DoD Issues Draft Guidebook for Acquiring Commercial Items

“Commercial
item” purchases are often favored both by the Government and by contractors, as
they are subject to fewer regulations and may be procured more quickly, using
streamlined Federal Acquisition Regulation (“FAR”) Part 12 procedures.  Recently enacted laws encourage this strong
preference for the acquisition of commercial supplies and services.  On February 24, 2017, the Department of
Defense (“DoD”) issued a draft Guidebook for Acquiring Commercial
Items
(“Guidebook”).

The draft Guidebook is comprised of two parts – Part A:
Commercial Item Determination and Part B: Pricing Commercial Items.  Part
A
of the Guidebook proposes processes and decision trees, and some examples
of their applications, for DoD personnel to use in assessing whether a product
or service qualifies as a “commercial item” under FAR 2.101 “Commercial item”.   Part B of the Guidebook proposes
processes and decision trees for conducting a price analysis to determine the
appropriateness of a contractor’s proposed commercial item pricing.

Takeaways:

  • The Guidebook proposes a road map for the DoD to
    use to determine whether a particular product or service will qualify as a “commercial
    item.”
  • Once DoD issues a Commercial Item Determination
    (“CID”), it can be used in future DoD procurements.
  • The Guidebook, once issued, should be of
    significant benefit to contractors, too. It can be used to guide contractors with
    regard to what they need to provide to DoD to demonstrate that their product or
    service, or the product or service of their subcontractor(s), qualifies as a “commercial
    item.”

The period for submission of comments on the Guidebook has
been extended; comments are due on or before May 1, 2017.

If you have
questions about this draft Guidebook, or are interested in learning more about
whether a particular product or service might qualify as a “commercial
item” subject to more streamlined acquisition requirements and processes, please
contact your Fortney & Scott attorney, or Susan Warshaw Ebner.