-CITE- 10 USC CHAPTER 140 - PROCUREMENT OF COMMERCIAL ITEMS 01/03/2007 -EXPCITE- TITLE 10 - ARMED FORCES Subtitle A - General Military Law PART IV - SERVICE, SUPPLY, AND PROCUREMENT CHAPTER 140 - PROCUREMENT OF COMMERCIAL ITEMS -HEAD- CHAPTER 140 - PROCUREMENT OF COMMERCIAL ITEMS -MISC1- Sec. 2375. Relationship of commercial item provisions to other provisions of law. 2376. Definitions. 2377. Preference for acquisition of commercial items. 2378. Procurement of copier paper containing specified percentages of post-consumer recycled content. 2379. Requirement for determination by Secretary of Defense and notification to Congress before procurement of major weapon systems as commercial items. AMENDMENTS 2006 - Pub. L. 109-163, div. A, title VIII, Sec. 803(a)(2), Jan. 6, 2006, 119 Stat. 3371, added item 2379. 1997 - Pub. L. 105-85, div. A, title III, Sec. 350(b), Nov. 18, 1997, 111 Stat. 1692, added item 2378. -End- -CITE- 10 USC Sec. 2375 01/03/2007 -EXPCITE- TITLE 10 - ARMED FORCES Subtitle A - General Military Law PART IV - SERVICE, SUPPLY, AND PROCUREMENT CHAPTER 140 - PROCUREMENT OF COMMERCIAL ITEMS -HEAD- Sec. 2375. Relationship of commercial item provisions to other provisions of law -STATUTE- (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 34 of the Office of Federal Procurement Policy Act (41 U.S.C. 430)). (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. -SOURCE- (Added Pub. L. 103-355, title VIII, Sec. 8102, Oct. 13, 1994, 108 Stat. 3390; amended Pub. L. 105-85, div. A, title X, Sec. 1073(a)(51), Nov. 18, 1997, 111 Stat. 1903; Pub. L. 107-107, div. A, title X, Sec. 1048(a)(18), Dec. 28, 2001, 115 Stat. 1223.) -MISC1- AMENDMENTS 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)". 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 251 of Title 41, Public Contracts. -End- -CITE- 10 USC Sec. 2376 01/03/2007 -EXPCITE- TITLE 10 - ARMED FORCES Subtitle A - General Military Law PART IV - SERVICE, SUPPLY, AND PROCUREMENT CHAPTER 140 - PROCUREMENT OF COMMERCIAL ITEMS -HEAD- Sec. 2376. Definitions -STATUTE- In this chapter: (1) The terms "commercial item", "nondevelopmental item", "component", and "commercial component" have the meanings provided in section 4 of the Office of Federal Procurement Policy Act (41 U.S.C. 403). (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. -SOURCE- (Added Pub. L. 103-355, title VIII, Sec. 8103, Oct. 13, 1994, 108 Stat. 3390; amended Pub. L. 107-107, div. A, title X, Sec. 1048(a)(19), Dec. 28, 2001, 115 Stat. 1223; Pub. L. 107-296, title XVII, Sec. 1704(b)(1), Nov. 25, 2002, 116 Stat. 2314.) -MISC1- AMENDMENTS 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". 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. -End- -CITE- 10 USC Sec. 2377 01/03/2007 -EXPCITE- TITLE 10 - ARMED FORCES Subtitle A - General Military Law PART IV - SERVICE, SUPPLY, AND PROCUREMENT CHAPTER 140 - PROCUREMENT OF COMMERCIAL ITEMS -HEAD- Sec. 2377. Preference for acquisition of commercial items -STATUTE- (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 (C) essential physical characteristics; (2) such requirements are defined so that 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, may be procured to fulfill such 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 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 items or nondevelopmental items other than commercial items to meet the needs of the agency; (2) require prime contractors and subcontractors at all levels under the agency contracts to incorporate commercial items or nondevelopmental items other than commercial items as components of items supplied to the 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 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 agency's needs are not available, nondevelopmental items other than commercial items 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 items; and (6) require training of appropriate personnel in the acquisition of commercial items. (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; and (B) before soliciting bids or proposals for a contract in excess of the simplified acquisition threshold. (2) The head of an agency shall use the results of market research to determine whether there are 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 available that - (A) meet the agency's requirements; (B) could be modified to meet the agency's requirements; or (C) could