303
public domain and if requested by the offeror and marked
as proprietary, shall be treated by the Government as con-
fidential and exempt from disclosure to the extent permitted
by section 552 of title 5. In this paragraph, the term ‘con-
tract definitization’ means agreement to contractual terms,
specifications, and price.
‘‘(4) In any case in which a contracting officer is able
to determine under paragraph (1) or (2) that a price is
reasonable, the procurement shall be exempt from section
2306a of this title.
‘‘(5) In any case in which a contracting officer is un-
able to determine under paragraph (1) or (2) that a price
is reasonable, the contracting officer may require cost or
pricing data under section 2306a of this title.
‘‘(b) GOVERNMENT’S RIGHT TO AUDIT.—(1) The
United States shall have the right to audit all documenta-
tion provided by an offeror under subsection (a)(3) and all
books and records of the offeror directly relating to such doc-
umentation, except that, if the offeror has made no represen-
tation as to the completeness of the documentation supplied,
the United States shall have no right to audit for complete-
ness. When contract price is established under this section,
the United States shall have no audit rights other than those
set out in this subsection.
‘‘(2) The right under this subsection shall expire—
304
‘‘(A) one year after the date of commencement of
performance of the contract, or one year after the date
of commencement of performance of the modification
of the contract, with respect to which the information
was provided; or
‘‘(B) on such other date agreed upon by the par-
ties at the time of contract award or contract
definitization.’’.
(b) CROSS REFERENCE.—Section 2306a of title 10,
United States Code, is amended by adding at the end the
following new subsection:
‘‘(h) ADDITIONAL EXCEPTIONS REGARDING COMMER-
CIAL ITEMS.—For provisions relating to additional excep-
tions for procurements of commercial items, see section 2283
of this title.’’.
SEC. 7005. REGULATIONS ON ACQUISITION OF COMMER-
CIAL ITEMS.
(a) IN GENERAL.—Chapter 136 of title 10, United
States Code, as amended by section 7004, is further amend-
ed by adding after section 2283 the following new section:
‘‘§ 2284. Regulations; required terms and conditions
‘‘(a) IN GENERAL.—The head of each agency shall pre-
scribe regulations to implement this chapter in that agency.
Such regulations shall be developed in consultation with the
Administrator for Federal Procurement Policy. The regula-
305
tions shall include provisions implementing the preference
for commercial items set out in section 2282 of this title.
‘‘(b) TERMS AND CONDITIONS.—The regulations pre-
scribed under subsection (a) shall contain a set or sets of
terms and conditions to be included in contracts for the ac-
quisition of commercial items. Such terms and conditions
shall, to the maximum extent practicable, include only those
contract clauses that are determined by the head of the
agency to be—
‘‘(1) required to implement provisions of law ap-
plicable to commercial item acquisitions; or
‘‘(2) consistent with standard commercial prac-
tice.
‘‘(c) TERMS AND CONDITIONS FOR COMPONENTS.—
Such regulations shall provide that a prime contractor fur-
nishing commercial items or items other than commercial
items as items or components shall not be required to apply
to any of its divisions, subsidiaries, or affiliates or any of
its subcontractors or suppliers that are furnishing commer-
cial items as components any clause, term, or condition ex-
cept those determined by the head of the agency to be—
‘‘(1) required to implement provisions of law ap-
plicable to subcontractors furnishing commercial
items; or
306
‘‘(2) determined to be consistent with standard
commercial practice.
‘‘(d) MARKET ACCEPTANCE.—The regulations pre-
scribed under subsection (a) shall provide that, under ap-
propriate conditions, the head of the agency may require
an offeror to demonstrate, as a condition for being consid-
ered responsive, that the items offered meet, among other
criteria, market acceptance criteria, unless such item has
been satisfactorily supplied to an executive agency under
current or recent contracts for the same or similar require-
ments.
‘‘(e) USE OF FIXED PRICE CONTRACTS.—The regula-
tions prescribed under subsection (a) shall include a re-
quirement that firm, fixed price contracts, or fixed price
contracts with economic price adjustment provisions, be
used for the acquisition of commercial items and compo-
nents.
