41 U.S.C. § 1906 (PUBLIC CONTRACTS)
§ 1906. List of laws inapplicable to procurements of commercial items
(a) Definition.—
In this section, the term “Council” has the meaning given that term in section 1301 of this title.
(b) Contracts.—
(1) Inclusion in federal acquisition regulation.—
The Federal Acquisition Regulation shall include a list of provisions of law that are inapplicable to contracts for the procurement of commercial items. A provision of law properly included on the list pursuant to paragraph (2) does not apply to purchases of commercial items by an executive agency. This section does not render a provision of law not included on the list inapplicable to contracts for the procurement of commercial items.
(2) Laws enacted after october 13, 1994.—
A provision of law described in subsection (d) that is enacted after October 13, 1994, shall be included on the list of inapplicable provisions of law required by paragraph (1) unless the Council makes a written determination that it would not be in the best interest of the Federal Government to exempt contracts for the procurement of commercial items from the applicability of the provision.
(c) Subcontracts.—
(1) Definition.—
In this subsection, the term “subcontract” includes a transfer of commercial items between divisions, subsidiaries, or affiliates of a contractor or subcontractor. The term does not include agreements entered into by a contractor for the supply of commodities that are intended for use in the performance of multiple contracts with the Federal Government and other parties and are not identifiable to any particular contract.
(2) Inclusion in federal acquisition regulation.—
The Federal Acquisition Regulation shall include a list of provisions of law that are inapplicable to subcontracts under a contract or subcontract for the procurement of commercial items. A provision of law properly included on the list pursuant to paragraph (3) does not apply to those subcontracts. This section does not render a provision of law not included on the list inapplicable to subcontracts under a contract for the procurement of commercial items.
(3) Provisions to be excluded from list.—
A provision of law described in subsection (d) shall be included on the list of inapplicable provisions of law required by paragraph (2) unless the Council makes a written determination that it would not be in the best interest of the Federal Government to exempt subcontracts under a contract for the procurement of commercial items from the applicability of the provision.
(4) Waiver not authorized.—
This subsection does not authorize the waiver of the applicability of any provision of law with respect to any subcontract under a contract with a prime contractor reselling or distributing commercial items of another contractor without adding value.
(d) Covered Law.—
A provision of law referred to in subsections (b)(2) and (c) is a provision of law that the Council determines sets forth policies, procedures, requirements, or restrictions for the procurement of property or services by the Federal Government, except for a provision of law that—
(1) provides for criminal or civil penalties; or
(2) specifically refers to this section and provides that, notwithstanding this section, it shall be applicable to contracts for the procurement of commercial items.
(e) Petition.—
A person may petition the Administrator to take appropriate action when a provision of law described in subsection (d) is not included on the list of inapplicable provisions of law as required by subsection (b) or (c) and the Council has not made a written determination pursuant to subsection (b)(2) or (c)(3). The Administrator shall revise the Federal Acquisition Regulation to include the provision on the list of inapplicable provisions of law unless the Council makes a determination pursuant to subsection (b)(2) or (c)(3) within 60 days after the petition is received.
(Pub. L. 111–350, § 3, Jan. 4, 2011, 124 Stat. 3723; Pub. L. 115–91, div. A, title VIII, § 820, Dec. 12, 2017, 131 Stat. 1464; Pub. L. 115–232, div. A, title VIII, § 836(b)(6)(A), (B)(i), Aug. 13, 2018, 132 Stat. 1861.)
heading: Amendment of Section
text: Pub. L. 115–232, div. A, title VIII, § 836(b)(6)(A), (B)(i), (h), Aug. 13, 2018, 132 Stat. 1861, 1874, provided that, effective Jan. 1, 2020, subject to a savings provision, this section is amended by amending the section catchline to read “List of laws inapplicable to procurements of commercial products and commercial services” and, in subsections (b) to (d), by striking “commercial items” each place it appears and inserting “commercial products or commercial services”. See 2018 Amendment notes below.
text: Historical and Revision Notes
Revised
Section
Source (U.S. Code)
Source (Statutes at Large)
1906(a)
no source.
1906(b)–(e)
41:430.
Pub. L. 93–400, § 34, as added Pub. L. 103–355, title VIII, § 8003(a), Oct. 13, 1994, 108 Stat. 3388.
heading: Amendments
text: 2018—Pub. L. 115–232, § 836(b)(6)(B)(i), substituted “List of laws inapplicable to procurements of commercial products and commercial services” for “List of laws inapplicable to procurements of commercial items” in section catchline.
Subsecs. (b) to (d). Pub. L. 115–232, § 836(b)(6)(A), substituted “commercial products or commercial services” for “commercial items” wherever appearing.
2017—Subsec. (c)(1). Pub. L. 115–91 inserted at end “The term does not include agreements entered into by a contractor for the supply of commodities that are intended for use in the performance of multiple contracts with the Federal Government and other parties and are not identifiable to any particular contract.”
heading: Effective Date of 2018 Amendment
text: Amendment by Pub. L. 115–232 effective Jan. 1, 2020, subject to a savings provision, see section 836(h) of Pub. L. 115–232, set out as an Effective Date of 2018 Amendment; Savings Provision note under section 453b of Title 6, Domestic Security.