10 USC Ch. 247: PROCUREMENT OF COMMERCIAL PRODUCTS AND COMMERCIAL SERVICES

From Title 10—ARMED FORCESSubtitle A—General Military LawPART V—ACQUISITIONSubpart C—Contracting Methods and Contract Types

CHAPTER 247—PROCUREMENT OF COMMERCIAL PRODUCTS AND COMMERCIAL SERVICES

Sec.

3451.

Definitions.

3452.

Relationship of other provisions of law to procurement of commercial products and commercial services.

3453.

Preference for commercial products and commercial services.

3455.

Procurement of a major weapon system as a commercial product: requirement for prior determination by Secretary of Defense and notification to Congress.

3456.

Commercial product and commercial service determinations by Department of Defense.

3457.

Treatment of certain products and services as commercial products and commercial services.

3458.

Authority to acquire innovative commercial products and commercial services using general solicitation competitive procedures.

Editorial Notes

Prior Provisions

A prior chapter 247 "ACQUISITION OF COMMERCIAL ITEMS", as added by Pub. L. 115–232, div. A, title VIII, §801(a), Aug. 13, 2018, 132 Stat. 1827, and consisting of reserved section 3451, was repealed by Pub. L. 116–283, div. A, title XVIII, §1821(a)(1), Jan. 1, 2021, 134 Stat. 4194.

Amendments

2021—Pub. L. 117–81, div. A, title VIII, §803(b)(2), Dec. 27, 2021, 135 Stat. 1816, added item 3458.

Pub. L. 116–283, div. A, title XVIII, §1821(a)(1), (3), (b)(1)(B), (7)(C), Jan. 1, 2021, 134 Stat. 4194–4196, transferred chapter 140 of this title to this chapter, renumbered items 2375, 2376, 2377, 2379, 2380, and 2380a as 3452, 3451, 3453, 3455, 3456, and 3457, respectively, moved item 3451 so as to precede item 3452, and struck out item 2380b "Treatment of commingled items purchased by contractors as commercial products".

Statutory Notes and Related Subsidiaries

Procurement of Commercial Services

Pub. L. 110–181, div. A, title VIII, §805, Jan. 28, 2008, 122 Stat. 212, as amended by Pub. L. 110–417, [div. A], title X, §1061(b)(4), Oct. 14, 2008, 122 Stat. 4613; Pub. L. 113–291, div. A, title X, §1071(b)(2)(A), Dec. 19, 2014, 128 Stat. 3506; Pub. L. 115–232, div. A, title VIII, §836(f)(6), Aug. 13, 2018, 132 Stat. 1871, provided that:

"(a) Regulations Required.—Not later than 180 days after the date of the enactment of this Act [Jan. 28, 2008], the Secretary of Defense shall modify the regulations of the Department of Defense for the procurement of commercial services for or on behalf of the Department of Defense.

"(b) Applicability of Commercial Procedures.—

"(1) Services of a type sold in marketplace.—The regulations modified pursuant to subsection (a) shall ensure that services that are not offered and sold competitively in substantial quantities in the commercial marketplace, but are of a type offered and sold competitively in substantial quantities in the commercial marketplace, may be treated as commercial services for purposes of section 2306a of title 10, United States Code [see 10 U.S.C. 3701 et seq.] (relating to truth in negotiations), only if the contracting officer determines in writing that the offeror has submitted sufficient information to evaluate, through price analysis, the reasonableness of the price for such services.

"(2) Information submitted.—To the extent necessary to make a determination under paragraph (1), the contracting officer may request the offeror to submit—

"(A) prices paid for the same or similar commercial services under comparable terms and conditions by both government and commercial customers; and

"(B) if the contracting officer determines that the information described in subparagraph (A) is not sufficient to determine the reasonableness of price, other relevant information regarding the basis for price or cost, including information on labor costs, material costs, and overhead rates.

"(c) Time-and-Materials Contracts.—

"(1) Commercial services acquisitions.—The regulations modified pursuant to subsection (a) shall ensure that procedures applicable to time-and-materials contracts and labor-hour contracts for commercial service acquisitions may be used only for the following:

"(A) Services procured for support of a service, as described in section 103a(1) of title 41, United States Code.

"(B) Emergency repair services.

"(C) Any other commercial services only to the extent that the head of the agency concerned approves a determination in writing by the contracting officer that—

"(i) the services to be acquired are commercial services as defined in section 103a(2) of title 41, United States Code;

"(ii) if the services to be acquired are subject to subsection (b), the offeror of the services has submitted sufficient information in accordance with that subsection;

"(iii) such services are commonly sold to the general public through use of time-and-materials or labor-hour contracts; and

"(iv) the use of a time-and-materials or labor-hour contract type is in the best interest of the Government.

"(2) Non-commercial services acquisitions.—Nothing in this subsection shall be construed to preclude the use of procedures applicable to time-and-materials contracts and labor-hour contracts for non-commercial service acquisitions for the acquisition of any category of services."

Plan for Restricting Government-Unique Contract Clauses on Commercial Contracts

Pub. L. 110–181, div. A, title VIII, §821, Jan. 28, 2008, 122 Stat. 226, as amended by Pub. L. 113–291, div. A, title X, §1071(b)(2)(B), Dec. 19, 2014, 128 Stat. 3506; Pub. L. 115–232, div. A, title VIII, §836(f)(3), Aug. 13, 2018, 132 Stat. 1871; Pub. L. 116–92, div. A, title IX, §902(41), Dec. 20, 2019, 133 Stat. 1547, provided that:

"(a) Plan.—The Under Secretary of Defense for Acquisition and Sustainment shall develop and implement a plan to minimize the number of government-unique contract clauses used in commercial contracts by restricting the clauses to the following:

"(1) Government-unique clauses authorized by law or regulation.

"(2) Any additional clauses that are relevant and necessary to a specific contract.

"(b) Commercial Contract.—In this section:

"(1) The term 'commercial contract' means a contract awarded by the Federal Government for the procurement of a commercial product or a commercial service.

"(2) The term 'commercial product' has the meaning provided by section 103 of title 41, United States Code.

"(3) The term 'commercial service' has the meaning provided by section 103a of title 41, United States Code."

§3451. Definitions

In this chapter:

(1) The terms "commercial product", "commercial service", "nondevelopmental item", "component", and "commercial component" have the meanings provided in sections 103, 103a, 110, 105, and 102, respectively, of title 41.

(2) The term "head of an agency" means the Secretary of Defense, the Secretary of Homeland Security, and the Administrator of the National Aeronautics and Space Administration.

(3) The term "agency" means the Department of Defense, the Coast Guard, and the National Aeronautics and Space Administration.

(Added Pub. L. 103–355, title VIII, §8103, Oct. 13, 1994, 108 Stat. 3390, §2376; amended Pub. L. 107–107, div. A, title X, §1048(a)(19), Dec. 28, 2001, 115 Stat. 1223; Pub. L. 107–296, title XVII, §1704(b)(1), Nov. 25, 2002, 116 Stat. 2314; Pub. L. 111–350, §5(b)(22), Jan. 4, 2011, 124 Stat. 3844; Pub. L. 115–232, div. A, title VIII, §836(d)(2), Aug. 13, 2018, 132 Stat. 1866; renumbered §3451 and amended Pub. L. 116–283, div. A, title XVIII, §1821(a)(2), (b)(1)(A), Jan. 1, 2021, 134 Stat. 4195.)

Editorial Notes

Prior Provisions

A prior section 3451, act Aug. 10, 1956, ch. 1041, 70A Stat. 197, provided that an officer who is promoted to a temporary grade is considered to have accepted his promotion on the date of the order announcing it, unless he expressly declines the promotion, prior to repeal by Pub. L. 96–513, title II, §207, title VII, §701, Dec. 12, 1980, 94 Stat. 2884, 2955, effective Sept. 15, 1981.

Amendments

2021—Pub. L. 116–283, §1821(b)(1)(A), transferred this section so as to precede section 3452 and appear at the beginning of this chapter.

Pub. L. 116–283, §1821(a)(2), renumbered section 2376 of this title as this section.

2018—Par. (1). Pub. L. 115–232 substituted "terms 'commercial product', 'commercial service'," for "terms 'commercial item'," and "sections 103, 103a, 110, 105, and 102, respectively, of title 41" for "chapter 1 of title 41".

2011—Par. (1). Pub. L. 111–350 substituted "chapter 1 of title 41" for "section 4 of the Office of Federal Procurement Policy Act (41 U.S.C. 403)".

2002—Par. (2). Pub. L. 107–296 substituted "of Homeland Security" for "of Transportation".

2001—Par. (1). Pub. L. 107–107 inserted "(41 U.S.C. 403)" after "section 4 of the Office of Federal Procurement Policy Act".

Statutory Notes and Related Subsidiaries

Effective Date of 2021 Amendment

Amendment by Pub. L. 116–283 effective Jan. 1, 2022, with additional provisions for delayed implementation and applicability of existing law, see section 1801(d) of Pub. L. 116–283, set out as a note preceding section 3001 of this title.

Effective Date of 2018 Amendment

Amendment by Pub. L. 115–232 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.

Effective Date of 2002 Amendment

Amendment by Pub. L. 107–296 effective on the date of transfer of the Coast Guard to the Department of Homeland Security, see section 1704(g) of Pub. L. 107–296, set out as a note under section 101 of this title.

§3452. Relationship of other provisions of law to procurement of commercial products and commercial services

(a) Applicability of Government-wide Statutes.—(1) No contract for the procurement of a commercial product or commercial service entered into by the head of an agency shall be subject to any law properly listed in the Federal Acquisition Regulation pursuant to section 1906(b) of title 41.

(2) No subcontract under a contract for the procurement of a commercial product or commercial service entered into by the head of an agency shall be subject to any law properly listed in the Federal Acquisition Regulation pursuant to section 1906(c) of title 41.

(3) No contract for the procurement of a commercially available off-the-shelf item entered into by the head of an agency shall be subject to any law properly listed in the Federal Acquisition Regulation pursuant to section 1907 of title 41.