‘‘(f) TERM
OF CONTRACTS.—The regulations pre-
scribed under subsection (a) shall provide that, to the extent
practicable, contracts for acquisition of commercial items
shall not require contract performance for a term longer
than customary industry practice for the item being ac-
quired. A contracting officer may include in a contract pro-
visions for economic price adjustment if an extended period
of performance under the contract cannot be avoided.
307
‘‘(g) CONTRACT QUALITY REQUIREMENTS.—The regu-
lations prescribed under subsection (a) shall include provi-
sions that—
‘‘(1) permit, to the maximum extent practicable,
a contractor under a commercial items acquisition to
use the existing quality assurance system of the con-
tractor as a substitute for compliance with an other-
wise applicable requirement for the Government to in-
spect or test the commercial items before the contrac-
tor’s tender of those items for acceptance by the Gov-
ernment;
‘‘(2) require that, to the maximum extent prac-
ticable, the head of the agency take advantage of war-
ranties (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.’’.
(b) DEFENSE CONTRACT CLAUSES.—
(1) REPEAL
OF
DOD
AUTHORITY.—Section
824(b) of the National Defense Authorization Act for
Fiscal Years 1990 and 1991 (Public Law 101–189; 10
U.S.C. 2325 note) is repealed.
308
(2) SAVINGS PROVISION.—Notwithstanding sub-
sections (b) and (c) of section 2284 of title 10, U.S.C.,
as added by subsection (a), a contract of the Depart-
ment of Defense entered into before October 1, 1994,
and a subcontract entered into before such date under
such a contract, may include clauses developed pursu-
ant 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; 10 U.S.C. 2325
note).
SEC. 7006. PRINCIPLE OF CONSTRUCTION WITH FUTURE
LAWS.
Chapter 136 of title 10, United States Code, as amend-
ed by section 7005, is further amended by adding after sec-
tion 2284 the following new section:
‘‘§ 2285. Principle of construction with future laws
‘‘A provision of law enacted after the date of the enact-
ment of the Federal Acquisition Improvement Act of 1994
may not be construed as modifying or superseding any pro-
vision of this chapter unless that provision of law specifi-
cally refers to this section and specifically states that such
provision of law modifies or supersedes such provision of
this chapter.’’.
309
SEC. 7007. INAPPLICABILITY OF CERTAIN PROVISIONS OF
LAW.
(a) INAPPLICABLE PROVISIONS.—Chapter 136 of title
10, United States Code, as amended by section 7006, is fur-
ther amended by adding after section 2285 the following
new section:
‘‘§ 2286. Inapplicability of certain provisions of law
‘‘(a) PROVISIONS INAPPLICABLE TO PRIME CONTRAC-
TORS.—The following provisions of law (and regulations
prescribed under such provisions) shall not apply to any
contract entered into by an agency for the procurement of
a commercial item:
‘‘(1) Section 2306(b) of this title (relating to pro-
hibition on contingent fees).
‘‘(2) Section 2320 of this title (relating to rights
in technical data).
‘‘(3) Section 2321 of this title (relating to vali-
dation of proprietary data restrictions).
‘‘(4) Section 2324 of this title (relating to allow-
able costs).
‘‘(5) Section 2384(b) of this title (relating to re-
quirement to identify suppliers and sources of sup-
plies).
‘‘(6) Section 2393(d) of this title (relating to
prohibition against doing business with certain
offerors or contractors).
311
‘‘(A) Each provision of law listed under
subsection (a).
‘‘(B) Sections 2533 and 2534 of this title
(relating to goods which are other than American
goods).
‘‘(C) The Act of March 3, 1933, commonly
referred to as the ‘Buy American Act’ (41 U.S.C.
10a–10c).
‘‘(2) COVERED
ENTITIES.—Paragraph (1) ap-
plies to each of the following:
‘‘(A) Any division, subsidiary, or affiliate
of a prime contractor (other than the division,
subsidiary, or affiliate that is contracting with
the Government under the prime contract) or of
a subcontractor of a prime contractor, if such di-
vision, subsidiary, or affiliate is furnishing a
commercial item to the prime contractor or sub-
contractor for purposes of carrying out the prime
contract or subcontract.
‘‘(B) Any subcontractor or supplier of a
prime contractor, if the subcontractor or supplier
is furnishing a commercial item to the prime
contractor for purposes of carrying out the prime
contract.
