Preference for commercial products and commercial services

41 U.S.C. § 3307

• Title: 41 — Public Contracts
• Chapter: 33 — PLANNING AND SOLICITATION

Text

(a) Relationship of Provisions of Law to Procurement of Commercial Products and Commercial Services.—
(1) This division.—Unless otherwise specifically provided, all other provisions in this division also apply to the procurement of commercial products and commercial services.
(2) Laws listed in federal acquisition regulation.—A contract for the procurement of a commercial product or commercial service entered into by the head of an executive agency is not subject to a law properly listed in the Federal Acquisition Regulation pursuant to section 1906 of this title.
(b) Preference.—The head of each executive agency shall ensure that, to the maximum extent practicable—
(1) requirements of the executive agency with respect to a procurement of supplies or services are stated in terms of—
(A) functions to be performed;
(B) performance required; or
(C) essential physical characteristics;
(2) those requirements are defined so that commercial services or commercial products or, to the extent that commercial products suitable to meet the executive agency's needs are not available, nondevelopmental items other than commercial products may be procured to fulfill those 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 those requirements.
(c) Implementation.—The head of each executive agency shall ensure that procurement officials in that executive agency, to the maximum extent practicable—
(1) acquire commercial services or commercial products or nondevelopmental items other than commercial products to meet the needs of the executive agency;
(2) require that prime contractors and subcontractors at all levels under contracts of the executive agency incorporate commercial services or commercial products or nondevelopmental items other than commercial products as components of items supplied to the executive agency;
(3) modify requirements in appropriate cases to ensure that the requirements can be met by commercial services or commercial products or, to the extent that commercial products suitable to meet the executive 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 executive agency's needs are not available, nondevelopmental items other than commercial products in response to the executive agency solicitations;
(5) revise the executive agency's procurement policies, practices, and procedures not required by law to reduce any impediments in those policies, practices, and procedures to the acquisition of commercial products and commercial services; and
(6) require training of appropriate personnel in the acquisition of commercial products and commercial services.
(d) Market Research.—
(1) When to be used.—The head of an executive agency shall conduct market research appropriate to the circumstances—
(A) before developing new specifications for a procurement by that executive agency; and
(B) before soliciting bids or proposals for a contract in excess of the simplified acquisition threshold.
(2) Use of results.—The head of an executive agency shall use the results of market research to determine whether commercial services or commercial products or, to the extent that commercial products suitable to meet the executive agency's needs are not available, nondevelopmental items other than commercial products are available that—
(A) meet the executive agency's requirements;
(B) could be modified to meet the executive agency's requirements; or
(C) could meet the executive agency's requirements if those requirements were modified to a reasonable extent.
(3) Only minimum information required to be submitted.—In conducting market research, the head of an executive 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) Documentation.—The head of the agency shall document the results of market research in a manner appropriate to the size and complexity of the acquisition.
(e) Regulations.—
(1) In general.—The Federal Acquisition Regulation shall provide regulations to implement this section, sections 102, 103, 103a, 104, 105, and 110 of this title, and chapter 247 of title 10.
(2) Contract clauses.—
(A) Definition.—In this paragraph, the term "subcontract" includes a transfer of commercial products or commercial services between divisions, subsidiaries, or affiliates of a contractor or subcontractor.
(B) List of clauses to be included.—The regulations prescribed under paragraph (1) shall contain a list of contract clauses to be included in contracts for the acquisition of end items that are commercial products. To the maximum extent practicable, the list shall include only those contract clauses that are—
(i) required to implement provisions of law or executive orders applicable to acquisitions of commercial products, commercial components, or commercial services; or
(ii) determined to be consistent with standard commercial practice.
(C) Requirements of prime contractor.—The regulations shall provide that the Federal Government shall not require a prime contractor to apply to any of its divisions, subsidiaries, affiliates, subcontractors, or suppliers that are furnishing commercial products or commercial services any contract clause except those that are—
