Are Drone Guns Commercial Products?
Part 2 of the Federal Acquisition Regulations is where you can find the "definitions" of most things in federal procurement; it's an underappreciated part of the FAR!
Some of the definitions in Part 2 are extremely specific things ("Energy-efficient standby power devices") and others involve broad, abstract concepts ("National defense"). A glance over the list of definitions reveals the wide range of things that might come up in the life of a federal acquisition professional.
Although most of the definitions feel like common sense, when you read them, you should remind yourself that, in fact, the FAR is a legal document and sometimes definitions don't mean what you think they mean.
One definition in Part 2 has been particularly thorny over the years: the definition of "commercial" products and services. I won't go too deep into the history of the definition of commercial buying or why it matters here, but suffice to say that it's complicated. In fact, some really smart people wrote a few years ago that "[t]he FAR has been amended more than 100 times to address various aspects of commercial buying, making commercial buying policies more difficult to navigate."
Defining whether something is commercial or not, it turns out, is a tricky thing. Ready to try yourself? Here we go.
Pop quiz: Is a drone gun that cannot be legally sold in the United States to any entity other than the United States Government a commercial product?
That was the subject of a recent decision from the Court of Federal Claims.
Now, before getting into the legal side of things, you may be wondering: what is a "drone gun?" According to the court, it is a "handheld Counter Unmanned Aerial Surveillance (“C-UAS”) system." If you are still confused, here's a video, complete with a stress-inducing soundtrack and a bad guy in a balaclava.[1]
At the end of the video, there is a disclaimer (although I removed a few sentences at the end) about the sale and use of the drone gun:
DRONEGUN MKIII AND OTHER DRONESHIELD'S COUNTERMEASURE PRODUCTS HAVE NOT BEEN AUTHORIZED AS REQUIRED BY THE UNITED STATES FEDERAL COMMUNICATIONS COMMISSION ("FCC"). THESE DEVICES ARE NOT, AND MAY NOT BE, OFFERED FOR SALE OR LEASE, OR SOLD OR LEASED, IN THE UNITED STATES, OTHER THAN TO THE UNITED STATES GOVERNMENT, ITS AGENCIES, AND ITS PROPERLY DELEGATED REPRESENTATIVES, UNTIL SUCH AUTHORIZATION IS OBTAINED. THE USE OF THESE PRODUCTS IN THE UNITED STATES BY OTHER PERSONS OR ENTITIES, INCLUDING, IN CERTAIN CIRCUMSTANCES, STATE OR LOCAL GOVERNMENT AGENCIES, IS PROHIBITED BY FEDERAL LAW.
You literally can't buy this thing. It's against the law. So, is it a commercial product?
It turns out that the answer to that question was important because Defense Logistics Agency used an IDIQ to buy these drone guns, but that IDIQ only covered commercial products. If the products were commercial, the IDIQ covered the purchase and the protest would be barred because the contract award was less than $10 million. If, however, the products were not commercial, the purchase would be outside of the IDIQ's scope, and therefore subject to protest.
Happily, the current definition of a "commercial product" is in the FAR and the definition was the subject of a recent revision to the FAR. I won't reprint the definitions, but there are 6 categories of things that count as "commercial products." Take a look if you're so inclined.
The agency and court were so inclined. They dutifully read the FAR's definitions and concluded: "yes, yes a drone gun that is not available for sale in the United States is a commercial product."
How? Even though the drone gun isn't sold in the United States and disclaimer notwithstanding, the government concluded that the FCC limitation "in and of itself does not keep the item from being 'of a type' sold to the general public with modifications and/or minor modifications made to meet Federal Government requirements, and therefore commercial, as there are many commercial products that cannot be sold or utilized without Government authorization in advance." And, alternatively, the government "examined DroneShield’s sale of the DG MKIII to the general public and foreign governments in substantial quantities" and therefore fell under the definition of "a nondevelopmental item."
In other words, the government concluded that because other governments buy these drone guns and because the drone guns were "of a type" of things that are generally available for purchase by the public, the drone guns were commercial. It's right there in the definitions.
End of story.
Today, despite the complicated history of the definition of "commercial products," this case reveals that the current definition can be pretty expansive indeed. As long as other governments are buying a thing as a "nondevelopmental item" and as long as that thing is "of a type" that is commercial, an agency can treat that thing as commercial.
It may be a broad definition and it may not be common sense. But it's the law.[2] And them's the breaks!
[1] And a cliffhanger of an ending! What happens next?! Does the drone-gun-toting protaganist catch the balaclava-clad antagonist? We will have to wait for the next installment, I guess.
[2] For now anyway. It's been amended 100 times before, after all!