312
‘‘(c) DEFINITION.—In this section, the term ‘prime
contractor’ means a person under contract directly with the
Department of Defense.’’.
SEC. 7008. CONFORMING AMENDMENTS RELATING TO INAP-
PLICABILITY OF CERTAIN PROVISIONS OF
LAW.
(a) INAPPLICABILITY
OF REQUIREMENT
FOR CON-
TRACT CLAUSE REGARDING CONTINGENT FEES.—Section
2306(b) of title 10, United States Code, as amended by sec-
tion 4032(a), is further amended by inserting before the pe-
riod at the end of the sentence added by section 4032(a)
the following: ‘‘or to a contract for the acquisition of com-
mercial items’’.
(b) INAPPLICABILITY OF REGULATIONS ON RIGHTS IN
TECHNICAL DATA.—Section 2320 of title 10, United States
Code, is amended by adding at the end the following new
subsection:
‘‘(e) The regulations prescribed under subsection (a)
shall not apply to contracts for the purchase of commercial
items (as defined in section 2281 of this title).’’.
(c) INAPPLICABILITY OF REQUIREMENT FOR VALIDA-
TION
OF PROPRIETARY DATA RESTRICTIONS.—Section
2321(a) of title 10, United States Code, is amended by in-
serting before the period at the end the following: ‘‘, other
313
than a contract for supplies or services that are commercial
items (as defined in section 2281 of this title)’’.
(d) INAPPLICABILITY OF REQUIREMENT TO IDENTIFY
SUPPLIERS AND SOURCES OF SUPPLIES.—Paragraph (2)
of section 2384(b) of title 10, United States Code, is amend-
ed to read as follows:
‘‘(2) The regulations prescribed pursuant to paragraph
(1) do not apply to a contract that requires the delivery
of supplies that are commercial items, as defined in section
2281 of this title.’’.
(e) INAPPLICABILITY OF PROHIBITION AGAINST DOING
BUSINESS WITH CERTAIN OFFERORS OR CONTRACTORS.—
Section 2393(d) of title 10, United States Code, as amended
by section 4032(d), is further amended by adding at the
end the following: ‘‘The requirement shall not apply in the
case of a subcontract for the acquisition of commercial items
(as defined in section 2281 of this title).’’.
(f) INAPPLICABILITY OF PROHIBITION ON LIMITATION
OF SUBCONTRACTOR DIRECT SALES.—Section 2402 of title
10, United States Code, as amended by section 4032(e), is
further amended by adding at the end the following new
subsection:
‘‘(d)(1) An agreement between the contractor in a con-
tract for the acquisition of commercial items and a sub-
contractor under such contract that restricts sales by such
314
subcontractor directly to persons other than the contractor
may not be considered to unreasonably restrict sales by that
subcontractor to the United States in violation of the provi-
sion included in such contract pursuant to subsection (a)
if the agreement does not result in the United States being
treated differently with regard to the restriction than any
other prospective purchaser of such commercial items from
that subcontractor.
‘‘(2) In paragraph (1), the term ‘commercial item’ has
the meaning given such term in section 2281 of this title.’’.
(g) INAPPLICABILITY OF PROHIBITION ON PERSONS
CONVICTED
OF DEFENSE-RELATED FELONIES.—Section
2408(a) of title 10, United States Code, is amended by add-
ing at the end of paragraph (4), as added by section
4032(f), the following: ‘‘The term does not include a con-
tract for the purchase of commercial items (as defined in
section 2281 of this title).’’.
(h) INAPPLICABILITY OF CONTRACTOR INVENTORY AC-
COUNTING SYSTEM STANDARDS.—Section 2410b of title 10,
United States Code, is amended by adding after subsection
(b), as added by section 4032(g), the following:
‘‘(c) The regulations prescribed pursuant to subsection
(a) shall not apply to a contract for the purchase of com-
mercial items (as defined in section 2281 of this title).’’.
315
Subtitle B—Civilian Agency
Acquisitions
SEC. 7011. DEFINITIONS.
Title III of the Federal Property and Administrative
Services Act of 1949 (41 U.S.C. 251 et seq.), as amended
by section 1554, is further amended by adding after section
314 the following new section:
‘‘SEC. 315. DEFINITIONS RELATING TO PROCUREMENT OF
COMMERCIAL ITEMS.