(b) Applicability of Defense-unique Statutes to Contracts for Commercial Products and Commercial Services.—(1) The Defense Federal Acquisition Regulation Supplement shall include a list of defense-unique provisions of law and of contract clause requirements based on government-wide acquisition regulations, policies, or executive orders not expressly authorized in law that are inapplicable to contracts for the procurement of commercial products and commercial services. A provision of law or contract clause requirement properly included on the list pursuant to paragraph (2) does not apply to purchases of commercial products and commercial services by the Department of Defense. This section does not render a provision of law or contract clause requirement not included on the list inapplicable to contracts for the procurement of commercial products and commercial services.

(2) A provision of law or contract clause requirement described in subsection (e) that is enacted after October 13, 1994, shall be included on the list of inapplicable provisions of law and contract clause requirements required by paragraph (1) unless the Under Secretary of Defense for Acquisition and Sustainment makes a written determination that it would not be in the best interest of the Department of Defense to exempt contracts for the procurement of commercial products and commercial services from the applicability of the provision or contract clause requirement.

(c) Applicability of Defense-unique Statutes to Subcontracts for Commercial Products and Commercial Services.—(1) The Defense Federal Acquisition Regulation Supplement shall include a list of provisions of law and of contract clause requirements based on government-wide acquisition regulations, policies, or executive orders not expressly authorized in law that are inapplicable to subcontracts under a Department of Defense contract or subcontract for the procurement of commercial products and commercial services. A provision of law or contract clause requirement properly included on the list pursuant to paragraph (2) does not apply to those subcontracts. This section does not render a provision of law or contract clause requirement not included on the list inapplicable to subcontracts under a contract for the procurement of commercial products and commercial services.

(2) A provision of law or contract clause requirement described in subsection (e) shall be included on the list of inapplicable provisions of law and contract clause requirements required by paragraph (1) unless the Under Secretary of Defense for Acquisition and Sustainment makes a written determination that it would not be in the best interest of the Department of Defense to exempt subcontracts under a contract for the procurement of commercial products and commercial services from the applicability of the provision or contract clause requirement.

(3) In this subsection, the term "subcontract" includes a transfer of commercial products and commercial services between divisions, subsidiaries, or affiliates of a contractor or subcontractor. The term does not include agreements entered into by a contractor for the supply of commodities that are intended for use in the performance of multiple contracts with the Department of Defense and other parties and are not identifiable to any particular contract.

(4) This subsection does not authorize the waiver of the applicability of any provision of law or contract clause requirement with respect to any first-tier subcontract under a contract with a prime contractor reselling or distributing commercial products and commercial services of another contractor without adding value.

(d) Applicability of Defense-unique Statutes to Contracts for Commercially Available, Off-the-shelf Items.—(1) The Defense Federal Acquisition Regulation Supplement shall include a list of provisions of law and of contract clause requirements based on government-wide acquisition regulations, policies, or executive orders not expressly authorized in law that are inapplicable to contracts for the procurement of commercially available off-the-shelf items. A provision of law or contract clause requirement properly included on the list pursuant to paragraph (2) does not apply to Department of Defense contracts for the procurement of commercially available off-the-shelf items. This section does not render a provision of law or contract clause requirement not included on the list inapplicable to contracts for the procurement of commercially available off-the-shelf items.

(2) A provision of law or contract clause requirement described in subsection (e) shall be included on the list of inapplicable provisions of law and contract clause requirements required by paragraph (1) unless the Under Secretary of Defense for Acquisition and Sustainment makes a written determination that it would not be in the best interest of the Department of Defense to exempt contracts for the procurement of commercially available off-the-shelf items from the applicability of the provision or contract clause requirement.

(e) Covered Provision of Law or Contract Clause Requirement.—A provision of law or contract clause requirement referred to in subsections (b)(2), (c)(2), and (d)(2) is a provision of law or contract clause requirement that the Under Secretary of Defense for Acquisition and Sustainment determines sets forth policies, procedures, requirements, or restrictions for the procurement of property or services by the Federal Government, except for a provision of law or contract clause requirement that—

(1) provides for criminal or civil penalties;

(2) requires that certain articles be bought from American sources pursuant to section 4862 of this title, or requires that strategic materials critical to national security be bought from American sources pursuant to section 4863 of this title; or

(3) specifically refers to this section and provides that, notwithstanding this section, it shall be applicable to contracts for the procurement of commercial products and commercial services.

(Added Pub. L. 103–355, title VIII, §8102, Oct. 13, 1994, 108 Stat. 3390, §2375; amended Pub. L. 105–85, div. A, title X, §1073(a)(51), Nov. 18, 1997, 111 Stat. 1903; Pub. L. 107–107, div. A, title X, §1048(a)(18), Dec. 28, 2001, 115 Stat. 1223; Pub. L. 111–350, §5(b)(21), Jan. 4, 2011, 124 Stat. 3844; Pub. L. 114–328, div. A, title VIII, §874(a), Dec. 23, 2016, 130 Stat. 2308; Pub. L. 115–232, div. A, title VIII, §§836(d)(1), (8)(B), 837(a), Aug. 13, 2018, 132 Stat. 1866, 1868, 1875; Pub. L. 116–92, div. A, title IX, §902(57), Dec. 20, 2019, 133 Stat. 1549; renumbered §3452 and amended Pub. L. 116–283, div. A, title XVIII, §§1821(a)(2), (b)(2), 1870(c)(6)(A), Jan. 1, 2021, 134 Stat. 4195, 4285.)

Editorial Notes

Prior Provisions

A prior section 3452, added Pub. L. 85–861, §1(81)(E), Sept. 2, 1958, 72 Stat. 1480, provided that, notwithstanding any other provision of law, an officer of Medical Corps or Dental Corps may be promoted to temporary grade of captain at any time after first anniversary of date upon which he graduated from a medical, osteopathic, or dental school, prior to repeal by Pub. L. 96–513, title II, §207, title VII, §701, Dec. 12, 1980, 94 Stat. 2884, 2955, effective Sept. 15, 1981.

Amendments

2021—Pub. L. 116–283, §1821(a)(2), renumbered section 2375 of this title as this section.

Subsec. (e)(2). Pub. L. 116–283, §§1821(b)(2), 1870(c)(6)(A), made identical amendments, substituting "section 4862" for "section 2533a" and "section 4863" for "section 2533b". Section 1870(c)(6)(A) amended former section 2375 while section 1821(b)(2) amended this section. See Amendment note above.

2019—Subsecs. (b)(2), (c)(2), (d)(2), (e). Pub. L. 116–92 substituted "Under Secretary of Defense for Acquisition and Sustainment" for "Under Secretary of Defense for Acquisition, Technology, and Logistics".

2018—Pub. L. 115–232, §836(d)(8)(B), substituted "Relationship of other provisions of law to procurement of commercial products and commercial services" for "Relationship of commercial item provisions to other provisions of law" in section catchline.

Subsec. (a)(1), (2). Pub. L. 115–232, §836(d)(1)(A), substituted "commercial product or commercial service" for "commercial item".

Subsec. (b). Pub. L. 115–232, §836(d)(1)(B), in heading, substituted "Commercial Products and Commercial Services" for "Commercial Items" and, in text, substituted "commercial products and commercial services" for "commercial items" wherever appearing.

Subsec. (b)(2). Pub. L. 115–232, §837(a), substituted "October 13, 1994" for "January 1, 2015".

Subsec. (c). Pub. L. 115–232, §836(d)(1)(B), in heading, substituted "Commercial Products and Commercial Services" for "Commercial Items" and, in text, substituted "commercial products and commercial services" for "commercial items" wherever appearing.

Subsec. (e)(3). Pub. L. 115–232, §836(d)(1)(C), substituted "commercial products and commercial services" for "commercial items".

2016—Pub. L. 114–328 amended section generally. Prior to amendment, text read as follows:

"(a) Applicability of Title.—Unless otherwise specifically provided, nothing in this chapter shall be construed as providing that any other provision of this title relating to procurement is inapplicable to the procurement of commercial items.

"(b) List of Laws Inapplicable to Contracts for the Acquisition of Commercial Items.—No contract for the procurement of a commercial item entered into by the head of an agency shall be subject to any law properly listed in the Federal Acquisition Regulation (pursuant to section 1906 of title 41).

"(c) Cross Reference to Exception to Cost or Pricing Data Requirements for Commercial Items.—For a provision relating to an exception for requirements for cost or pricing data for contracts for the procurement of commercial items, see section 2306a(b) of this title."

2011—Subsec. (b). Pub. L. 111–350 substituted "section 1906 of title 41" for "section 34 of the Office of Federal Procurement Policy Act (41 U.S.C. 430)".

2001—Subsec. (b). Pub. L. 107–107 inserted "(41 U.S.C. 430)" after "section 34 of the Office of Federal Procurement Policy Act".

1997—Subsec. (c). Pub. L. 105–85 substituted "a provision relating to an exception" for "provisions relating to exceptions" and "section 2306a(b)" for "section 2306a(d)".

Statutory Notes and Related Subsidiaries

Effective Date of 2021 Amendment

Effective Date of 2018 Amendment

Amendment by section 836(d)(1), (8)(B) of Pub. L. 115–232 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.

Effective Date

For effective date and applicability of chapter, see section 10001 of Pub. L. 103–355 set out as an Effective Date of 1994 Amendment note under section 8752 of this title.

Changes to Defense Federal Acquisition Regulation Supplement

Pub. L. 114–328, div. A, title VIII, §874(b), Dec. 23, 2016, 130 Stat. 2310, as amended by Pub. L. 116–92, div. A, title IX, §902(58), Dec. 20, 2019, 133 Stat. 1549, provided that:

"(1) In general.—To the maximum extent practicable, the Under Secretary of Defense for Acquisition and Sustainment shall ensure that—

"(A) the Defense Federal Acquisition Regulation Supplement does not require the inclusion of contract clauses in contracts for the procurement of commercial items or contracts for the procurement of commercially available off-the-shelf items, unless such clauses are—

"(i) required to implement provisions of law or executive orders applicable to such contracts; or

"(ii) determined to be consistent with standard commercial practice; and

"(B) the flow-down of contract clauses to subcontracts under contracts for the procurement of commercial items or commercially available off-the-shelf items is prohibited unless such flow-down is required to implement provisions of law or executive orders applicable to such subcontracts.

