§ 264. — Relationship of commercial item provisions to other provisions of law.
[Laws in effect as of January 24, 2002]
[Document not affected by Public Laws enacted between
January 24, 2002 and December 19, 2002]
[CITE: 41USC264]
TITLE 41--PUBLIC CONTRACTS
CHAPTER 4--PROCUREMENT PROCEDURES
SUBCHAPTER IV--PROCUREMENT PROVISIONS
Sec. 264. Relationship of commercial item provisions to other
provisions of law
(a) Applicability of subchapter
Unless otherwise specifically provided, nothing in this section,
section 264a of this title, or section 264b of this title shall be
construed as providing that any other provision of this subchapter
relating to procurement is inapplicable to the procurement of commercial
items.
(b) List of laws inapplicable to contracts for acquisition of commercial
items
No contract for the procurement of a commercial item entered into by
the head of an executive agency shall be subject to any law properly
listed in the Federal Acquisition Regulation (pursuant to section 430 of
this title).
(June 30, 1949, ch. 288, title III, Sec. 314, as added Pub. L. 103-355,
title VIII, Sec. 8201, Oct. 13, 1994, 108 Stat. 3394.)
Effective Date
For effective date and applicability of section, see section 10001
of Pub. L. 103-355, set out as an Effective Date of 1994 Amendment note
under section 251 of this title.
Regulations
Section 8002 of Pub. L. 103-355 provided that:
``(a) In General.--The Federal Acquisition Regulation shall provide
regulations to implement paragraphs (12) through (15) of section 4 of
the Office of Federal Procurement Policy Act [41 U.S.C. 403(12)-(15)],
chapter 140 of title 10, United States Code, and sections 314 through
314B of the Federal Property and Administrative Services Act of 1949 [41
U.S.C. 264-264b].
``(b) Contract Clauses.--(1) The regulations prescribed under
subsection (a) shall contain a list of contract clauses to be included
in contracts for the acquisition of commercial end items. Such list
shall, to the maximum extent practicable, include only those contract
clauses--
``(A) that are required to implement provisions of law or
executive orders applicable to acquisitions of commercial items or
commercial components, as the case may be; or
``(B) that are determined to be consistent with standard
commercial practice.
``(2) Such regulations shall provide that a prime contractor shall
not be required by the Federal Government to apply to any of its
divisions, subsidiaries, affiliates, subcontractors, or suppliers that
are furnishing commercial items any contract clause except those--
``(A) that are required to implement provisions of law or
executive orders applicable to subcontractors furnishing commercial
items or commercial components, as the case may be; or
``(B) that are determined to be consistent with standard
commercial practice.
``(3) To the maximum extent practicable, only the contract clauses
listed pursuant to paragraph (1) may be used in a contract, and only the
contract clauses referred to in paragraph (2) may be required to be used
in a subcontract, for the acquisition of commercial items or commercial
components by or for an executive agency.
``(4) The Federal Acquisition Regulation shall provide standards and
procedures for waiving the use of contract clauses required pursuant to
paragraph (1), other than those required by law, including standards for
determining the cases in which a waiver is appropriate.
``(5) For purposes of this subsection, the term `subcontract'
includes a transfer of commercial items between divisions, subsidiaries,
or affiliates of a contractor or subcontractor.
``(c) Market Acceptance.--(1) 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--
``(A) have either--
``(i) achieved commercial market acceptance; or
``(ii) been satisfactorily supplied to an executive agency
under current or recent contracts for the same or similar
requirements; and
``(B) otherwise meet the item description, specifications, or
other criteria prescribed in the public notice and solicitation
relating to the contract.
``(2) The Federal Acquisition Regulation shall provide guidance to
ensure that the criteria for determining commercial market acceptance
include the consideration of--
``(A) the minimum needs of the executive agency concerned; and
``(B) the entire relevant commercial market, including small
businesses.
``(d) Use of Firm, Fixed Price Contracts.--The Federal Acquisition
Regulation shall include, for acquisitions of commercial items--
``(1) a requirement that firm, fixed price contracts or fixed
price with economic price adjustment contracts be used to the
maximum extent practicable; and
``(2) a prohibition on use of cost type contracts.
``(e) Contract Quality Requirements.--The regulations prescribed
under subsection (a) shall include provisions that--
``(1) permit, 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 Government to
inspect or test the commercial items before the contractor's tender
of those items for acceptance by the Government;
``(2) 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 such
warranties for the repair and replacement of commercial items; and
``(3) set forth guidance regarding the use of past performance
of commercial items and sources as a factor in contract award
decisions.
``(f) Defense Contract Clauses.--(1) Section 824(b) of the National
Defense Authorization Act for Fiscal Years 1990 and 1991 (Public Law
101-189; [former] 10 U.S.C. 2325 note) shall cease to be effective on
the date on which the regulations implementing this section become
effective [Oct. 1, 1995, see 60 F.R. 48231, Sept. 18, 1995].
``(2) Notwithstanding subsection (b), a contract of the Department
of Defense entered into before the date on which section 824(b) ceases
to be effective under paragraph (1), and a subcontract entered into
before such date under such a contract, may include clauses developed
pursuant to paragraphs (2) and (3) of section 824(b) of the National
Defense Authorization Act for Fiscal Years 1990 and 1991 (Public Law
101-189; [former] 10 U.S.C. 2325 note).''
Provisions Not Affected by Title VIII of Pub. L. 103-355
Section 8304 of title VIII of Pub. L. 103-355 provided that:
``Nothing in this title [enacting this section, sections 264a, 264b, and
430 of this title, sections 2375 to 2377 of Title 10, Armed Forces, and
section 334 of former Title 40, Public Buildings, Property, and Works,
now section 3707 of Title 40, amending sections 57, 58, 253g, 254, 403,
416, 418, 422, 423, and 701 of this title, sections 2306, 2320, 2321,
2384, 2393, 2397, 2397b, 2397c, 2402, 2408, and 2410b of Title 10,
section 1368 of Title 33, Navigation and Navigable Waters, and section
40118 of Title 49, Transportation, repealing section 424 of this title
and section 2325 of Title 10, enacting provisions set out as notes under
this section, sections 264b and 430 of this title, and section 7606 of
Title 42, The Public Health and Welfare, and amending provisions set out
as notes under sections 2301 and 2327 of Title 10] shall be construed as
modifying or superseding, or as intended to impair or restrict,
authorities or responsibilities under--
``(1) section 2323 of title 10, United States Code, or 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 (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 (41 U.S.C. 46-48c).''