‘‘As used in this title:
‘‘(1) The term ‘commercial item’ means any of
the following:
‘‘(A) Any item of a type customarily used
in the course of normal business operations for
other than Federal Government purposes, that—
‘‘(i) has been sold, leased, or licensed to
the general public or to domestic State or
local government entities; or
‘‘(ii) has been offered for sale, lease, or
license to the general public or to domestic
State or local government entities.
‘‘(B) An item intended to be used in the
course of normal business operations for other
than Federal Government purposes that is not
yet available in the commercial marketplace, but
316
will be available in the commercial marketplace
in time to satisfy the delivery requirements
under a Federal Government solicitation.
‘‘(C) Any item that, but for—
‘‘(i) modifications of a type customar-
ily available in the commercial market-
place, or
‘‘(ii) minor modifications made to
meet Federal Government requirements,
would satisfy the criteria in subparagraph (A)
or (B).
‘‘(D) Any combination of items meeting the
requirements of subparagraph (A), (B), or (C)
that are of a type customarily combined and sold
in combination to the general public.
‘‘(E) Services offered and sold competitively,
in significant quantities, in the commercial mar-
ketplace at established catalog prices or standard
rates and under standard commercial terms and
conditions.
‘‘(F) Any item, combination of items, or
service referred to in subparagraphs (A) through
(E), notwithstanding the fact that the item, com-
bination of items, or service is transferred be-
317
tween or among separate divisions, subsidiaries,
or affiliates of a contractor.
‘‘(2) The term ‘nondevelopmental item’ means
any of the following:
‘‘(A) Any previously developed item of sup-
ply that is in use by a department or agency of
the United States, a State or local government,
or a foreign government with which the United
States has a mutual defense cooperation agree-
ment.
‘‘(B) Any item of supply described in sub-
paragraph (A) that requires only minor modi-
fication or modification of the type customarily
available in the commercial marketplace in order
to meet the requirements of the procuring depart-
ment or agency.
‘‘(C) Any item of supply currently being
produced that does not meet the requirements of
subparagraph (A) or (B) solely because the
item—
‘‘(i) is not yet in use; or
‘‘(ii) is not yet available in the com-
mercial marketplace.
318
‘‘(3) The term ‘component’ means any item sup-
plied to the Federal Government as part of an end
item or of another component.
‘‘(4) The term ‘commercial component’ means
any component that is a commercial item.’’.
SEC. 7012. PREFERENCE FOR ACQUISITION OF COMMER-
CIAL ITEMS.
Title III of the Federal Property and Administrative
Services Act of 1949 (41 U.S.C. 251 et seq.), as amended
by section 7011, is further amended by adding after section
315 the following new section:
‘‘SEC. 315A. PREFERENCE FOR ACQUISITION OF COMMER-
CIAL ITEMS.
‘‘(a) PREFERENCE.—(1) The head of each executive
agency shall ensure that, to the maximum extent prac-
ticable—
‘‘(A) requirements of the executive agency with
respect to a procurement of supplies are stated in
terms of—
‘‘(i) functions to be performed,
‘‘(ii) performance required, or
‘‘(iii) essential physical characteristics;
‘‘(B) such requirements are defined so that com-
mercial items may be procured to fulfill such require-
ments; and
319
‘‘(C) such requirements are fulfilled through the
procurement of commercial items.
‘‘(2) The head of an agency shall ensure that, to the
maximum extent practicable, requirements of the agency
with respect to a procurement of supplies are defined so
that nondevelopmental items may be procured to fulfill such
requirements in any case in which commercial items that
fulfill the requirements of the agency are not available.
‘‘(b) IMPLEMENTATION.—The head of each executive
agency shall ensure that procurement officials in that execu-
tive agency, to the maximum extent practicable—
‘‘(1) acquire commercial items to meet the needs
of the executive agency;
‘‘(2) require prime contractors and subcontrac-
tors at all levels under the executive agency contracts
to incorporate 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 commer-
cial items;
‘‘(4) state specifications in terms that enable and
encourage bidders and offerors to supply commercial
items in response to the solicitations of the executive
agency;
320
‘‘(5) revise the procurement policies, practices,
and procedures of the executive agency that are 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) 
EXISTING
OR
PRIOR
SOURCES
OF
NONDEVELOPMENTAL ITEMS.—(1) Notwithstanding sub-
section (a), the head of an executive agency may, until five
years after the date of the enactment of the Federal Acquisi-
tion Improvement Act of 1994, determine that it is in the
Government’s interests to permit existing or prior sources
of nondevelopmental items to participate in a competition
for 
a 
commercial 
item 
in 
a 
case 
in 
which 
a
nondevelopmental item will compete with a commercial
item under the same terms, conditions, and evaluation and
award criteria.