"(2) Subcontracts.—In this subsection, the term 'subcontract' includes a transfer of commercial items between divisions, subsidiaries, or affiliates of a contractor or subcontractor. The term does not include agreements entered into by a contractor for the supply of commodities that are intended for use in the performance of multiple contracts with the Department of Defense and other parties and are not identifiable to any particular contract."

Provisions Not Affected by Title VIII of Pub. L. 103–355

Pub. L. 103–355, title VIII, §8304, Oct. 13, 1994, 108 Stat. 3398, as amended by Pub. L. 115–232, div. A, title VIII, §812(a)(2)(C)(iii), Aug. 13, 2018, 132 Stat. 1847, provided that: "Nothing in this title [see Tables for classification] shall be construed as modifying or superseding, or as intended to impair or restrict, authorities or responsibilities under—

"(1) section 7102 of the Federal Acquisition Streamlining Act of 1994 [Pub. L. 103–355, 15 U.S.C. 644 note];

"(2) the Brooks Automatic Data Processing Act (section 111 of the Federal Property and Administrative Services Act of 1949 ([former] 40 U.S.C. 759));

"(3) Brooks Architect-Engineers Act (title IX of the Federal Property and Administrative Services Act of 1949 ([former] 40 U.S.C. 541 et seq.) [now 40 U.S.C. 1101–1104]);

"(4) subsections (a) and (d) of section 8 of the Small Business Act (15 U.S.C. 637(a) and (d)); or

"(5) the Javits-Wagner-O'Day Act ([former] 41 U.S.C. 46–48c) [now 41 U.S.C. 8501 et seq.]."

§3453. Preference for commercial products and commercial services

(a) Preference.—The head of an agency shall ensure that, to the maximum extent practicable—

(1) requirements of the agency with respect to a procurement of supplies or services are stated in terms of—

(A) functions to be performed;

(B) performance required; or

(2) such requirements are defined so that commercial services or commercial products or, to the extent that commercial products suitable to meet the agency's needs are not available, nondevelopmental items other than commercial products, may be procured to fulfill such requirements; and

(3) offerors of commercial services, commercial products, and nondevelopmental items other than commercial products are provided an opportunity to compete in any procurement to fill such requirements.

(b) Implementation.—The head of an agency shall ensure that procurement officials in that agency, to the maximum extent practicable—

(1) acquire commercial services, commercial products, or nondevelopmental items other than commercial products to meet the needs of the agency;

(2) require prime contractors and subcontractors at all levels under the agency contracts to incorporate commercial services, commercial products, or nondevelopmental items other than commercial products as components of items supplied to the agency;

(3) modify requirements in appropriate cases to ensure that the requirements can be met by commercial services or commercial products or, to the extent that commercial products suitable to meet the agency's needs are not available, nondevelopmental items other than commercial products;

(4) state specifications in terms that enable and encourage bidders and offerors to supply commercial services or commercial products or, to the extent that commercial products suitable to meet the agency's needs are not available, nondevelopmental items other than commercial products in response to the agency solicitations;

(5) revise the 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 products and commercial services; and

(6) require training of appropriate personnel in the acquisition of commercial products and commercial services.

(c) Preliminary Market Research.—(1) The head of an agency shall conduct market research appropriate to the circumstances—

(A) before developing new specifications for a procurement by that agency;

(B) before soliciting bids or proposals for a contract in excess of the simplified acquisition threshold; and

(2) The head of an agency shall use the results of market research to determine whether there are commercial services or commercial products or, to the extent that commercial products suitable to meet the agency's needs are not available, nondevelopmental items other than commercial products available that—

(A) meet the agency's requirements;

(B) could be modified to meet the agency's requirements; or

(3) In conducting market research, the head of an agency should not require potential sources to submit more than the minimum information that is necessary to make the determinations required in paragraph (2).

(4) The head of an agency shall document the results of market research in a manner appropriate to the size and complexity of the acquisition.

(5) The head of an agency shall take appropriate steps to ensure that any prime contractor of a contract (or task order or delivery order) in an amount in excess of $5,000,000 for the procurement of products other than commercial products or services other than commercial services engages in such market research as may be necessary to carry out the requirements of subsection (b)(2) before making purchases for or on behalf of the Department of Defense.

(d) Market Research for Price Analysis.—The Secretary of Defense shall ensure that procurement officials in the Department of Defense conduct or obtain market research to support the determination of the reasonableness of price for commercial products or commercial services contained in any bid or offer submitted in response to an agency solicitation. To the extent necessary to support such market research, the procurement official for the solicitation—

(1) in the case of products or services acquired under section 3455 of this title, shall use information submitted under subsection (d) of that section; and

(2) in the case of other products or services, may require the offeror to submit relevant information.

(e) Market Research Training Required.—The Secretary of Defense shall provide mandatory training for members of the armed forces and employees of the Department of Defense responsible for the conduct of market research required under subsections (c) and (d). Such mandatory training shall, at a minimum—

(1) provide comprehensive information on the subject of market research and the function of market research in the acquisition of commercial products and commercial services;

(2) teach best practices for conducting and documenting market research; and

(3) provide methodologies for establishing standard processes and reports for collecting and sharing market research across the Department.

(Added Pub. L. 103–355, title VIII, §8104(a), Oct. 13, 1994, 108 Stat. 3390, §2377; amended Pub. L. 110–181, div. A, title VIII, §826(a), Jan. 28, 2008, 122 Stat. 227; Pub. L. 114–92, div. A, title VIII, §844(a), Nov. 25, 2015, 129 Stat. 915; Pub. L. 114–328, div. A, title VIII, §871, Dec. 23, 2016, 130 Stat. 2307; Pub. L. 115–232, div. A, title VIII, §836(d)(3), (8)(C), Aug. 13, 2018, 132 Stat. 1866, 1868; Pub. L. 116–92, div. A, title VIII, §818(a), Dec. 20, 2019, 133 Stat. 1488; renumbered §3453 and amended Pub. L. 116–283, div. A, title XVIII, §1821(a)(2), (b)(3), Jan. 1, 2021, 134 Stat. 4195.)

Editorial Notes

Amendments

2021—Pub. L. 116–283, §1821(a)(2), renumbered section 2377 of this title as this section.

Subsec. (d)(1). Pub. L. 116–283, §1821(b)(3), substituted "section 3455" for "section 2379".

2019—Subsec. (c)(4). Pub. L. 116–92, §818(a)(1)(B), added par. (4). Former par. (4) redesignated (5).

Subsec. (c)(5). Pub. L. 116–92, §818(a)(2), amended directory language of Pub. L. 115–232, §836(d)(3)(C)(ii). See 2018 Amendment note below.

Pub. L. 116–92, §818(a)(1), redesignated par. (4) as (5).

2018—Pub. L. 115–232, §836(d)(8)(C), substituted "commercial products and commercial services" for "acquisition of commercial items" in section catchline.

Subsec. (a)(2). Pub. L. 115–232, §836(d)(3)(A)(i), substituted "commercial services or commercial products or, to the extent that commercial products suitable to meet the agency's needs are not available, nondevelopmental items other than commercial products" for "commercial items or, to the extent that commercial items suitable to meet the agency's needs are not available, nondevelopmental items other than commercial items".

Subsec. (a)(3). Pub. L. 115–232, §836(d)(3)(A)(ii), substituted "commercial services, commercial products, and nondevelopmental items other than commercial products" for "commercial items and nondevelopmental items other than commercial items".

Subsec. (b)(1), (2). Pub. L. 115–232, §836(d)(3)(B)(i), substituted "commercial services, commercial products, or nondevelopmental items other than commercial products" for "commercial items or nondevelopmental items other than commercial items".

Subsec. (b)(3), (4). Pub. L. 115–232, §836(d)(3)(B)(ii), substituted "commercial services or commercial products or, to the extent that commercial products suitable to meet the agency's needs are not available, nondevelopmental items other than commercial products" for "commercial items or, to the extent that commercial items suitable to meet the agency's needs are not available, nondevelopmental items other than commercial items".

Subsec. (b)(5), (6). Pub. L. 115–232, §836(d)(3)(B)(iii), substituted "commercial products and commercial services" for "commercial items".

Subsec. (c)(2). Pub. L. 115–232, §836(d)(3)(C)(i), in introductory provisions, substituted "commercial services or commercial products or, to the extent that commercial products suitable to meet the agency's needs are not available, nondevelopmental items other than commercial products" for "commercial items or, to the extent that commercial items suitable to meet the agency's needs are not available, nondevelopmental items other than commercial items".

Subsec. (c)(5). Pub. L. 115–232, §836(d)(3)(C)(ii), as amended by Pub. L. 116–92, §818(a)(2), substituted "products other than commercial products or services other than commercial services" for "items other than commercial items".

Subsec. (d). Pub. L. 115–232, §836(d)(3)(D)(i), substituted "commercial products or commercial services" for "commercial items" in introductory provisions.

Subsec. (d)(1), (2). Pub. L. 115–232, §836(d)(3)(D)(ii), (iii), substituted "products or services" for "items".

Subsec. (e)(1). Pub. L. 115–232, §836(d)(3)(E), substituted "commercial products and commercial services" for "commercial items".

2016—Subsecs. (d), (e). Pub. L. 114–328 added subsec. (d), redesignated former subsec. (d) as (e), and in introductory provisions of subsec. (e), substituted "subsections (c) and (d)" for "subsection (c)".

2015—Subsec. (d). Pub. L. 114–92 added subsec. (d).

2008—Subsec. (c)(1)(C). Pub. L. 110–181, §826(a)(1), added subpar. (C).

Subsec. (c)(4). Pub. L. 110–181, §826(a)(2), added par. (4).

