41 U.S. Code § 103 - Commercial item

In this subtitle, the term “commercial item” means—
(1) an item, other than real property, that—
(A)
is of a type customarily used by the general public or by nongovernmental entities for purposes other than governmental purposes; and
(B)
has been sold, leased, or licensed, or offered for sale, lease, or license, to the general public;
(2) an item that—
(A)
evolved from an item described in paragraph (1) through advances in technology or performance; and
(B)
is not yet available in the commercial marketplace but will be available in the commercial marketplace in time to satisfy the delivery requirements under a Federal Government solicitation;
(3) an item that would satisfy the criteria in paragraph (1) or (2) were it not for—
(A)
modifications of a type customarily available in the commercial marketplace; or
(B)
minor modifications made to meet Federal Government requirements;
(4)
any combination of items meeting the requirements of paragraph (1), (2), (3), or (5) that are of a type customarily combined and sold in combination to the general public;
(5) installation services, maintenance services, repair services, training services, and other services if—
(A)
those services are procured for support of an item referred to in paragraph (1), (2), (3), or (4), regardless of whether the services are provided by the same source or at the same time as the item; and
(B)
the source of the services provides similar services contemporaneously to the general public under terms and conditions similar to those offered to the Federal Government;
(6)
services offered and sold competitively, in substantial quantities, in the commercial marketplace based on established catalog or market prices for specific tasks performed or specific outcomes to be achieved and under standard commercial terms and conditions;
(7)
any item, combination of items, or service referred to in paragraphs (1) to (6) even though the item, combination of items, or service is transferred between or among separate divisions, subsidiaries, or affiliates of a contractor; or
(8)
a nondevelopmental item if the procuring agency determines, in accordance with conditions in the Federal Acquisition Regulation, that the item was developed exclusively at private expense and has been sold in substantial quantities, on a competitive basis, to multiple State and local governments or to multiple foreign governments.
(Pub. L. 111–350, § 3, Jan. 4, 2011, 124 Stat. 3679; Pub. L. 115–91, div. A, title VIII, § 847(a), Dec. 12, 2017, 131 Stat. 1487.)

Historical and Revision Notes

Revised

Section

Source (U.S. Code)

Source (Statutes at Large)

103

41:259(c)(11).

June 30, 1949, ch. 288, title III, § 309(c)(11), as added Pub. L. 98–369, title VII, § 2711(a)(3), July 18, 1984, 98 Stat. 1180; Pub. L. 98–577, title V, § 504(a)(4), Oct. 30, 1984, 98 Stat. 3086; Pub. L. 103–355, title I, § 1551, Oct. 13, 1994, 108 Stat. 3299.

 

41:264a (“commercial item”).

June 30, 1949, ch. 288, title III, § 314A (“commercial item”), as added Pub. L. 103–355, title VIII, § 8202, Oct. 13, 1994, 108 Stat. 3394.

 

41:403(12).

Pub. L. 93–400, § 4(12), as added Pub. L. 103–355, title VIII, § 8001(a), Oct. 13, 1994, 108 Stat. 3385; Pub. L. 104–106, title XLII, § 4204, Feb. 10, 1996, 110 Stat. 655; Pub. L. 106–65, title VIII, § 805, Oct. 5, 1999, 113 Stat. 705; Pub. L. 108–136, title XIV, § 1433, Nov. 24, 2003, 117 Stat. 1673.

Repeal and Reenactment of Section

Pub. L. 115–232, div. A, title VIII, § 836(a)(1), (h), Aug. 13, 2018, 132 Stat. 1859, 1874, provided that, effective Jan. 1, 2020, subject to savings provision, this section is repealed and a new section 103 is enacted to read as follows:

§ 103. Commercial product

In this subtitle, the term “commercial product”

means any of the following:

(1) A product, other than real property, that—

(A) is of a type customarily used by the general public or by nongovernmental entities for purposes other than governmental purposes; and

(B) has been sold, leased, or licensed, or offered for sale, lease, or license, to the general public.

(2) A product that—

(A) evolved from a product described in paragraph (1) through advances in technology or performance; and

(B) is not yet available in the commercial marketplace but will be available in the commercial marketplace in time to satisfy the delivery requirements under a Federal Government solicitation.

(3) A product that would satisfy the criteria in paragraph (1) or (2) were it not for—

(A) modifications of a type customarily available in the commercial marketplace; or

(B) minor modifications made to meet Federal Government requirements.

(4) Any combination of products meeting the requirements of paragraph (1), (2), or (3) that are of a type customarily combined and sold in combination to the general public.

(5) A product, or combination of products, referred to in paragraphs (1) through (4), even though the product, or combination of products, is transferred between or among separate divisions, subsidiaries, or affiliates of a contractor.

(6) A nondevelopmental item if the procuring agency determines, in accordance with conditions in the Federal Acquisition Regulation, that—

(A) the product was developed exclusively at private expense; and

(B) has been sold in substantial quantities, on a competitive basis, to multiple State and local governments or to multiple foreign governments.

Amendments

2017—Par. (8). Pub. L. 115–91 inserted “or to multiple foreign governments” before period at end.

Effective Date of Repeal

Section repealed effective Jan. 1, 2020, subject to a savings provision, see section 836(h) of Pub. L. 115–232, set out as an Effective Date of 2018 Amendment; Savings Provision note under section 453b of Title 6, Domestic Security.

Construction of 2017 Amendment

Pub. L. 115–91, div. A, title VIII, § 847(b), Dec. 12, 2017, 131 Stat. 1487, provided that:

“Nothing in the amendment made by subsection (a) [amending this section] shall affect the meaning of the term ‘commercial item’ for purposes of subsection (a)(5) of section 2464 of title 10, United States Code, or any requirement under subsection (a)(3) or subsection (c) of such section.”