‘‘(2) Nondevelopmental items furnished by an existing
or prior source that must be modified to meet the require-
ments of a solicitation for commercial items may be offered
under such a solicitation, but only in a case in which the
modifications—
‘‘(A) are necessary to comply with the Govern-
ment’s solicitation requirements; and
321
‘‘(B) do not significantly alter the function or es-
sential physical characteristics of the items to be sup-
plied.
‘‘(3) The policies, procedures, solicitation provisions,
and contract clauses applicable to commercial items under
this chapter also shall apply to nondevelopmental items fur-
nished by an existing or prior source that is permitted to
participate in a competition conducted under this title.
‘‘(d) PRELIMINARY MARKET RESEARCH.—(1) 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 con-
tract in excess of the simplified acquisition threshold.
‘‘(2) The head of an executive agency shall use the re-
sults of market research to determine whether there are com-
mercial items available that—
‘‘(A) meet the requirements of the executive agen-
cy;
‘‘(B) could be modified to meet such require-
ments; or
‘‘(C) could meet such requirements if those re-
quirements were modified to a reasonable extent.’’.
322
SEC. 7013. PRICING DOCUMENTATION FOR COMMERCIAL
ITEMS.
(a) IN GENERAL.—Title III of the Federal Property
and Administrative Services Act of 1949 (41 U.S.C. 251
et seq.), as amended by section 7012, is further amended
by adding after section 315A the following new section:
‘‘SEC. 315B. PRICING DOCUMENTATION FOR COMMERCIAL
ITEMS.
‘‘(a) REQUIREMENT FOR DETERMINATION OF PRICE
REASONABLENESS.—(1) When the price of a commercial
item is based on adequate price competition or on estab-
lished catalog or market prices of items sold in sufficient
quantities to the general public, the contracting officer shall
presume that the price contained in the most advantageous
evaluated offer (price and all other factors considered) re-
ceived in response to a solicitation, or a price based on es-
tablished catalog or market prices, is fair and reasonable
unless the contracting officer has information that the price
is not fair and reasonable. Before the award of a contract
for which price is based on catalog or market prices, the
contracting officer shall make reasonable efforts to establish
the currency and accuracy of such prices.
‘‘(2) When the price of a commercial item is not pre-
sumed fair and reasonable under paragraph (1), the con-
tracting officer shall use price analysis to determine wheth-
er the price is fair and reasonable.
323
‘‘(3) When required by the contracting officer before
award of a contract or contract definitization, the offeror
shall promptly furnish documentation, in the form regu-
larly maintained in commercial operations, adequate to
demonstrate the market price of the item or items or other-
wise needed to establish a fair and reasonable price. All doc-
umentation received from an offeror, if not otherwise in the
public domain and if requested by the offeror and marked
as proprietary, shall be treated by the Government as con-
fidential and exempt from disclosure to the extent permitted
by section 552 of title 5. In this paragraph, the term ‘con-
tract definitization’ means agreement to contractual terms,
specifications, and price.
‘‘(4) In any case in which a contracting officer is able
to determine under paragraph (1) or (2) that a price is
reasonable, the procurement shall be exempt from section
304B of this title.
‘‘(5) In any case in which a contracting officer is un-
able to determine under paragraph (1) or (2) that a price
is reasonable, the contracting officer may require cost or
pricing data under section 304B.
‘‘(b) GOVERNMENT’S RIGHT TO AUDIT.—(1) The
United States shall have the right to audit all documenta-
tion provided by an offeror under subsection (a)(3) and all
books and records of the offeror directly relating to such doc-
324
umentation, except that, if the offeror has made no represen-
tation as to the completeness of the documentation supplied,
the United States shall have no right to audit for complete-
ness. When contract price is established under this section,
the United States shall have no audit rights other than those
set out in this subsection.