Statutory Notes and Related Subsidiaries

Effective Date of 2021 Amendment

Effective Date of 2018 Amendment

Increase in Air Force and Navy Use of Used Commercial Dual-Use Parts in Certain Aircraft and Engines

Pub. L. 117–263, div. A, title I, §161, Dec. 23, 2022, 136 Stat. 2461, provided that:

"(a) In General.—Not later than 180 days after the date of the enactment of this Act [Dec. 23, 2022], the Secretary of the Air Force, with respect to the Air Force, and the Secretary of the Navy, with respect to the Navy, shall develop and implement processes and procedures for—

"(1) the acquisition of used, overhauled, reconditioned, and remanufactured commercial dual-use parts; and

"(2) the use of such commercial dual-use parts in all—

"(A) commercial derivative aircraft and engines; and

"(B) aircraft used by the Air Force or Navy that are based on the design of commercial products.

"(b) Procurement of Parts.—The processes and procedures implemented under subsection (a) shall provide that commercial dual-use parts shall be acquired—

"(1) pursuant to competitive procedures (as defined in section 3012 of title 10, United States Code); and

"(2) only from suppliers that provide parts that possess an Authorized Release Certificate Federal Aviation Administration Form 8130-3 Airworthy Approval Tag from a certified repair station pursuant to part 145 of title 14, Code of Federal Regulations.

"(c) Definitions.—In this section:

"(1) Commercial derivative.—The term 'commercial derivative' means an item procured by the Department of Defense that is or was produced using the same or similar production facilities, a common supply chain, and the same or similar production processes that are used for the production of the item as predominantly used by the general public or by nongovernmental entities for purposes other than governmental purposes.

"(2) Commercial dual-use part.—The term 'commercial dual-use part' means a product that is—

"(A) a commercial product;

"(B) dual-use;

"(C) described in subsection (b)(2); and

"(D) not a life-limited part.

"(3) Commercial product.—The term 'commercial product' has the meaning given such term in section 103 of title 41, United States Code.

"(4) Dual-use.—The term 'dual-use' has the meaning given such term in section 4801 of title 10, United States Code."

Use of Commercial Items in Distributed Common Ground Systems

Pub. L. 115–91, div. A, title XVI, §1698, Dec. 12, 2017, 131 Stat. 1794, provided that:

"(a) In General.—The procurement process for each covered Distributed Common Ground System shall be carried out in accordance with section 2377 of title 10, United States Code [now 10 U.S.C. 3453].

"(b) Certification.—Not later than 30 days after the date of the enactment of this Act [Dec. 12, 2017], the service acquisition executive responsible for each covered Distributed Common Ground System shall certify to the appropriate congressional committees that the procurement process for increments of the system procured after the date of the enactment of this Act will be carried out in accordance with section 2377 of title 10, United States Code [now 10 U.S.C. 3453].

"(c) Definitions.—In this section:

"(1) The term 'appropriate congressional committees' means—

"(A) the congressional defense committees [Committees on Armed Services and Appropriations of the Senate and the House of Representatives]; and

"(B) the Select Committee on Intelligence of the Senate and the Permanent Select Committee on Intelligence of the House of Representatives.

"(2) The term 'covered Distributed Common Ground System' includes the following:

"(A) The Distributed Common Ground System of the Army.

"(B) The Distributed Common Ground System of the Navy.

"(C) The Distributed Common Ground System of the Marine Corps.

"(D) The Distributed Common Ground System of the Air Force.

"(E) The Distributed Common Ground System of the Special Operations Forces."

Commercial Operational and Support Savings Initiative

Pub. L. 114–328, div. A, title VIII, §849(d), Dec. 23, 2016, 130 Stat. 2294, as amended by Pub. L. 115–232, div. A, title VIII, §836(f)(7), Aug. 13, 2018, 132 Stat. 1871, provided that:

"(1) In general.—The Secretary of Defense may establish a commercial operational and support savings initiative to improve readiness and reduce operations and support costs by inserting existing commercial products or technology into military legacy systems through the rapid development of prototypes and fielding of production items based on current commercial technology.

"(2) Program priority.—The commercial operational and support savings initiative shall fund programs that—

"(A) reduce the costs of owning and operating a military system, including the costs of personnel, consumables, goods and services, and sustaining the support and investment associated with the peacetime operation of a weapon system;

"(B) take advantage of the commercial sector's technological innovations by inserting commercial technology into fielded weapon systems; and

"(C) emphasize prototyping and experimentation with new technologies and concepts of operations.

"(3) Funding phases.—

"(A) In general.—Projects funded under the commercial operational and support savings initiative shall consist of two phases, Phase I and Phase II.

"(B) Phase i.—(i) Funds made available during Phase I shall be used to perform the non-recurring engineering, testing, and qualification that are typically needed to adapt a commercial product or technology for use in a military system.

"(ii) Phase I shall include—

"(I) establishment of cost and performance metrics to evaluate project success;

"(II) establishment of a transition plan and agreement with a military department or Defense Agency for adoption and sustainment of the technology or system; and

"(III) the development, fabrication, and delivery of a demonstrated prototype to a military department for installation into a fielded Department of Defense system.

"(iii) Programs shall be terminated if no agreement is established within two years of project initiation.

"(iv) The Office of the Secretary of Defense may provide up to 50 percent of Phase I funding for a project. The military department or Defense Agency concerned may provide the remainder of Phase I funding, which may be provided out of operation and maintenance funding.

"(v) Phase I funding shall not exceed three years.

"(vi) Phase I projects shall be selected based on a merit-based process using criteria to be established by the Secretary of Defense.

"(C) Phase ii.—(i) Phase II shall include the purchase of limited production quantities of the prototype kits and transition to a program of record for continued sustainment.

"(ii) Phase II awards may be made without competition if general solicitation competitive procedures were used for the selection of parties for participation in a Phase I project.

"(iii) Phase II awards may be made as firm fixed-price awards.

"(4) Treatment as competitive procedures.—The use of a merit-based process for selection of projects under the commercial operational and support savings initiative shall be considered to be the use of competitive procedures for purposes of [former] chapter 137 of title 10, United States Code.

"(5) Definition.—In this subsection, the term 'commercial product' has the meaning given that term in section 103 of title 41."

Preference for Commercial Services

Pub. L. 114–328, div. A, title VIII, §876, Dec. 23, 2016, 130 Stat. 2311, as amended by Pub. L. 116–92, div. A, title IX, §902(59), Dec. 20, 2019, 133 Stat. 1550, provided that: "Not later than 90 days after the date of the enactment of this Act [Dec. 23, 2016], the Secretary of Defense shall revise the guidance issued pursuant to section 855 of the National Defense Authorization Act for Fiscal Year 2016 (Public Law 114–92; 10 U.S.C. 2377 note) to provide that—

"(1) the head of an agency may not enter into a contract in excess of $10,000,000 for facilities-related services, knowledge-based services (except engineering services), construction services, medical services, or transportation services that are not commercial services unless the service acquisition executive of the military department concerned, the head of the Defense Agency concerned, the commander of the combatant command concerned, or the Under Secretary of Defense for Acquisition and Sustainment (as applicable) determines in writing that no commercial services are suitable to meet the agency's needs as provided in section 2377(c)(2) of title 10, United States Code [now 10 U.S.C. 3453(c)(2)]; and

"(2) the head of an agency may not enter into a contract in an amount above the simplified acquisition threshold and below $10,000,000 for facilities-related services, knowledge-based services (except engineering services), construction services, medical services, or transportation services that are not commercial services unless the contracting officer determines in writing that no commercial services are suitable to meet the agency's needs as provided in section 2377(c)(2) of such title [now 10 U.S.C. 3453(c)(2)]."

Incorporation Into Management Certification Training Mandate

Pub. L. 114–92, div. A, title VIII, §844(b), Nov. 25, 2015, 129 Stat. 915, provided that: "The Chairman of the Joint Chiefs of Staff shall ensure that the requirements of section 2377(d) of title 10, United States Code [now 10 U.S.C. 3453(e)], as added by subsection (a), are incorporated into the requirements management certification training mandate of the Joint Capabilities Integration Development System."

Market Research and Preference for Commercial Items

Pub. L. 114–92, div. A, title VIII, §855, Nov. 25, 2015, 129 Stat. 919, as amended by Pub. L. 116–92, div. A, title IX, §902(60), Dec. 20, 2019, 133 Stat. 1550, provided that:

"(a) Guidance Required.—Not later than 90 days after the date of the enactment of this Act [Nov. 25, 2015], the Under Secretary of Defense for Acquisition and Sustainment shall issue guidance to ensure that acquisition officials of the Department of Defense fully comply with the requirements of section 2377 of title 10, United States Code [now 10 U.S.C. 3453], regarding market research and commercial items. The guidance issued pursuant to this subsection shall, at a minimum—

"(1) provide that the head of an agency may not enter into a contract in excess of the simplified acquisition threshold for information technology products or services that are not commercial items unless the head of the agency determines in writing that no commercial items are suitable to meet the agency's needs as provided in subsection (c)(2) of such section; and

"(2) ensure that market research conducted in accordance with subsection (c) of such section is used, where appropriate, to inform price reasonableness determinations.

"(b) Review Required.—Not later than 180 days after the date of the enactment of this Act [Nov. 25, 2015], the Chairman and the Vice Chairman of the Joint Chiefs of Staff, in consultation with the Under Secretary of Defense for Acquisition and Sustainment, shall review Chairman of the Joint Chiefs of Staff Instruction 3170.01, the Manual for the Operation of the Joint Capabilities Integration and Development System, and other documents governing the requirements development process and revise these documents as necessary to ensure that the Department of Defense fully complies with the requirement in section 2377(c) of title 10, United States Code [now 10 U.S.C. 3453(c)], and section 10.001 of the Federal Acquisition Regulation for Federal agencies to conduct appropriate market research before developing new requirements.

"(c) Market Research Defined.—For the purposes of this section, the term 'market research' means a review of existing systems, subsystems, capabilities, and technologies that are available or could be made available to meet the needs of the Department of Defense in whole or in part. The review may include any of the techniques for conducting market research provided in section 10.002(b)(2) of the Federal Acquisition Regulation and shall include, at a minimum, contacting knowledgeable individuals in Government and industry regarding existing market capabilities."

Commercial Software Reuse Preference

Pub. L. 110–417, [div. A], title VIII, §803, Oct. 14, 2008, 122 Stat. 4519, provided that:

"(a) In General.—The Secretary of Defense shall ensure that contracting officials identify and evaluate, at all stages of the acquisition process (including concept refinement, concept decision, and technology development), opportunities for the use of commercial computer software and other non-developmental software.

