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HR 1107 RFS 
(i) required to implement provisions of law or executive or-
ders applicable to subcontractors furnishing commercial items 
or commercial components; 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 pur-
suant to subparagraph (B) may be used in a contract, and only 
the contract clauses referred to in subparagraph (C) may be re-
quired to be used in a subcontract, for the acquisition of commer-
cial items or commercial components by or for an executive agen-
cy. 
(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 deter-
mining 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 in-
clude 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 
items— 
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(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 pro-
curing 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 cat-
egory 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 con-
tract 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 fol-
lows: 
(i) Commercial services procured for support of a commer-
cial item, as described in section 103(5) of this title. 
(ii) Any other category of commercial services that the Ad-
ministrator for Federal Procurement Policy designates in the 
Federal Acquisition Regulation for the purposes of this sub-
paragraph 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 
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