meet the agency's requirements if those requirements were modified to a reasonable extent. (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). -SOURCE- (Added Pub. L. 103-355, title VIII, Sec. 8104(a), Oct. 13, 1994, 108 Stat. 3390.) -End- -CITE- 10 USC Sec. 2378 01/03/2007 -EXPCITE- TITLE 10 - ARMED FORCES Subtitle A - General Military Law PART IV - SERVICE, SUPPLY, AND PROCUREMENT CHAPTER 140 - PROCUREMENT OF COMMERCIAL ITEMS -HEAD- Sec. 2378. Procurement of copier paper containing specified percentages of post-consumer recycled content -STATUTE- (a) Procurement Requirement. - (1) Except as provided in subsections (b) and (c), a department or agency of the Department of Defense may not procure copying machine paper after the applicable date specified in paragraph (2) unless the percentage of post-consumer recycled content of the paper meets the percentage then in effect under such paragraph. (2) The percentage of post-consumer recycled content of paper required under paragraph (1) is as follows: (A) 20 percent as of January 1, 1998. (B) 30 percent as of January 1, 1999. (C) 50 percent as of January 1, 2004. (b) Exceptions. - A department or agency of the Department of Defense is not required to procure copying machine paper containing a percentage of post-consumer recycled content that meets the applicable requirement in subsection (a) if the Secretary concerned determines that one or more of the following circumstances apply with respect to that procurement: (1) The cost of procuring copying machine paper satisfying the applicable requirement significantly exceeds the cost of procuring copying machine paper containing a percentage of post- consumer recycled content that does not meet such requirement. The Secretary concerned shall establish the cost differential to be applied under this paragraph. (2) Copying machine paper containing a percentage of post- consumer recycled content meeting such requirement is not reasonably available within a reasonable period of time. (3) Copying machine paper containing a percentage of post- consumer recycled content meeting such requirement does not meet performance standards of the department or agency for copying machine paper. (c) Effect of Inability To Meet Goal in 2004. - (1) In the case of the requirement that will take effect on January 1, 2004, pursuant to subsection (a)(2)(C), the requirement shall not take effect with respect to a military department or Defense Agency if the Secretary of Defense determines that the department or agency will be unable to meet such requirement by that date. (2) The Secretary shall submit to Congress written notice of any determination made under paragraph (1) and the reasons for the determination. The Secretary shall submit such notice, if at all, not later than January 1, 2003. (d) Secretary Concerned Defined. - In this section, the term "Secretary concerned" means the Secretary of each military department and the Secretary of Defense with respect to the Defense Agencies. -SOURCE- (Added Pub. L. 105-85, div. A, title III, Sec. 350(a), Nov. 18, 1997, 111 Stat. 1691.) -End- -CITE- 10 USC Sec. 2379 01/03/2007 -EXPCITE- TITLE 10 - ARMED FORCES Subtitle A - General Military Law PART IV - SERVICE, SUPPLY, AND PROCUREMENT CHAPTER 140 - PROCUREMENT OF COMMERCIAL ITEMS -HEAD- Sec. 2379. Requirement for determination by Secretary of Defense and notification to Congress before procurement of major weapon systems as commercial items -STATUTE- (a) Requirement for Determination and Notification. - A major weapon system of the Department of Defense may be treated as a commercial item, or purchased under procedures established for the procurement of commercial items, only if - (1) the Secretary of Defense determines that - (A) the major weapon system is a commercial item, as defined in section 4(12) of the Office of Federal Procurement Policy Act (41 U.S.C. 403(12)); 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 and Components as Commercial Items. - 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. (c) 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. (d) 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 of this title). -SOURCE- (Added Pub. L. 109-163, div. A, title VIII, Sec. 803(a)(1), Jan. 6, 2006, 119 Stat. 3370.) -MISC1- EFFECTIVE DATE Pub. L. 109-163, div. A, title VIII, Sec. 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." -End-