(i) required to implement provisions of law or executive orders applicable to subcontractors furnishing commercial products, commercial components, or commercial services; or
(ii) determined to be consistent with standard commercial practice.
(D) Clauses that may be used in a contract.—To the maximum extent practicable, only the contract clauses listed pursuant to subparagraph (B) may be used in a contract, and only the contract clauses referred to in subparagraph (C) may be required to be used in a subcontract, for the acquisition of commercial products, commercial components, or commercial services by or for an executive agency.
(E) Waiver of contract clauses.—The Federal Acquisition Regulation shall provide standards and procedures for waiving the use of contract clauses required pursuant to subparagraph (B), other than those required by law, including standards for determining the cases in which a waiver is appropriate.
(3) Market acceptance.—
(A) Requirement of offerors.—The Federal Acquisition Regulation shall provide that under appropriate conditions the head of an executive agency may require offerors to demonstrate that the items offered—
(i) have achieved commercial market acceptance or been satisfactorily supplied to an executive agency under current or recent contracts for the same or similar requirements; and
(ii) otherwise meet the item description, specifications, or other criteria prescribed in the public notice and solicitation relating to the contract.
(B) Regulation to provide guidance on criteria.—The Federal Acquisition Regulation shall provide guidance to ensure that the criteria for determining commercial market acceptance include the consideration of—
(i) the minimum needs of the executive agency concerned; and
(ii) the entire relevant commercial market, including small businesses.
(4) Provisions relating to types of contracts.—
(A) Types of contracts that may be used.—The Federal Acquisition Regulation shall include, for acquisitions of commercial products or commercial services—
(i) a requirement that firm, fixed price contracts or fixed price with economic price adjustment contracts be used to the maximum extent practicable;
(ii) a prohibition on use of cost type contracts; and
(iii) subject to subparagraph (B), authority for use of a time-and-materials or labor-hour contract for the procurement of commercial services that are commonly sold to the general public through those contracts and are purchased by the procuring agency on a competitive basis.
(B) When time-and-materials or labor-hour contract may be used.—A time-and-materials or labor-hour contract may be used pursuant to the authority referred to in subparagraph (A)(iii)—
(i) only for a procurement of commercial services in a category of commercial services described in subparagraph (C); and
(ii) only if the contracting officer for the procurement—
(I) executes a determination and findings that no other contract type is suitable;
(II) includes in the contract a ceiling price that the contractor exceeds at its own risk; and
(III) authorizes a subsequent change in the ceiling price only on a determination, documented in the contract file, that it is in the best interest of the procuring agency to change the ceiling price.
(C) Categories of commercial services.—The categories of commercial services referred to in subparagraph (B) are as follows:
(i) Commercial services procured for support of a commercial product, as described in section 103a(1) of this title.
(ii) Any other category of commercial services that the Administrator for Federal Procurement Policy designates in the Federal Acquisition Regulation for the purposes of this subparagraph on the basis that—
(I) the commercial services in the category are of a type of commercial services that are commonly sold to the general public through use of time-and-materials or labor-hour contracts; and
(II) it would be in the best interests of the Federal Government to authorize use of time-and-materials or labor-hour contracts for purchases of the commercial services in the category.
(5) Contract quality requirements.—Regulations prescribed under paragraph (1) shall include provisions that—
(A) allow, to the maximum extent practicable, a contractor under a commercial products acquisition to use the existing quality assurance system of the contractor as a substitute for compliance with an otherwise applicable requirement for the Federal Government to inspect or test the commercial products before the contractor's tender of those products for acceptance by the Federal Government;
(B) require that, to the maximum extent practicable, the executive agency take advantage of warranties (including extended warranties) offered by offerors of commercial products and use those warranties for the repair and replacement of commercial products; and
(C) set forth guidance regarding the use of past performance of commercial products and sources as a factor in contract award decisions.

