2011 US Code
Title 41 - Public Contracts
Subtitle I - Federal Procurement Policy (§§ 101 - 4711)
Division C - Procurement (§§ 3101 - 4711)
Chapter 33 - PLANNING AND SOLICITATION (§§ 3301 - 3311)
Section 3307 - Preference for commercial items
View MetadataPublication Title | United States Code, 2006 Edition, Supplement 5, Title 41 - PUBLIC CONTRACTS |
Category | Bills and Statutes |
Collection | United States Code |
SuDoc Class Number | Y 1.2/5: |
Contained Within | Title 41 - PUBLIC CONTRACTS Subtitle I - Federal Procurement Policy Division C - Procurement CHAPTER 33 - PLANNING AND SOLICITATION Sec. 3307 - Preference for commercial items |
Contains | section 3307 |
Date | 2011 |
Laws in Effect as of Date | January 3, 2012 |
Positive Law | Yes |
Disposition | standard |
Source Credit | Pub. L. 111-350, §3, Jan. 4, 2011, 124 Stat. 3754. |
Statutes at Large References | 108 Stat. 3386, 3394 117 Stat. 1672 124 Stat. 3754 |
Public Law References | Public Law 103-355, Public Law 108-136, Public Law 111-350 |
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(a)
(1)
(2)
(b)
(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 items or, to the extent that commercial items suitable to meet the executive agency's needs are not available, nondevelopmental items other than commercial items may be procured to fulfill those requirements; and
(3) offerors of commercial items and nondevelopmental items other than commercial items are provided an opportunity to compete in any procurement to fill those requirements.
(c)
(1) acquire commercial items or nondevelopmental items other than commercial items to meet the needs of the executive agency;
(2) require that prime contractors and subcontractors at all levels under contracts of the executive agency incorporate commercial items or nondevelopmental items other than commercial items as components of items supplied to the executive agency;
(3) modify requirements in appropriate cases to ensure that the requirements can be met by commercial items or, to the extent that commercial items suitable to meet the executive agency's needs are not available, nondevelopmental items other than commercial items;
(4) state specifications in terms that enable and encourage bidders and offerors to supply commercial items or, to the extent that commercial items suitable to meet the executive agency's needs are not available, nondevelopmental items other than commercial items in response to the executive agency solicitations;
(5) revise the executive agency's procurement policies, practices, and procedures not required by law to reduce any impediments in those policies, practices, and procedures to the acquisition of commercial items; and
(6) require training of appropriate personnel in the acquisition of commercial items.
(d)
(1)
(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)
(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)
(e)
(1)
(2)
(A)
(B)
(i) required to implement provisions of law or executive orders applicable to acquisitions of commercial items or commercial components; or
(ii) determined to be consistent with standard commercial practice.
(C)
(i) required to implement provisions of law or executive orders applicable to subcontractors furnishing commercial items or commercial components; or
(ii) determined to be consistent with standard commercial practice.
(D)
(E)
(3)
(A)
(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)
(i) the minimum needs of the executive agency concerned; and
(ii) the entire relevant commercial market, including small businesses.
(4)
(A)
(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)
(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)
(i) Commercial services procured for support of a commercial item, as described in section 103(5) of this title.
(ii) Any other category of commercial services that the Administrator for Federal Procurement Policy designates in the Federal Acquisition Regulation for the purposes of this subparagraph on the basis that—
(I) the commercial services in the category are of a type of commercial services that are commonly sold to the general public through use of time-and-materials or labor-hour contracts; and
(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)
(A) allow, to the maximum extent practicable, a contractor under a commercial items acquisition to use the existing quality assurance system of the contractor as a substitute for compliance with an otherwise applicable requirement for the Federal Government to inspect or test the commercial items before the contractor's tender of those items for acceptance by the Federal Government;
(B) require that, to the maximum extent practicable, the executive agency take advantage of warranties (including extended warranties) offered by offerors of commercial items and use those warranties for the repair and replacement of commercial items; and
(C) set forth guidance regarding the use of past performance of commercial items and sources as a factor in contract award decisions.
(Pub. L. 111–350, §3, Jan. 4, 2011, 124 Stat. 3754.)
Revised Section | Source (U.S. Code) | Source (Statutes at Large) |
---|---|---|
3307(a) | 41:264. | June 30, 1949, ch. 288, title III, §§314, 314B, as added Pub. L. 103–355, title VIII, §§8201, 8203, Oct. 13, 1994, 108 Stat. 3394. |
3307(b) | 41:264b(a). | |
3307(c) | 41:264b(b). | |
3307(d) | 41:264b(c). | |
3307(e) | 41:264 note. | Pub. L. 103–355, title VIII, §8002, Oct. 13, 1994, 108 Stat. 3386; Pub. L. 108–136, title XIV, 1432, Nov. 24, 2003, 117 Stat. 1672. |
Subsection (a)(1) is substituted for 41 U.S.C. 264(a) for clarity.
In subsection (e), the text of section 8002(f) of the Federal Acquisition Streamlining Act of 1994 (Public Law 103–355, 41 U.S.C. 264 note) is omitted as obsolete.
In subsection (e)(2)(B)(i) and (C)(i), the words “as the case may be” are omitted as unnecessary.
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