"(b) Report.—Not later than 270 days after the date of enactment of this Act [Oct. 14, 2008], the Secretary shall submit to the congressional defense committees [Committees on Armed Services and Appropriations of the Senate and the House of Representatives] a report on actions taken to implement subsection (a), including a description of any relevant regulations and policy guidance."

Requirement To Develop Training and Tools

Pub. L. 110–181, div. A, title VIII, §826(b), Jan. 28, 2008, 122 Stat. 228, provided that: "The Secretary of Defense shall develop training to assist contracting officers, and market research tools to assist such officers and prime contractors, in performing appropriate market research as required by subsection (c) of section 2377 of title 10, United States Code [now 10 U.S.C. 3453(c)], as amended by this section."

§3455. Procurement of a major weapon system as a commercial product: requirement for prior determination by Secretary of Defense and notification to Congress

(a) Requirement for Determination and Notification.—A major weapon system of the Department of Defense may be treated as a commercial product, or purchased under procedures established for the procurement of commercial products, only if—

(1) the Secretary of Defense determines that—

(A) the major weapon system is a commercial product; and

(B) such treatment is necessary to meet national security objectives; and

(2) the congressional defense committees are notified at least 30 days before such treatment or purchase occurs.

(b) Treatment of Subsystems as Commercial Products.—(1) A subsystem of a major weapon system (other than a commercially available off-the-shelf item as defined in section 104 of title 41) shall be treated as a commercial product and purchased under procedures established for the procurement of commercial products if either—

(A) the subsystem is intended for a major weapon system that is being purchased, or has been purchased, under procedures established for the procurement of commercial products in accordance with the requirements of subsection (a); or

(B) the contracting officer determines in writing that the subsystem is a commercial product.

(2)(A) For a subsystem proposed as commercial (as defined in section 103(1) of title 41) and that has not been previously determined commercial in accordance with section 3703(d) of this title, the offeror shall—

(i) identify the comparable commercial product the offeror sells to the general public or nongovernmental entities that serves as the basis for the "of a type" assertion;

(ii) submit to the contracting officer a comparison necessary to serve as the basis of the "of a type" assertion of the physical characteristics and functionality between the subsystem and the comparable commercial product identified under clause (i); and

(iii) provide to the contracting officer the National Stock Number for both the comparable commercial product identified under clause (i), if one is assigned, and the subsystem, if one is assigned.

(B) If the offeror does not sell a comparable commercial product to the general public or nongovernmental entities for purposes other than governmental purposes that can serve as the basis for an "of a type" assertion with respect to the subsystem—

(i) the offeror shall—

(I) notify the contracting officer in writing that it does not so sell such a comparable commercial product; and

(II) provide to the contracting officer a comparison necessary to serve as the basis of the "of a type" assertion of the physical characteristics and functionality between the subsystem and the most comparable commercial product in the commercial marketplace, to the extent reasonably known by the offeror; and

(ii) subparagraph (A) shall not apply with respect to the offeror for such subsystem.

(c) Treatment of Components and Spare Parts as Commercial Products.—(1) A component or spare part for a major weapon system (other than a commercially available off-the-shelf item as defined in section 104 of title 41) may be treated as a commercial product for the purposes of chapter 271 of this title if either—

(A) the component or spare part is intended for—

(i) a major weapon system that is being purchased, or has been purchased, under procedures established for the procurement of commercial products in accordance with the requirements of subsection (a); or

(ii) a subsystem of a major weapon system that is being purchased, or has been purchased, under procedures established for the procurement of commercial products in accordance with the requirements of subsection (b); or

(B) the contracting officer determines in writing that the component or spare part is a commercial product.

(2)(A) For a component or spare part proposed as commercial (as defined in section 103(1) of title 41) and that has not previously been determined commercial in accordance with section 3703(d) of this title, the offeror shall—

(i) identify the comparable commercial product the offeror sells to the general public or nongovernmental entities that serves as the basis for the "of a type" assertion;

(ii) submit to the contracting officer a comparison necessary to serve as the basis of the "of a type" assertion of the physical characteristics and functionality between the component or spare part and the comparable commercial product identified under clause (i); and

(iii) provide to the contracting officer the National Stock Number for both the comparable commercial product identified under clause (i), if one is assigned, and the component or spare part, if one is assigned.

(i) the offeror shall—

(I) notify the contracting officer in writing that it does not so sell such a comparable commercial product; and

(II) provide to the contracting officer a comparison necessary to serve as the basis of the "of a type" assertion of the physical characteristics and functionality between the component or spare part and the most comparable commercial product in the commercial marketplace, to the extent reasonably known by the offeror; and

(ii) subparagraph (A) shall not apply with respect to the offeror for such component or spare part.

(d) Information Submitted for Procurements That Are Not Covered by the Exceptions in Section 3703(a)(1) of This Title.—(1) To the extent necessary to determine the reasonableness of the price for items acquired under this section, the offeror shall, in accordance with paragraph (4), submit to the contracting officer or provide the contracting officer access to—

(A) a representative sample, as determined by the contracting officer, of the prices paid for the same or similar commercial products under comparable terms and conditions by both Government and commercial customers, and the terms and conditions of such sales;

(B) if the contracting officer determines that the offeror does not have access to and cannot provide sufficient information described in subparagraph (A) to determine the reasonableness of price, a representative sample, as determined by the contracting officer, of the prices paid for the same or similar commercial products sold under different terms and conditions, and the terms and conditions of such sales; and

(C) only if the contracting officer determines that the information submitted pursuant to subparagraphs (A) and (B) is not sufficient to determine the reasonableness of price because either the comparable commercial products provided by the offeror are not a valid basis for a price analysis or the contracting officer determines the proposed price is not reasonable after evaluating sales data, and the contracting officer receives the approval described in paragraph (5), other relevant information regarding the basis for price or cost, including information on labor costs, material costs, and overhead rates.

(2) An offeror may submit information or analysis relating to the value of a commercial product to aid in the determination of the reasonableness of the price of such item. A contracting officer may consider such information or analysis in addition to the information submitted pursuant to paragraphs (1)(A) and (1)(B).

(3) An offeror may not be required to submit information described in paragraph (1)(C) with regard to a commercially available off-the-shelf item and may be required to submit such information with regard to any other item that was developed exclusively at private expense only after the head of the contracting activity determines in writing that the information submitted pursuant to paragraphs (1)(A) and (1)(B) is not sufficient to determine the reasonableness of price.

(4)(A) An offeror may redact data information submitted or made available under subparagraph (A) or (B) of paragraph (1) with respect to sales of an item acquired under this section only to the extent necessary to remove information individually identifying government customers, commercial customers purchasing such item for governmental purposes, and commercial customers purchasing such item for commercial, mixed, or unknown purposes.

(B) Before an offeror may exercise the authority under subparagraph (A) with respect to a customer, the offeror shall certify in writing to the contracting officer whether the customer is a government customer, a commercial customer purchasing the item for governmental purpose, or a commercial customer purchasing the item for a commercial, mixed, or unknown purpose.

(5) A contracting officer may not require an offeror to submit or make available information under paragraph (1)(C) without approval from a level above the contracting officer.

(6) Nothing in this subsection shall relieve an offeror of other obligations under any other law or regulation to disclose and support the actual rationale of the offeror for the price proposed by the offeror to the Government for any good or service.

(e) Delegation.—The authority of the Secretary of Defense to make a determination under subsection (a) may be delegated only to the Deputy Secretary of Defense, without further redelegation.

(f) Major Weapon System Defined.—In this section, the term "major weapon system" means a weapon system acquired pursuant to a major defense acquisition program (as that term is defined in section 2430 ¹ of this title).

(g) Applicability.—

(1) In general.—Subsections (b) and (c) shall apply only with respect to subsystems described in subsection (b) and components or spare parts described in subsection (c), respectively, that the Department of Defense acquires through—

(A) a prime contract;

(B) a modification to a prime contract; or

(2) Subcontract described.—A subcontract described in this paragraph is a subcontract through which the Department of Defense acquires a subsystem or component or spare part proposed as commercial (as defined in section 103(1) of title 41) under this section and that has not previously been determined commercial in accordance with section 3703(d).

(Added Pub. L. 109–163, div. A, title VIII, §803(a)(1), Jan. 6, 2006, 119 Stat. 3370, §2379; amended Pub. L. 110–181, div. A, title VIII, §815(a)(1), Jan. 28, 2008, 122 Stat. 222; Pub. L. 113–291, div. A, title X, §1071(a)(7), Dec. 19, 2014, 128 Stat. 3504; Pub. L. 114–92, div. A, title VIII, §852(a)–(d), Nov. 25, 2015, 129 Stat. 917, 918; Pub. L. 114–328, div. A, title VIII, §872, Dec. 23, 2016, 130 Stat. 2307; Pub. L. 115–232, div. A, title VIII, §836(d)(4), (8)(D), Aug. 13, 2018, 132 Stat. 1868, 1869; renumbered §3455 and amended Pub. L. 116–283, div. A, title XVIII, §§1821(a)(2), (b)(4), 1831(j)(4), 1883(b)(2), Jan. 1, 2021, 134 Stat. 4195, 4217, 4294; Pub. L. 117–81, div. A, title XVII, §1701(b)(10)(i)(ii), Dec. 27, 2021, 135 Stat. 2134; Pub. L. 117–263, div. A, title VIII, §803, Dec. 23, 2022, 136 Stat. 2693.)

Editorial Notes

References in Text

Section 2430 of this title, referred to in subsec. (f), was transferred to sections 4201, 4202, and 4204 of this title by Pub. L. 116–283, div. A, title XVIII, §1846(c)(1), (d)(1), (f)(1), Jan. 1, 2021, 134 Stat. 4248–4250. Section 4201 of this title defines "major defense acquisition program".

Amendments

2022—Subsec. (b). Pub. L. 117–263, §803(a), designated existing provisions as par. (1), redesignated former pars. (1) and (2) as subpars. (A) and (B), respectively, of par. (1), and added par. (2).

