. But if you are a prime contractor claiming commerciality, be prepared to substantiate that claim for your items and services, as well as those from any subcontractors.