DoD's Proposal Adequacy Checklist - A Clarification from DoD

As we work through and gain more experience with DoD's new proposal adequacy checklist, we find elements that just don't make sense. Checklist Item No. 19 is one of those.

Checklist Item No. 19, one of three questions falling under the subheading "Exceptions to Certified Cost or Pricing Data, asks, "Does the proposal include a price analysis for all commercial items offered that are not available to the general public?". The source for this requirement is specified as FAR 15.408, Table 15-2, Section II, Paragraph A.

If anyone checks the reference for this requirement, they'll be confused because FAR 15.408, Table `5-1, Section II, Paragraph A says nothing about providing price analyses of commercial items offered but not available to the general public. It states:

Provide a consolidated priced summary of individual material quantities included in the various tasks, orders, or contract line items being proposed and the basis for pricing (vendor quotes, invoice prices, etc.). Include raw materials, parts, components, assemblies and the services to be produced or performed by others. For all items proposed, identify the item and show the source, quantity, and price. Conduct price analyses of all subcontractor proposals. Conduct cost analyses for all subcontracts when certified cost or pricing data are submitted by the subcontractor. Include these analyses as part of your own cost or pricing data submissions for subcontracts expected to exceed the appropriate threshold in FAR 15.403-4. Submit the subcontractor certified cost or pricing data and data other than certified cost or pricing data as part of your own certified cost or pricing data as required in paragraph II.A.(2) of this table. These requirements also apply to all subcontractors if required to submit certified cost or pricing data.

There's nothing in the foregoing that requires contractors to include price analysis for commercial items that are not available to the public.

We need to go back to the definition of "commercial item" in FAR 2.101 to find out what DoD means by commercial items not available to the public. Herein we find that "commercial items" includes any item, other than real property, that is of a type customarily used for nongovernmental purposes and that has been offered for sale, lease, or license to the general public. It also includes items that meet this definition but for minor modification of a type not customarily available in the commercial marketplace made to meed Federal Government requirements. Minor modifications cannot significantly alter the nongovernmental function or essential physical characteristics of an item or component, or change the purpose of a process.

So, what gives? When asked to clarify, DoD responded:

This is not a new requirement; it is a reminder that a price analysis is still required when certified cost or pricing data are not required.

Well, that's true of all costs. Contractors must be able to demonstrate the reasonableness of their proposed costs regardless of the basis of estimate. Why single out commercial items not available to the public and then why give it a nonsensical reference as authority? There is no FAR requirement to submit these justifications with the proposal and the omission certainly doesn't make the proposal inadequate.

Perhaps this confusion is why NASA left this question out of its draft proposal adequacy checklist.