Subsec. (c)(2). Pub. L. 117–263, §803(b), amended par. (2) generally. Prior to amendment, par. (2) read as follows: "This subsection shall apply only to components and spare parts that are acquired by the Department of Defense through a prime contract or a modification to a prime contract (or through a subcontract under a prime contract or modification to a prime contract on which the prime contractor adds no, or negligible, value)."

Subsec. (d). Pub. L. 117–263, §803(c)(1), inserted "for Procurements That Are Not Covered by the Exceptions in Section 3703(a)(1) of This Title" after "Submitted" in heading.

Subsec. (d)(1). Pub. L. 117–263, §803(c)(2)(A), in introductory provisions, substituted "the offeror shall, in accordance with paragraph (4), submit to the contracting officer or provide the contracting officer access to—" for "the contracting officer shall require the offeror to submit—".

Subsec. (d)(1)(A). Pub. L. 117–263, §803(c)(2)(B), inserted "a representative sample, as determined by the contracting officer, of the" before "prices paid" and ", and the terms and conditions of such sales" before semicolon at end.

Subsec. (d)(1)(B). Pub. L. 117–263, §803(c)(2)(C), substituted "a representative sample, as determined by the contracting officer, of the prices paid for the same or similar commercial products sold under different terms and conditions, and the terms and conditions of such sales; and" for "information on—

"(i) prices for the same or similar items sold under different terms and conditions;

"(ii) prices for similar levels of work or effort on related products or services;

"(iii) prices for alternative solutions or approaches; and

"(iv) other relevant information that can serve as the basis for a price assessment; and".

Subsec. (d)(1)(C). Pub. L. 117–263, §803(c)(2)(D), inserted "only" before "if the contracting officer" and "because either the comparable commercial products provided by the offeror are not a valid basis for a price analysis or the contracting officer determines the proposed price is not reasonable after evaluating sales data, and the contracting officer receives the approval described in paragraph (5)" after "reasonableness of price".

Subsec. (d)(4) to (6). Pub. L. 117–263, §803(c)(3), added pars. (4) to (6).

Subsec. (g). Pub. L. 117–263, §803(d), added subsec. (g).

2021—Pub. L. 116–283, §1821(a)(2), renumbered section 2379 of this title as this section.

Subsec. (c)(1). Pub. L. 116–283, §1831(j)(4), which directed amendment of this section by substituting "sections 3701–3708" for "section 2306a" and could not be executed, was repealed by Pub. L. 117–81, §1701(b)(10)(I)(ii).

Pub. L. 116–283, §1821(b)(4), substituted "chapter 271" for "section 2306a" in introductory provisions.

Subsec. (f). Pub. L. 116–283, §1883(b)(2), which directed that each reference in the text of title 10 to a section that was redesignated by title XVIII of Pub. L. 116–283, as such section was in effect before the redesignation, be amended by striking such reference and inserting a reference to the appropriate redesignated section, was not executed with respect to "section 2430", which was redesignated as multiple sections.

2018—Pub. L. 115–232, §836(d)(8)(D), substituted "Procurement of a major weapon system as a commercial product: requirement for prior determination by Secretary of Defense and notification to Congress" for "Requirement for determination by Secretary of Defense and notification to Congress before procurement of major weapon systems as commercial items" in section catchline.

Pub. L. 115–232, §836(d)(4)(C), substituted "commercial product" for "commercial item" and "commercial products" for "commercial items" wherever appearing.

Subsec. (a)(1)(A). Pub. L. 115–232, §836(d)(4)(B), struck out ", as defined in section 103 of title 41" before "; and".

Subsec. (b). Pub. L. 115–232, §836(d)(4)(A), substituted "Commercial Products" for "Commercial Items" in heading.

Subsec. (b)(2). Pub. L. 115–232, §836(d)(4)(B), struck out ", as defined in section 103 of title 41" before period.

Subsec. (c). Pub. L. 115–232, §836(d)(4)(A), substituted "Commercial Products" for "Commercial Items" in heading.

Subsec. (c)(1)(B). Pub. L. 115–232, §836(d)(4)(B), struck out ", as defined in section 103 of title 41" before period.

2016—Subsec. (d)(2), (3). Pub. L. 114–328 added par. (2) and redesignated former par. (2) as (3).

2015—Subsec. (a). Pub. L. 114–92, §852(a), inserted "and" at end of par. (1)(B), redesignated par. (3) as (2), and struck out former par. (2) which read as follows: "the offeror has submitted sufficient information to evaluate, through price analysis, the reasonableness of the price for such system; and".

Subsec. (b). Pub. L. 114–92, §852(b)(1), substituted "if either" for "only if" in introductory provisions.

Subsec. (b)(2). Pub. L. 114–92, §852(b)(2), substituted "writing that" for "writing that—", struck out subpar. (A) designation before "the subsystem is a", substituted "title 41." for "title 41; and", and struck out subpar. (B) which read as follows: "the offeror has submitted sufficient information to evaluate, through price analysis, the reasonableness of the price for such subsystem."

Subsec. (c)(1). Pub. L. 114–92, §852(c)(1), substituted "title if either" for "title only if" in introductory provisions.

Subsec. (c)(1)(B). Pub. L. 114–92, §852(c)(2), substituted "writing that" for "writing that—", struck out cl. (i) designation before "the component or", substituted "title 41." for "title 41; and", and struck out cl. (ii) which read as follows: "the offeror has submitted sufficient information to evaluate, through price analysis, the reasonableness of the price for such component or spare part."

Subsec. (d). Pub. L. 114–92, §852(d), amended subsec. (d) generally. Prior to amendment, text read as follows: "To the extent necessary to make a determination under subsection (a)(2), (b)(2), or (c)(1)(B), the contracting officer may request the offeror to submit—

"(1) prices paid for the same or similar commercial items under comparable terms and conditions by both government and commercial customers; and

"(2) if the contracting officer determines that the information described in paragraph (1) is not sufficient to determine the reasonableness of price, other relevant information regarding the basis for price or cost, including information on labor costs, material costs, and overhead rates."

2014—Subsec. (a)(1)(A). Pub. L. 113–291, §1071(a)(7)(A), substituted "section 103 of title 41" for "section 4(12) of the Office of Federal Procurement Policy Act (41 U.S.C. 403(12))".

Subsec. (b). Pub. L. 113–291, §1071(a)(7)(B), substituted "section 104 of title 41" for "section 35(c) of the Office of Federal Procurement Policy Act (41 U.S.C. 431(c))" in introductory provisions.

Subsec. (b)(2)(A). Pub. L. 113–291, §1071(a)(7)(A), substituted "section 103 of title 41" for "section 4(12) of the Office of Federal Procurement Policy Act (41 U.S.C. 403(12))".

Subsec. (c)(1). Pub. L. 113–291, §1071(a)(7)(B), substituted "section 104 of title 41" for "section 35(c) of the Office of Federal Procurement Policy Act (41 U.S.C. 431(c))" in introductory provisions.

Subsec. (c)(1)(B)(i). Pub. L. 113–291, §1071(a)(7)(A), substituted "section 103 of title 41" for "section 4(12) of the Office of Federal Procurement Policy Act (41 U.S.C. 403(12))".

2008—Subsec. (a)(2), (3). Pub. L. 110–181, §815(a)(1)(A), added par. (2) and redesignated former par. (2) as (3).

Subsec. (b). Pub. L. 110–181, §815(a)(1)(B), added subsec. (b) and struck out former subsec. (b). Former text read as follows: "A subsystem or component of a major weapon system shall be treated as a commercial item and purchased under procedures established for the procurement of commercial items if such subsystem or component otherwise meets the requirements (other than requirements under subsection (a)) for treatment as a commercial item."

Subsecs. (c) to (f). Pub. L. 110–181, §815(a)(1)(C), (D), added subsecs. (c) and (d) and redesignated former subsecs. (c) and (d) as (e) and (f), respectively.

Statutory Notes and Related Subsidiaries

Effective Date of 2021 Amendment

Amendment by Pub. L. 117–81 applicable as if included in the enactment of title XVIII of Pub. L. 116–283 as enacted, see section 1701(a)(2) of Pub. L. 117–81, set out in a note preceding section 3001 of this title and note below.

Effective Date of 2018 Amendment

Effective Date

Pub. L. 109–163, div. A, title VIII, §803(b), Jan. 6, 2006, 119 Stat. 3371, provided that: "The amendments made by subsection (a) [enacting this section] shall take effect on the date of the enactment of this Act [Jan. 6, 2006], and shall apply to contracts entered into on or after such date."

¹ See References in Text note below.

§3456. Commercial product and commercial service determinations by Department of Defense

(a) In General.—The Secretary of Defense shall—

(1) establish and maintain a centralized capability with necessary expertise and resources to provide assistance to the military departments and Defense Agencies in making commercial product and commercial service determinations, conducting market research, and performing analysis of price reasonableness for the purposes of procurements by the Department of Defense; and

(2) provide to officials of the Department of Defense access to previous Department of Defense commercial product and commercial service determinations, market research, and analysis used to determine the reasonableness of price for the purposes of procurements by the Department of Defense.

(b) Determinations Regarding the Commercial Nature of Products or Services.—

(1) In general.—In making a determination whether a particular product or service offered by a contractor meets the definition of a commercial product or commercial service, a contracting officer of the Department of Defense may—

(A) request support from the Director of the Defense Contract Management Agency, the Director of the Defense Contract Audit Agency, or other appropriate experts in the Department to make a determination whether a product or service is a commercial product or commercial service; and

(B) consider the views of appropriate public and private sector entities.

(2) Memorandum.—Within 30 days after a contract award, the contracting officer shall, consistent with the policies and regulations of the Department, submit a written memorandum summarizing the determination referred to in paragraph (1), including a detailed justification why the product or service was determined to be commercial or noncommercial. Upon the request of the contractor or subcontractor offering the product or service for which such determination is summarized in such memorandum, the contracting officer shall provide to such contractor or subcontractor a copy of such memorandum.

