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  • Question

    Does the sale qualify as a commercial sale per the definition in Federal Acquisition Regulation, FAR 2.101 Commercial Item, when selling the same or similar item to the United States Government? If the company were to sell the same or similar items to the U.S. Government, the company should be able to claim the commercial price exemption for cost or pricing data, at FAR 15.403-1(b)(3)?


    Answer

    FAR 15.403-1(c)(3) leaves this determination to the Government contracting officer, who has the final word. That being said, it appears that sales to one or more foreign governments does not qualify for the commercial item exception to the requirement for certified cost or pricing data. The commercial item definition in FAR Part 2 includes non-developmental items sold to "multiple state and local governments," but sales to foreign governments clearly do not fit that definition.

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