‘‘(2) The right under this subsection shall expire—
‘‘(A) one year after the date of commencement of
performance of the contract, or one year after the date
of commencement of performance of the modification
of the contract, with respect to which the information
was provided; or
‘‘(B) on such other date agreed upon by the par-
ties at the time of contract award or contract
definitization.’’.
(b) CROSS REFERENCE.—Section 304B of the Federal
Property and Administrative Services Act of 1949, as added
by section 1251, is amended by adding at the end the follow-
ing new subsection:
‘‘(h) ADDITIONAL EXCEPTIONS REGARDING COMMER-
CIAL ITEMS.—For provisions relating to additional excep-
tions for procurements of commercial items, see section
315B of this title.’’.
325
SEC. 7014. REGULATIONS ON ACQUISITION OF COMMER-
CIAL ITEMS.
Title III of the Federal Property and Administrative
Services Act of 1949 (41 U.S.C. 251 et seq.), as amended
by section 7013, is further amended by adding after section
315B the following new section:
‘‘SEC. 315C. REGULATIONS ON ACQUISITION OF COMMER-
CIAL ITEMS.
‘‘(a) IN GENERAL.—The Administrator for Federal
Procurement Policy shall prescribe regulations to imple-
ment sections 315 through 315E. The regulations shall in-
clude provisions implementing the preference for commer-
cial items set out in section 315A.
‘‘(b) TERMS AND CONDITIONS.—The regulations pre-
scribed under subsection (a) shall contain a set or sets of
terms and conditions to be included in contracts for the ac-
quisition of commercial end items. Such terms and condi-
tions shall, to the maximum extent practicable, include only
those contract clauses that are determined by the agency
head to be—
‘‘(1) required to implement provisions of law ap-
plicable to commercial item acquisitions; or
‘‘(2) consistent with standard commercial prac-
tice.
‘‘(c) TERMS AND CONDITIONS FOR COMPONENTS.—
Such regulations shall provide that a prime contractor fur-
326
nishing commercial items or items other than commercial
items as items or components shall not be required to apply
to any of its divisions, subsidiaries, or affiliates or any of
its subcontractors or suppliers that are furnishing commer-
cial items as components any clause, term, or condition ex-
cept those determined by the head of the agency to be—
‘‘(1) required to implement provisions of law ap-
plicable to subcontractors furnishing commercial
items; or
‘‘(2) determined to be consistent with standard
commercial practice.
‘‘(d) MARKET ACCEPTANCE.—The regulations pre-
scribed under subsection (a) shall provide that, under ap-
propriate conditions, the agency head may require an
offeror to demonstrate, as a condition for being considered
responsive, that the items offered meet, among other criteria,
market acceptance criteria, unless such item has been satis-
factorily supplied to an executive agency under current or
recent contracts for the same or similar requirements.
‘‘(e) USE OF FIXED PRICE CONTRACTS.—The regula-
tions prescribed under subsection (a) shall include a re-
quirement that firm, fixed price contracts, or fixed price
contracts with economic price adjustment provisions, be
used for the acquisition of commercial items and compo-
nents.
327
‘‘(f) TERM
OF CONTRACTS.—The regulations pre-
scribed under subsection (a) shall provide that, to the extent
practicable, contracts for acquisition of commercial items
shall not require contract performance for a term longer
than customary industry practice for the item being ac-
quired. A contracting officer may include in a contract pro-
visions for economic price adjustment if an extended period
of performance under the contract cannot be avoided.
‘‘(g) CONTRACT QUALITY REQUIREMENTS.—The regu-
lations prescribed under subsection (a) shall include provi-
sions that—
‘‘(1) permit, to the maximum extent practicable,
a contractor under a commercial items acquisition to
use the existing quality assurance system of the con-
tractor as a substitute for compliance with an other-
wise applicable requirement for the Government to in-
spect or test the commercial items before the contrac-
tor’s tender of those items for acceptance by the Gov-
ernment;
‘‘(2) require that, to the maximum extent prac-
ticable, the executive agency take advantage of war-
ranties (including extended warranties) offered by
offerors of commercial items and use such warranties
for the repair and replacement of commercial items;
and
328
‘‘(3) set forth guidance regarding the use of past
performance of commercial items and sources as a
factor in contract award decisions.’’.