History

(Pub. L. 111–350, §3, Jan. 4, 2011, 124 Stat. 3754; Pub. L. 115–232, div. A, title VIII, §836(b)(10)(A), (B)(i), Aug. 13, 2018, 132 Stat. 1861–1863; Pub. L. 116–92, div. A, title VIII, §818(b), Dec. 20, 2019, 133 Stat. 1488; Pub. L. 117–81, div. A, title XVII, §1702(h)(13), Dec. 27, 2021, 135 Stat. 2158.)

Editorial Notes

Subsection (a)(1) is substituted for 41 U.S.C. 264(a) for clarity.
In subsection (e), the text of section 8002(f) of the Federal Acquisition Streamlining Act of 1994 (Public Law 103–355, 41 U.S.C. 264 note) is omitted as obsolete.
In subsection (e)(2)(B)(i) and (C)(i), the words "as the case may be" are omitted as unnecessary.

Editorial Notes

Amendments
2021—Subsec. (e)(1). Pub. L. 117–81 substituted "chapter 247" for "chapter 140".
2019—Subsec. (d)(4). Pub. L. 116–92 added par. (4).
2018—Pub. L. 115–232, §836(b)(10)(B)(i), substituted "Preference for commercial products and commercial services" for "Preference for commercial items" in section catchline.
Subsec. (a). Pub. L. 115–232, §836(b)(10)(A)(i)(I), substituted "Commercial Products and Commercial Services" for "Commercial Items" in heading.
Subsec. (a)(1). Pub. L. 115–232, §836(b)(10)(A)(i)(II), substituted "commercial products and commercial services" for "commercial items".
Subsec. (a)(2). Pub. L. 115–232, §836(b)(10)(A)(i)(III), substituted "a commercial product or commercial service" for "a commercial item".
Subsec. (b)(2). Pub. L. 115–232, §836(b)(10)(A)(ii)(I), substituted "commercial services or commercial products or, to the extent that commercial products suitable to meet the executive 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 executive agency's needs are not available, nondevelopmental items other than commercial items".
Subsec. (b)(3). Pub. L. 115–232, §836(b)(10)(A)(ii)(II), substituted "commercial services, commercial products, and nondevelopmental items other than commercial products" for "commercial items and nondevelopmental items other than commercial items".
Subsec. (c)(1), (2). Pub. L. 115–232, §836(b)(10)(A)(iii)(I), substituted "commercial services or commercial products or nondevelopmental items other than commercial products" for "commercial items or nondevelopmental items other than commercial items".
Subsec. (c)(3), (4). Pub. L. 115–232, §836(b)(10)(A)(iii)(II), substituted "commercial services or commercial products or, to the extent that commercial products suitable to meet the executive 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 executive agency's needs are not available, nondevelopmental items other than commercial items".
Subsec. (c)(5), (6). Pub. L. 115–232, §836(b)(10)(A)(iii)(III), substituted "commercial products and commercial services" for "commercial items".
Subsec. (d)(2). Pub. L. 115–232, §836(b)(10)(A)(iv), in introductory provisions, substituted "commercial services or commercial products or, to the extent that commercial products suitable to meet the executive 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 executive agency's needs are not available, nondevelopmental items other than commercial items".
Subsec. (e)(1). Pub. L. 115–232, §836(b)(10)(A)(v)(I), inserted "103a, 104," after "sections 102, 103,".
Subsec. (e)(2)(A). Pub. L. 115–232, §836(b)(10)(A)(v)(II), substituted "commercial products or commercial services" for "commercial items".
Subsec. (e)(2)(B). Pub. L. 115–232, §836(b)(10)(A)(v)(III), (IV), in introductory provisions, substituted "end items that are commercial products" for "commercial end items" and, in cl. (i), substituted "commercial products, commercial components, or commercial services" for "commercial items or commercial components".
Subsec. (e)(2)(C). Pub. L. 115–232, §836(b)(10)(A)(v)(IV), (V), in introductory provisions, substituted "commercial products or commercial services" for "commercial items" and, in cl. (i), substituted "commercial products, commercial components, or commercial services" for "commercial items or commercial components".
Subsec. (e)(2)(D). Pub. L. 115–232, §836(b)(10)(A)(v)(IV), substituted "commercial products, commercial components, or commercial services" for "commercial items or commercial components".
Subsec. (e)(4)(A). Pub. L. 115–232, §836(b)(10)(A)(v)(VI), substituted "commercial products or commercial services" for "commercial items" in introductory provisions.
Subsec. (e)(4)(C)(i). Pub. L. 115–232, §836(b)(10)(A)(v)(VII), substituted "commercial product, as described in section 103a(1)" for "commercial item, as described in section 103(5)".
Subsec. (e)(5). Pub. L. 115–232, §836(b)(10)(A)(v)(VIII), substituted "products" for "items" wherever appearing.

Statutory Notes and Related Subsidiaries

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.