41 U.S. Code § 3307 - Preference for commercial items
(a) Relationship of Provisions of Law to Procurement of Commercial Items.—
(1) This division.— Unless otherwise specifically provided, all other provisions in this division also apply to the procurement of commercial items.
(2) Laws listed in federal acquisition regulation.— A contract for the procurement of a commercial item entered into by the head of an executive agency is not subject to a law properly listed in the Federal Acquisition Regulation pursuant to section 1906 of this title.
(b) Preference.— The head of each executive agency shall ensure that, to the maximum extent practicable—
(1) requirements of the executive agency with respect to a procurement of supplies or services are stated in terms of—
(2) those requirements are defined so that commercial items or, to the extent that commercial items suitable to meet the executive agency’s needs are not available, nondevelopmental items other than commercial items may be procured to fulfill those requirements; and
(c) Implementation.— The head of each executive agency shall ensure that procurement officials in that executive agency, to the maximum extent practicable—
(1) acquire commercial items or nondevelopmental items other than commercial items to meet the needs of the executive agency;
(2) require that prime contractors and subcontractors at all levels under contracts of the executive agency incorporate commercial items or nondevelopmental items other than commercial items as components of items supplied to the executive agency;
(3) modify requirements in appropriate cases to ensure that the requirements can be met by commercial items or, to the extent that commercial items suitable to meet the executive agency’s needs are not available, nondevelopmental items other than commercial items;
(4) state specifications in terms that enable and encourage bidders and offerors to supply commercial items or, to the extent that commercial items suitable to meet the executive agency’s needs are not available, nondevelopmental items other than commercial items in response to the executive agency solicitations;
(5) revise the executive agency’s procurement policies, practices, and procedures not required by law to reduce any impediments in those policies, practices, and procedures to the acquisition of commercial items; and
(d) Market Research.—
(1) When to be used.— The head of an executive agency shall conduct market research appropriate to the circumstances—
(2) Use of results.— The head of an executive agency shall use the results of market research to determine whether commercial items or, to the extent that commercial items suitable to meet the executive agency’s needs are not available, nondevelopmental items other than commercial items are available that—
(1) In general.— The Federal Acquisition Regulation shall provide regulations to implement this section, sections 102, 103, 105, and 110 of this title, and chapter 140 of title 10.
(2) Contract clauses.—
(A) Definition.— In this paragraph, the term “subcontract” includes a transfer of commercial items between divisions, subsidiaries, or affiliates of a contractor or subcontractor.
(B) List of clauses to be included.— The regulations prescribed under paragraph (1) shall contain a list of contract clauses to be included in contracts for the acquisition of commercial end items. To the maximum extent practicable, the list shall include only those contract clauses that are—
(i) required to implement provisions of law or executive orders applicable to acquisitions of commercial items or commercial components; or
(C) Requirements of prime contractor.— The regulations shall provide that the Federal Government shall not require a prime contractor to apply to any of its divisions, subsidiaries, affiliates, subcontractors, or suppliers that are furnishing commercial items any contract clause except those that are—
(i) required to implement provisions of law or executive orders applicable to subcontractors furnishing commercial items or commercial components; or
(D) Clauses that may be used in a contract.— To the maximum extent practicable, only the contract clauses listed pursuant to subparagraph (B) may be used in a contract, and only the contract clauses referred to in subparagraph (C) may be required to be used in a subcontract, for the acquisition of commercial items or commercial components by or for an executive agency.
(3) Market acceptance.—
(A) Requirement of offerors.— The Federal Acquisition Regulation shall provide that under appropriate conditions the head of an executive agency may require offerors to demonstrate that the items offered—
(i) have achieved commercial market acceptance or been satisfactorily supplied to an executive agency under current or recent contracts for the same or similar requirements; and
(B) Regulation to provide guidance on criteria.— The Federal Acquisition Regulation shall provide guidance to ensure that the criteria for determining commercial market acceptance include the consideration of—
(4) Provisions relating to types of contracts.—
(A) Types of contracts that may be used.— The Federal Acquisition Regulation shall include, for acquisitions of commercial items—
(i) a requirement that firm, fixed price contracts or fixed price with economic price adjustment contracts be used to the maximum extent practicable;
(B) When time-and-materials or labor-hour contract may be used.— A time-and-materials or labor-hour contract may be used pursuant to the authority referred to in subparagraph (A)(iii)—
(i) only for a procurement of commercial services in a category of commercial services described in subparagraph (C); and
(ii) only if the contracting officer for the procurement—
(C) Categories of commercial services.— The categories of commercial services referred to in subparagraph (B) are as follows:
(i) Commercial services procured for support of a commercial item, as described in section 103 (5) of this title.
(ii) Any other category of commercial services that the Administrator for Federal Procurement Policy designates in the Federal Acquisition Regulation for the purposes of this subparagraph on the basis that—
(I) the commercial services in the category are of a type of commercial services that are commonly sold to the general public through use of time-and-materials or labor-hour contracts; and
(5) Contract quality requirements.— Regulations prescribed under paragraph (1) shall include provisions that—
(A) allow, to the maximum extent practicable, a contractor under a commercial items acquisition to use the existing quality assurance system of the contractor as a substitute for compliance with an otherwise applicable requirement for the Federal Government to inspect or test the commercial items before the contractor’s tender of those items for acceptance by the Federal Government;
(B) require that, to the maximum extent practicable, the executive agency take advantage of warranties (including extended warranties) offered by offerors of commercial items and use those warranties for the repair and replacement of commercial items; and
Source(Pub. L. 111–350, § 3,Jan. 4, 2011, 124 Stat. 3754.)
|Revised Section||Source (U.S. Code)||Source (Statutes at Large)|
|June 30, 1949, ch. 288, title III, §§ 314, 314B, as added Pub. L. 103–355, title VIII, §§ 8201, 8203, Oct. 13, 1994, 108 Stat. 3394.|
|Pub. L. 103–355, title VIII, § 8002, Oct. 13, 1994, 108 Stat. 3386; Pub. L. 108–136, title XIV, 1432, Nov. 24, 2003, 117 Stat. 1672.|
Subsection (a)(1) is substituted for 41 U.S.C. 264(a) for clarity.
In subsection (e), the text of section 8002(f) of the Federal Acquisition Streamlining Act of 1994 (Public Law 103–355, 41 U.S.C. 264 note) is omitted as obsolete.
In subsection (e)(2)(B)(i) and (C)(i), the words “as the case may be” are omitted as unnecessary.