(1) Determinations.—A contract for a product or service acquired using commercial acquisition procedures under part 12 of the Federal Acquisition Regulation shall serve as a prior commercial product or service determination with respect to such product or service for purposes of this chapter unless the senior procurement executive of the military department or the Department of Defense as designated for purposes of section 1702(c) of title 41 determines in writing that it is no longer appropriate to acquire the product or service using commercial acquisition procedures.

(2) Limitation.—(A) Except as provided under subparagraph (B), funds appropriated or otherwise made available to the Department of Defense may not be used for the procurement under part 15 of the Federal Acquisition Regulation of a product or service that was previously acquired under a contract using commercial acquisition procedures under part 12 of the Federal Acquisition Regulation.

(B) The limitation under subparagraph (A) does not apply to the procurement of a product or service that was previously acquired using commercial acquisition procedures under part 12 of the Federal Acquisition Regulation following—

(i) a written determination by the head of contracting activity pursuant to section 3703(d)(2) of this title that the use of such procedures was improper; or

(ii) a written determination by the senior procurement executive of the military department or the Department of Defense as designated for purposes of section 1702(c) of title 41 that it is no longer appropriate to acquire the product or service using such procedures.

(Added Pub. L. 114–92, div. A, title VIII, §851(a)(1), Nov. 25, 2015, 129 Stat. 916, §2380; amended Pub. L. 114–328, div. A, title VIII, §873, Dec. 23, 2016, 130 Stat. 2307; Pub. L. 115–91, div. A, title VIII, §848, Dec. 12, 2017, 131 Stat. 1487; Pub. L. 115–232, div. A, title VIII, §836(d)(5), (8)(E), Aug. 13, 2018, 132 Stat. 1868, 1869; renumbered §3456 and amended Pub. L. 116–283, div. A, title VIII, §816, title XVIII, §§1821(a)(2), (b)(5), 1831(j)(5), Jan. 1, 2021, 134 Stat. 3750, 4195, 4217; Pub. L. 117–81, div. A, title XVII, §1701(b)(9), (10)(I)(ii), Dec. 27, 2021, 135 Stat. 2133, 2134; Pub. L. 118–31, div. A, title VIII, §801, Dec. 22, 2023, 137 Stat. 312.)

Editorial Notes

Amendments

2023—Subsec. (b)(2). Pub. L. 118–31 substituted "why the product or service was determined to be commercial or noncommercial" for "for such determination" and inserted at end "Upon the request of the contractor or subcontractor offering the product or service for which such determination is summarized in such memorandum, the contracting officer shall provide to such contractor or subcontractor a copy of such memorandum."

2021—Pub. L. 116–283, §1821(a)(2), renumbered section 2380 of this title as this section.

Subsec. (b). Pub. L. 116–283, §816(2), added subsec. (b). Former subsec. (b) redesignated (c).

Subsec. (b)(2)(B)(i). Pub. L. 116–283, §1831(j)(5), which directed amendment of subsec. (b)(2)(B)(i) of section 2380 of this title (now subsec. (c)(2)(B)(i) of this section) by substituting "section 3703(d)(2)" for "section 2306a(b)(4)(B)", was repealed by Pub. L. 117–81, §1701(b)(10)(I)(ii). Identical amendment was made to subsec. (c)(2)(B)(i) of this section by Pub. L. 116–283, §1821(b)(5), see below.

Subsec. (c). Pub. L. 116–283, §816(1), redesignated subsec. (b) as (c).

Subsec. (c)(2)(B)(i). Pub. L. 116–283, §1821(b)(5), as amended by Pub. L. 117–81, §1701(b)(9), substituted "section 3703(d)(2)" for "section 2306a(b)(4)(B)".

2018—Pub. L. 115–232, §836(d)(8)(E), substituted "Commercial product and commercial service" for "Commercial item" in section catchline.

Subsec. (a). Pub. L. 115–232, §836(d)(5)(A), substituted "commercial product and commercial service determinations" for "commercial item determinations" in pars. (1) and (2).

Subsec. (b). Pub. L. 115–232, §836(d)(5)(B)(i)–(iii), in heading, struck out "Item" after "Commercial" and, in text, substituted "a product or service" for "an item" and struck out "item" after "using commercial" wherever appearing.

Subsec. (b)(1). Pub. L. 115–232, §836(d)(5)(B)(iv)–(vi) substituted "prior commercial product or service determination" for "prior commercial item determination", "such product or service" for "such item", and "the product or service" for "the item".

Subsec. (b)(2)(B)(ii). Pub. L. 115–232, §836(d)(5)(B)(vi), substituted "the product or service" for "the item".

2017—Pub. L. 115–91 designated existing provisions as subsec. (a), inserted heading, and added subsec. (b).

2016—Pars. (1), (2). Pub. L. 114–328 amended pars. (1) and (2) generally. Prior to amendment, pars. (1) and (2) read as follows:

"(1) establish and maintain a centralized capability with necessary expertise and resources to oversee the making of commercial item determinations for the purposes of procurements by the Department of Defense; and

"(2) provide public access to Department of Defense commercial item determinations for the purposes of procurements by the Department of Defense."

Statutory Notes and Related Subsidiaries

Effective Date of 2021 Amendment

Amendment by sections 1821(a)(2), (b)(5) and 1831(j)(5) of Pub. L. 116–283 effective Jan. 1, 2022, with additional provisions for delayed implementation and applicability of existing law, see section 1801(d) of Pub. L. 116–283, set out as a note preceding section 3001 of this title.

Effective Date of 2018 Amendment

Regulations

Pub. L. 114–92, div. A, title VIII, §851(d), Nov. 25, 2015, 129 Stat. 917, provided that: "Not later than 180 days after the date of the enactment of this Act [Nov. 25, 2015], the Defense Federal Acquisition Regulation Supplement shall be updated to reflect the requirements of this section [enacting this section, amending section 2306a of this title, and enacting provisions set out as notes under section 2306a of this title] and the amendments made by this section."

Construction

Pub. L. 114–92, div. A, title VIII, §851(e), Nov. 25, 2015, 129 Stat. 917, provided that: "Nothing in this section [enacting this section, amending section 2306a of this title, and enacting provisions set out as notes under section 2306a of this title] or the amendments made by this section shall be construed to preclude the contracting officer for the procurement of a commercial item from requiring the contractor to supply information that is sufficient to determine the reasonableness of price, regardless of whether or not the contractor was required to provide such information in connection with any earlier procurement."

Definition of Commercial Item

Pub. L. 114–92, div. A, title VIII, §851(c), Nov. 25, 2015, 129 Stat. 917, provided that: "Nothing in this section [enacting section 2380 of this title, amending section 2306a of this title, and enacting provisions set out as notes under section 2306a of this title] or the amendments made by this section shall affect the meaning of the term 'commercial item' under 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." [Pub. L. 115–232 amended subsecs. (a)(3), (5) and (c) of section 2464 of title 10 by substituting references to "commercial products or commercial services" for references to "commercial items". See 2018 Amendment notes set out under that section.]

§3457. Treatment of certain products and services as commercial products and commercial services

(a) Goods and Services Provided by Nontraditional Defense Contractors.—Notwithstanding section 3451(1) of this title, products and services provided by nontraditional defense contractors (as that term is defined in section 3014 of this title) may be treated by the head of an agency as commercial products and commercial services, respectively, for purposes of this chapter.

(b) Services Provided by Certain Nontraditional Contractors.—Notwithstanding section 3451(1) of this title, services provided by a business unit that is a nontraditional defense contractor (as that term is defined in section 3014 of this title) shall be treated as commercial services for purposes of this chapter, to the extent that such services use the same pool of employees as used for commercial customers and are priced using methodology similar to methodology used for commercial pricing.

(c) Commingled Items Purchased by Contractors.—Notwithstanding section 3451(1) of this title, items valued at less than $10,000 that are purchased by a contractor for use in the performance of multiple contracts with the Department of Defense and other parties and are not identifiable to any particular contract shall be treated as a commercial product for purposes of this chapter.

(Added Pub. L. 114–92, div. A, title VIII, §857(a), Nov. 25, 2015, 129 Stat. 921, §2380A; renumbered §2380a and amended Pub. L. 114–328, div. A, title VIII, §878(a), (b)(1), Dec. 23, 2016, 130 Stat. 2312; Pub. L. 115–232, div. A, title VIII, §836(d)(6), (8)(F), Aug. 13, 2018, 132 Stat. 1868, 1869; renumbered §3457 and amended Pub. L. 116–283, div. A, title XVIII, §1821(a)(2), (b)(6), (7)(A), (B), Jan. 1, 2021, 134 Stat. 4195, 4196.)

Editorial Notes

Codification

Section 1821(a)(1), (2) of Pub. L. 116–260 transferred chapter 140 of this title (§§2375 to 2380b) to this chapter and renumbered all the sections within it, except for final section 2380b. At that point, the last two sections of this chapter were this section (renumbered from section 2380a) followed by section 2380b. Section 1821(b)(7)(A) subsequently struck out "the heading of the final section of" this chapter, which was executed by incorporating the text of former section 2380b at the end of this section. The text of section 2380b of this title was based on Pub. L. 114–328, div. A, title VIII, §877(a), Dec. 23, 2016, 130 Stat. 2311; Pub. L. 115–232, div. A, title VIII, §836(d)(7), (8)(G), Aug. 13, 2018, 132 Stat. 1868, 1869; Pub. L. 116–92, div. A, title XVII, §1731(a)(47), Dec. 20, 2019, 133 Stat. 1815.

Prior Provisions

A prior section 3491 was renumbered section 7191 of this title.

Prior sections 3492 and 3493 were repealed by Pub. L. 90–235, §1(a)(2), (b), Jan. 2, 1968, 81 Stat. 753.

Section 3492, act Aug. 10, 1956, ch. 1041, 70A Stat. 198, provided for extension of active service of Army members during war. See section 671a of this title.

Section 3493, act Aug. 10, 1956, ch. 1041, 70A Stat. 198, empowered the President to order commissioned officers of the Army Reserve to active duty with the Corps of Engineers.

