Preparing a Commercial Item D&F

A Determination and Findings (D&F) for commercial items is a written document that states the contracting officer has determined that what you are acquiring meets the definition of a "commercial product" or "commercial service" under FAR 2.101. It is required for acquisitions above the Simplified Acquisition Threshold (SAT) under DFARS 212.102.

But why does this determination matter? Why can't you just buy the thing?

The determination matters because the Government has certain rights when buying non-commercial items that it does not have when buying commercial ones. The Truth in Negotiations Act (TINA) kicks in for non-commercial acquisitions, the Government can require certified cost or pricing data, and the rules are written in a way that establishes fair negotiations with stronger government protections.

When you determine something is commercial, the Government gives up those rights. You revert to purchasing guidelines similar to what the commercial market uses. No certified cost or pricing data. Less visibility into the contractor's cost structure. Fewer negotiation levers.

Now put yourself in the contractor's shoes. Do you want to give the Government certified cost or pricing data if you don't have to? Absolutely not. It is expensive to obtain, it comes with legal risk (the data has to be accurate, current, and complete), and it gives the Government leverage in negotiations that the contractor would rather not hand over.

So the D&F exists because the Government is making a consequential decision. When you sign that determination, you are saying: we are giving up certain procurement protections because this item or service is available commercially and should be purchased under commercial rules. That decision also drives which clauses go into your contract (the 52.212 series instead of the full FAR clause set). It is not a formality. It changes the entire structure of your acquisition.

The D&F answers a simple question: What makes this item or service commercial according to the FAR definition, and where is the evidence? If you cannot answer that question clearly, you do not have a valid D&F.

The FAR Overhaul (RFO) restructured how the FAR treats commercial acquisitions. This is important because the rules have shifted.

Old way (before RFO): FAR Part 12 covered commercial items. FAR Part 13 (Simplified Acquisition Procedures) also covered commercial items. You had two pathways.

New way (after RFO): FAR Part 12 governs commercial products and services. FAR Part 13 is now for non-commercial items only. If you are buying something commercial, you are in Part 12 territory, period.

This matters because if you're writing a commercial item D&F, you're justifying an acquisition under Part 12, not Part 13. The procedures are different. The authorities are different. And if your item is actually non-commercial, Part 13 is where your simplified procedures live now.

Worth noting: FAR Part 12 now has its own simplified procedures under FAR 12.201-1. So commercial acquisitions are not left without a streamlined path. The simplified procedures just live in a different part of the FAR than they used to.

You find a template. You open it. You see a few blank fields: "Item description," "Justification," "Approval." You fill in the item description (e.g., "commercial copier"), you write something like "This is a commercial item because it meets the definition of a commercial product in FAR 2.101," and you submit it for approval.

That D&F does not work. It does not explain anything. It tells nobody why this is commercial. It does not tell the reviewer where you looked for evidence or what you found.

What a real D&F should contain:

• What you are buying. Be specific. Not "computer system." Say "Dell OptiPlex 7060 desktop workstations, Model 7060, with standard operating system and factory-installed software, to be delivered by [date]."
• Which FAR 2.101 definition paragraph it falls under. FAR 2.101 has six different definition paragraphs for commercial products and two for commercial services. Which one applies? Why that one and not another? (See the full definitions below.)
• Your evidence. This is the heart of it. Where did you look? What did you find? Did you contact vendors? What did they tell you? Did you check GSA Advantage or GSA Schedules? Did you review catalogs? Do they sell it to the commercial public? Are there published price lists?

The D&F should tell the story. Someone reading it should follow your research, understand your findings, and agree with your conclusion. If they have questions about how you reached your determination, the answers should be in the document.

The FAR 2.101 Definitions: Know Which One You're Using

You cannot write a D&F without citing a specific definition paragraph. Here they are:

Commercial Product (6 definitions):

Commercial Service (2 definitions):

Not all commercial item D&Fs require the same level of approval. Some need just your signature. Others need approval one level above you.

One-level-above approval is required when using these FAR 2.101 definition paragraphs for commercial products:

• Paragraph (1)(ii): Items sold in substantial quantities in the commercial marketplace where the buyer determines it is an item of a type offered and sold to the general public
• Paragraph (3): Items of a type offered and sold to the general public or commercial users that require modification to meet the buyer's needs
• Paragraph (4): Combination of items that are themselves commercial products or commercial services
• Paragraph (6): Services offered and sold competitively in substantial quantities to the general public in the commercial marketplace

For commercial services, one-level-above approval is required for paragraph (2): Services offered and sold competitively in substantial quantities to the general public in the commercial marketplace.

Why the higher approval? These particular paragraphs involve more subjective judgment, especially the "of a type" determinations. They require more careful scrutiny because the connection between what you are buying and what is sold commercially might require interpretation.

Nontraditional defense contractor exception: If you are acquiring supplies or services from a nontraditional defense contractor, you do not need a formal commercial item D&F. The statute allows nontraditional contractors' supplies and services to be treated as commercial without the determination. But you should still document this in your file so the next person knows why no D&F is present.

If you have previously acquired this item or service under FAR Part 12 (as a commercial acquisition), that prior contract IS your prior determination. You do not have to repeat the analysis.

DFARS 212.102 allows you to reference a prior commercial item determination. If your organization bought this same thing two years ago under a Part 12 contract, you can cite that contract and say "the item was previously determined to be commercial and acquired under FAR Part 12 in contract [number], dated [date]." That satisfies the requirement.

But there is a catch: The determination can be challenged. DFARS 212.102(d) provides that if the commercial determination is questioned, the Head of the Contracting Activity (HCA) will review it. The HCA has 30 days to complete the review and issue a written determination. If the HCA agrees with you, the acquisition proceeds. If not, you may need to restart the process or consider non-commercial procedures.

The lesson: document your prior determination carefully. If you're relying on a prior contract, keep that contract accessible in your file so that if anyone questions the determination later, the evidence is available.