Government Contracts Acquisition Didn’t Require Use of Commercial Items Procedures
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Wednesday, September 2, 2020

Acquisition Didn’t Require Use of Commercial Items Procedures

By Government Contracts Editorial Staff

The Comptroller General rejected a challenge to the government’s decision not to use FAR Part 12 commercial items procedures to acquire system integration services, because the government had a reasonable basis for consolidating commercial and non-commercial items in a single task order procurement. The government initially determined the procurement was commercial because “all services … [were] available to the general public and … offered through commercial companies.” However, after reviewing responses to a sources-sought notice, the contracting officer concluded the procurement was non-commercial because “[n]o singular commercial solution addresse[d] all capability areas ….” The CO selected a multiple-award indefinite-delivery, indefinite-quantity contract for systems, engineering, technology, and innovation as the procurement vehicle because the contract was held by four of six capable respondents and there was “immediate cost-savings” due to no contract access fee. The government then issued a request for task order proposals under FAR 16.505 to all holders of the IDIQ contract. According to the protester, the RFTOP improperly consolidated commercial and non-commercial requirements in a manner that unduly restricted competition.

No Need to Separate. The protester failed to establish the decision to consolidate the requirements was clearly unreasonable. The record showed the government decided to procure the requirement as one single integrator contract to minimize risk, scale adoption of artificial intelligence, and provide efficiencies in cyber security. The program’s branch chief explained the integrator was a central function of the procurement that could not be separated from the other functions, and the government identified considerable efficiencies with a consolidated procurement in terms of obtaining authorizations for the AI/machine learning platforms. Further, the government found a benefit in the integrator providing a single point of customer support for all AI software, as opposed to separate customer support for each software program. In the Comptroller General’s view, some of the individual components would likely be considered commercial items if acquired individually. However, 10 USC 2377, which instructs the government to consider modification of requirements or of the commercial items themselves does not, in every case, require the government to separate out all potentially commercial items from a procurement. (C3.ai, Inc., 35 CGEN ¶116,901)

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