A prior section 3494, added Pub. L. 85–861, §1(82)(A), Sept. 2, 1958, 72 Stat. 1481; amended Pub. L. 86–559, §1(20), June 30, 1960, 74 Stat. 271, provided that a reserve commissioned officer who is ordered to active duty be ordered to that duty in his reserve grade unless the Secretary of the Army orders him to active duty, other than for training, in a higher temporary grade and authorized a reserve commissioned officer who is selected for participation in a program under which he will be ordered to active duty for at least one academic year at a civilian school or college to be ordered, upon his request, to that duty in a temporary grade that is lower than his reserve grade, without affecting his reserve grade, prior to repeal by Pub. L. 96–513, title II, §209(a), title VII, §701, Dec. 12, 1980, 94 Stat. 2884, 2955, effective Sept. 15, 1981. See section 12320 of this title.

Prior sections 3495 to 3500 were repealed by Pub. L. 103–337, div. A, title XVI, §§1662(f)(2), 1691, Oct. 5, 1994, 108 Stat. 2994, 3026, effective Dec. 1, 1994.

Section 3495, act Aug. 10, 1956, ch. 1041, 70A Stat. 198, provided that members of Army National Guard of United States were not in active Federal service except when ordered thereto under law. See section 12401 of this title.

Section 3496, act Aug. 10, 1956, ch. 1041, 70A Stat. 198, authorized President to order commissioned officers of Army National Guard of United States to active duty in National Guard Bureau. See section 12402(a), (b)(1) of this title.

Section 3497, act Aug. 10, 1956, ch. 1041, 70A Stat. 199, provided that members of Army National Guard of United States ordered to active duty were to be ordered to duty as Reserves of Army. See section 12403 of this title.

Section 3498, act Aug. 10, 1956, ch. 1041, 70A Stat. 199, related to organization during initial mobilization of units of Army National Guard of United States ordered into active Federal service. See section 12404 of this title.

Section 3499, act Aug. 10, 1956, ch. 1041, 70A Stat. 199, related to application of laws governing Army to members of Army National Guard called into Federal service. See section 12405 of this title.

Section 3500, acts Aug. 10, 1956, ch. 1041, 70A Stat. 199; Sept. 29, 1988, Pub. L. 100–456, div. A, title XII, §1234(a)(1), (3), 102 Stat. 2059, authorized President to call Army National Guard units and members into Federal service. See section 12406 of this title.

Amendments

2021—Pub. L. 116–283, §1821(a)(2), renumbered section 2380a of this title as this section.

Subsecs. (a), (b). Pub. L. 116–283, §1821(b)(6), substituted "section 3451(1)" for "section 2376(1)" and "section 3014" for "section 2302(9)".

Subsec. (c). Pub. L. 116–283, §1821(b)(7)(A), (B), transferred section 2380b of this title to this section and struck out section designation and catchline, designated text as subsec. (c) and inserted heading, and substituted "Notwithstanding section 3451(1)" for "Notwithstanding section 2376(1)". See Codification note above.

2018—Pub. L. 115–232, §836(d)(8)(F), substituted "products and services as commercial products and commercial services" for "items as commercial items" in section catchline.

Subsec. (a). Pub. L. 115–232, §836(d)(6)(A), substituted "products and" for "items and" and "commercial products and commercial services, respectively," for "commercial items".

Subsec. (b). Pub. L. 115–232, §836(d)(6)(B), substituted "commercial services" for "commercial items".

2016—Pub. L. 114–328, §878(b)(1), which directed amendment of "Section 2380A of title 10" by striking out the section catchline and inserting "§2380a. Treatment of certain items as commercial items", was executed by redesignating this section as section 2380a and substituting "Treatment of certain items as commercial items" for "Treatment of goods and services provided by nontraditional defense contractors as commercial items" in section catchline, to reflect the probable intent of Congress.

Pub. L. 114–328, §878(a), designated existing provisions as subsec. (a), inserted heading, and added subsec. (b).

Statutory Notes and Related Subsidiaries

Effective Date of 2021 Amendment

Effective Date of 2018 Amendment

§3458. Authority to acquire innovative commercial products and commercial services using general solicitation competitive procedures

(a) Authority.—The Secretary of Defense and the Secretaries of the military departments may acquire innovative commercial products and commercial services through a competitive selection of proposals resulting from a general solicitation and the peer review of such proposals.

(b) Treatment as Competitive Procedures.—Use of general solicitation competitive procedures under subsection (a) shall be considered to be use of competitive procedures for purposes of chapter 221 of this title.

(c) Limitations.—(1) The Secretary may not enter into a contract or agreement in excess of $100,000,000 using the authority under subsection (a) without a written determination from the Under Secretary of Defense for Acquisition and Sustainment or the relevant service acquisition executive of the efficacy of the effort to meet mission needs of the Department of Defense or the relevant military department.

(2) Contracts or agreements entered into using the authority under subsection (a) shall be fixed-price, including fixed-price incentive contracts.

(3) Notwithstanding section 3451(1) of this title, products and services acquired using the authority under subsection (a) shall be treated as commercial products and commercial services.

(d) Congressional Notification Required.—(1) Not later than 45 days after the award of a contract for an amount exceeding $100,000,000 using the authority in subsection (a), the Secretary shall notify the congressional defense committees of such award.

(2) Notice of an award under paragraph (1) shall include the following:

(A) Description of the innovative commercial product or commercial service acquired.

(B) Description of the requirement, capability gap, or potential technological advancement with respect to which the innovative commercial product or commercial service acquired provides a solution or a potential new capability.

(D) Identification of the contractor awarded the contract.

(e) Innovative Defined.—In this section, the term "innovative" means—

(1) any technology, process, or method, including research and development, that is new as of the date of submission of a proposal; or

(2) any application that is new as of the date of submission of a proposal of a technology, process, or method existing as of such date.

(Added §2380c, renumbered §3458, and amended Pub. L. 117–81, div. A, title VIII, §803(a)(1), (b)(1), (3), Dec. 27, 2021, 135 Stat. 1814–1816; Pub. L. 117–263, div. A, title VIII, §814(a), Dec. 23, 2022, 136 Stat. 2707.)

Editorial Notes

Amendments

2022—Subsec. (c)(2). Pub. L. 117–263 substituted "fixed-price incentive contracts" for "fixed-price incentive fee contracts".

2021—Pub. L. 117–81, §803(b)(1), renumbered section 2380c of this title as this section.

Subsec. (b). Pub. L. 117–81, §803(b)(3)(A), substituted "chapter 221" for "chapter 137".

Subsec. (c)(3). Pub. L. 117–81, §803(b)(3)(B), substituted "section 3451(1)" for "section 2376(1)".

Statutory Notes and Related Subsidiaries

Effective Date of 2021 Amendment

Pub. L. 117–81, div. A, title VIII, §803(b)(4), Dec. 27, 2021, 135 Stat. 1816, provided that: "The transfer, redesignation, and amendments made by this subsection [amending this section and repealing provisions set out as a note under section 2302 of this title] shall take [sic] as if included in title XVIII of the William M. (Mac) Thornberry National Defense Authorization Act for Fiscal Year 2021 (Public Law 116–283)."

Focused Commercial Solutions Openings Opportunities

Pub. L. 118–31, div. A, title VIII, §813, Dec. 22, 2023, 137 Stat. 325, provided that:

"(a) Requirement.—During each fiscal year beginning after the date of the enactment of this Act [Dec. 22, 2023], the Secretary of Defense, in coordination with the service acquisition executives of each military department, shall exercise the authority under section 3458 of title 10, United States Code, not less than four times to acquire goods or services addressing the mission needs of a geographic combatant command.

"(b) Execution.—With respect to acquisition carried out under section 3458 of title 10, United States Code, pursuant to subsection (a), the Secretary of Defense shall—

"(1) assign the responsibility for carrying out such acquisition to a program executive officer and a head of a science and technology reinvention laboratory from the same military department, who shall co-lead such acquisition; and

"(2) ensure that the program executive officer and the head of a science and technology reinvention laboratory assigned as co-leads under paragraph (1) have similar existing requirements and funding for transitioning technologies to acquisition programs within the area of focus for such acquisition.

"(c) Sunset.—Subsection (a) shall expire on September 30, 2027.

"(d) Definitions.—In this section:

"(1) The terms 'military department' and 'services acquisition executive' have the meanings given such terms in section 101(a) of title 10, United States Code.

"(2) The term 'program executive officer' has the meaning given such term in section 1737(a) of title 10, United States Code.

"(3) The term 'science and technology reinvention laboratory' means a science and technology reinvention laboratory designated under section 4121(b) of title 10, United States Code."

Data Collection

Pub. L. 117–81, div. A, title VIII, §803(a)(3), Dec. 27, 2021, 135 Stat. 1815, provided that:

"(A) In general.—The Secretary of Defense and each Secretary of a military department shall collect and analyze data on the use of the authority under section 2380c of title 10, United States Code [now 10 U.S.C. 3458], as added by paragraph (1), for the purposes of—

"(i) developing and sharing best practices for achieving the objectives of the authority;

"(ii) gathering information on the implementation of the authority and related policy issues; and

"(iii) informing the congressional defense committees on the use of the authority.

"(B) Plan required.—The authority under section 2380c [now 3458] of title 10, United States Code, as added by paragraph (1), may not be exercised by the Secretary of Defense or any Secretary of a military department during the period beginning on October 1, 2022, and ending on the date on which the Secretary of Defense submits to the congressional defense committees a completed plan for carrying out the data collection required under paragraph (1).

"(C) Congressional defense committees; military department defined.—In this paragraph, the terms 'congressional defense committees' and 'military department' have the meanings given such terms in section 101(a) of title 10, United States Code."

References; Savings Provision; Rule of Construction

Pub. L. 117–81, div. A, title VIII, §803(b)(5), Dec. 27, 2021, 135 Stat. 1816, provided that: "Sections 1883 through 1885 of the William M. (Mac) Thornberry National Defense Authorization Act for Fiscal Year 2021 (Public Law 116–283) [set out as notes preceding section 3001 of this title] shall apply with respect to the transfers, redesignations, and amendments made under this subsection [amending this section and repealing provisions set out as a note under section 2302 of this title] as if such transfers, redesignations, and amendments were made under title XVIII of such Act."