SEC. 7015. PRINCIPLE OF CONSTRUCTION WITH FUTURE
LAWS.
Title III of the Federal Property and Administrative
Services Act of 1949 (41 U.S.C. 251 et seq.), as amended
by section 7014, is further amended by adding after section
315C the following new section:
‘‘SEC. 315D. PRINCIPLE OF CONSTRUCTION WITH FUTURE
LAWS.
‘‘A provision of law enacted after the date of the enact-
ment of the Federal Acquisition Improvement Act of 1994
may not be construed as modifying or superseding any pro-
vision of sections 315 through 315E unless that provision
of law specifically refers to this section and specifically
states that such provision of law modifies or supersedes such
provision of those sections.’’.
SEC. 7016. INAPPLICABILITY OF CERTAIN PROVISIONS OF
LAW.
Title III of the Federal Property and Administrative
Services Act of 1949 (41 U.S.C. 251 et seq.), as amended
by section 7015, is further amended by adding after section
315D the following new section:
329
‘‘SEC. 315E. INAPPLICABILITY OF CERTAIN PROVISIONS OF
LAW.
‘‘(a) PROVISIONS INAPPLICABLE TO PRIME CONTRAC-
TORS.—Procurements of commercial items shall not be sub-
ject to the following provisions of law (or regulations pre-
scribed under such provisions):
‘‘(1) Section 303G of this Act (relating to prohi-
bition on limitation of subcontractor direct sales).
‘‘(2) Section 304(a) of this Act (relating to pro-
hibition on contingent fees).
‘‘(3) Section 26 of the Office of Federal Procure-
ment Policy Act (41 U.S.C. 422) (relating to cost ac-
counting standards board).
‘‘(4) Section 27(e) of the Office of Federal Pro-
curement Policy Act (41 U.S.C. 423(e)) (relating to
procurement integrity).
‘‘(5) The Drug-Free Workplace Act of 1988 (sub-
title D of title V of Public Law 100–690; 41 U.S.C.
701 et seq.).
‘‘(b) PROVISIONS INAPPLICABLE TO SUBCONTRACTORS
AND OTHER ENTITIES.—
‘‘(1) LAWS INAPPLICABLE.—The following provi-
sions of law (and regulations prescribed under such
provisions) shall not apply to any entity described in
paragraph (2):
330
‘‘(A) Each provision of law listed under
subsection (a).
‘‘(B) The Act of March 3, 1933, commonly
referred to as the ‘Buy American Act’ (41 U.S.C.
10a–10c).
‘‘(2) COVERED
ENTITIES.—Paragraph (1) ap-
plies to each of the following:
‘‘(A) Any division, subsidiary, or affiliate
of a prime contractor (other than the division,
subsidiary, or affiliate that is contracting with
the Government under the prime contract) or of
a subcontractor of a prime contractor, if such di-
vision, subsidiary, or affiliate is furnishing a
commercial item to the prime contractor or sub-
contractor for purposes of carrying out the prime
contract or subcontract.
‘‘(B) Any subcontractor or supplier of a
prime contractor, if the subcontractor or supplier
is furnishing a commercial item to the prime
contractor for purposes of carrying out the prime
contract.
‘‘(c) DEFINITION.—In this section, the term ‘prime
contractor’ means a person under contract directly with the
Federal Government, other than the Department of De-
fense.’’.
331
SEC. 7017. CONFORMING AMENDMENTS RELATING TO INAP-
PLICABILITY OF CERTAIN PROVISIONS OF
LAW.
(a) INAPPLICABILITY OF PROHIBITION ON LIMITING
SUBCONTRACTOR
DIRECT
SALES
TO
THE
UNITED
STATES.—Section 303G of the Federal Property and Ad-
ministrative Services Act of 1949 (41 U.S.C. 253g), as
amended by section 4042(a), is further amended by adding
at the end the following new subsection:
‘‘(d) An agreement between the contractor in a con-
tract for the acquisition of commercial items and a sub-
contractor under such contract that restricts sales by such
subcontractor directly to persons other than the contractor
may not be considered to unreasonably restrict sales by that
subcontractor to the United States in violation of the provi-
sion included in such contract pursuant to subsection (a)
if the agreement does not result in the Federal Government
being treated differently with regard to the restriction than
any other prospective purchaser of such commercial items
from that subcontractor.’’.
