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  • Question

    How is it determined which is the better price paid by the government? If it's determined the non-commercial price is better should the commercial widget contract be modified? How do the contract requirements drive the determination whether the widget is considered non-commercial or commercial? Is it possible to have both determinations for the same widget on different contracts?


    Answer

    You state that the contractor sells the widget as a commercial item on one contract and as a non-commercial item on another, but that's not the proper way to view the scenario. It's ultimately the Government contracting officer that makes the commercial item determination. While many contracting officers would agree on the categorization for most items, there are some items for which there is a gray area as to whether an item truly meets the FAR Part 2 definition for a commercial item. I don't know if modifying a contract for a commercial item simply to re-categorize it as a non-commercial item is realistic, as different procedures and clauses were and are being used for acquisition of the commercial item. So yes— it is possible (though not desirable) to have both determinations for the same widget on different contracts.

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