(b) INAPPLICABILITY
OF REQUIREMENT
FOR CON-
TRACT CLAUSE REGARDING CONTINGENT FEES.—Section
304(a) of the Federal Property and Administrative Services
Act of 1949 (41 U.S.C. 254(a)), as amended by section
4042(b), is further amended by inserting before the period
at the end of the sentence added by section 4042(b) the fol-
332
lowing: ‘‘or to a contract for the acquisition of commercial
items’’.
Subtitle C—Acquisitions Generally
SEC. 7021. CONFORMING AMENDMENT RELATING TO INAP-
PLICABILITY OF CERTAIN PROVISIONS OF
LAW.
Section 5152 of the Drug-Free Workplace Act of 1988
(subtitle D of title V of Public Law 100–690; 41 U.S.C.
701 et seq.), as amended by section 4054, is further amend-
ed by inserting after the matter inserted by such section
4057 the following: ‘‘, other than a contract for the procure-
ment of commercial items (as defined, as applicable, in sec-
tion 315 of the Federal Property and Administrative Serv-
ices Act of 1949 or section 2281 of title 10, United States
Code),’’.
SEC. 7022. FLEXIBLE DEADLINES FOR SUBMISSION OF OF-
FERS OF COMMERCIAL ITEMS.
Section 18(a) of the Office of Federal Procurement Pol-
icy Act (41 U.S.C. 416(a)) is amended in paragraph (4)
(as added by section 4013(b))—
(1) by inserting ‘‘(A)’’ after ‘‘(4)’’; and
(2) by adding at the end the following new sub-
paragraph:
‘‘(B) The requirements of paragraph (3)(B) shall not
apply to bids or proposals for contracts for the purchase
333
of commercial items, as defined in section 4(12) of this Act.
The Administrator shall promulgate regulations establish-
ing appropriate time limits (but not less than 5 working
days) for the submission of such bids or proposals in re-
sponse to the notice required by paragraph (1)(A).’’.
SEC. 7023. ADDITIONAL RESPONSIBILITIES FOR ADVO-
CATES FOR COMPETITION.
Section 20(c) of the Office of Federal Procurement Pol-
icy Act (41 U.S.C. 418(c)) is amended to read as follows:
‘‘(c) The advocate for competition for each procuring
activity shall be responsible for promoting full and open
competition, promoting the acquisition of commercial items
and other nondevelopmental items, and challenging barriers
to such acquisition, including such barriers as unneces-
sarily restrictive statements of need, unnecessarily detailed
specifications, and unnecessarily burdensome contract
clauses.’’.
SEC. 7024. PROVISIONS NOT AFFECTED.
Nothing in this title shall be construed as modifying
or superseding, or intending to impair or restrict authori-
ties or responsibilities under, any of the following provi-
sions of law:
(1) Section 2323 of title 10, United States Code.
(2) Section 8(a) of the Small Business Act (15
U.S.C. 637(a)).
334
(3) Title IX of the Federal Property and Admin-
istrative Services Act of 1949 (40 U.S.C. 541 et seq.),
popularly referred to as the ‘‘Brooks Architect-Engi-
neers Act’’.
(4) Section 111 of the Federal Property and Ad-
ministrative Services Act of 1949 (40 U.S.C. 759),
popularly referred to as the ‘‘Brooks Automatic Data
Processing Act’’.
(5) The Act of June 25, 1938 (41 U.S.C. 46–
48c), that was revised and reenacted in the Act of
June 23, 1971 (85 Stat. 77), popularly referred to as
the ‘‘Javits-Wagner-O’Day Act’’.
SEC. 7025. COMPTROLLER GENERAL REVIEW OF FEDERAL
GOVERNMENT USE OF MARKET RESEARCH.
(a) REPORT REQUIRED.—Not later than two years
after the date of the enactment of this Act, the Comptroller
General of the United States shall submit to the Congress
a report on the use of market research by the Federal Gov-
ernment in support of the procurement of commercial items
and nondevelopmental items.
(b) CONTENT OF REPORT.—The report shall include
the following:
(1) A review of existing Federal Government
market research efforts to gather data concerning
commercial and other nondevelopmental items.