10 U.S.C. § 3453 (ARMED FORCES)
§ 3453. Preference for commercial products and commercial services
(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 services or commercial products or, to the extent that commercial products suitable to meet the agency’s needs are not available, nondevelopmental items other than commercial products, may be procured to fulfill such requirements; and
(3) offerors of commercial services, commercial products, and nondevelopmental items other than commercial products 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 services, commercial products, or nondevelopmental items other than commercial products to meet the needs of the agency;
(2) require prime contractors and subcontractors at all levels under the agency contracts to incorporate commercial services, commercial products, or nondevelopmental items other than commercial products as components of items supplied to the agency;
(3) modify requirements in appropriate cases to ensure that the requirements can be met by commercial services or commercial products or, to the extent that commercial products suitable to meet the agency’s needs are not available, nondevelopmental items other than commercial products;
(4) state specifications in terms that enable and encourage bidders and offerors to supply commercial services or commercial products or, to the extent that commercial products suitable to meet the agency’s needs are not available, nondevelopmental items other than commercial products 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 products and commercial services; and
(6) require training of appropriate personnel in the acquisition of commercial products and commercial services.
(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;
(B) before soliciting bids or proposals for a contract in excess of the simplified acquisition threshold; and
(C) before awarding a task order or delivery order 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 services or commercial products or, to the extent that commercial products suitable to meet the agency’s needs are not available, nondevelopmental items other than commercial products 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).
(4) The head of an agency shall document the results of market research in a manner appropriate to the size and complexity of the acquisition.
(5) The head of an agency shall take appropriate steps to ensure that any prime contractor of a contract (or task order or delivery order) in an amount in excess of $5,000,000 for the procurement of products other than commercial products or services other than commercial services engages in such market research as may be necessary to carry out the requirements of subsection (b)(2) before making purchases for or on behalf of the Department of Defense.
(d) Market Research for Price Analysis.—
The Secretary of Defense shall ensure that procurement officials in the Department of Defense conduct or obtain market research to support the determination of the reasonableness of price for commercial products or commercial services contained in any bid or offer submitted in response to an agency solicitation. To the extent necessary to support such market research, the procurement official for the solicitation—
(1) in the case of products or services acquired under section 3455 of this title, shall use information submitted under subsection (d) of that section; and
(2) in the case of other products or services, may require the offeror to submit relevant information.
(e) Market Research Training Required.—
The Secretary of Defense shall provide mandatory training for members of the armed forces and employees of the Department of Defense responsible for the conduct of market research required under subsections (c) and (d). Such mandatory training shall, at a minimum—
(1) provide comprehensive information on the subject of market research and the function of market research in the acquisition of commercial products and commercial services;
(2) teach best practices for conducting and documenting market research; and
(3) provide methodologies for establishing standard processes and reports for collecting and sharing market research across the Department.
(Added Pub. L. 103–355, title VIII, § 8104(a), Oct. 13, 1994, 108 Stat. 3390, § 2377; amended Pub. L. 110–181, div. A, title VIII, § 826(a), Jan. 28, 2008, 122 Stat. 227; Pub. L. 114–92, div. A, title VIII, § 844(a), Nov. 25, 2015, 129 Stat. 915; Pub. L. 114–328, div. A, title VIII, § 871, Dec. 23, 2016, 130 Stat. 2307; Pub. L. 115–232, div. A, title VIII, § 836(d)(3), (8)(C), Aug. 13, 2018, 132 Stat. 1866, 1868; Pub. L. 116–92, div. A, title VIII, § 818(a), Dec. 20, 2019, 133 Stat. 1488; renumbered § 3453 and amended Pub. L. 116–283, div. A, title XVIII, § 1821(a)(2), (b)(3), Jan. 1, 2021, 134 Stat. 4195.)
heading: Editorial Notes
heading: Amendments
text: 2021—Pub. L. 116–283, § 1821(a)(2), renumbered section 2377 of this title as this section.
Subsec. (d)(1). Pub. L. 116–283, § 1821(b)(3), substituted “section 3455” for “section 2379”.
2019—Subsec. (c)(4). Pub. L. 116–92, § 818(a)(1)(B), added par. (4). Former par. (4) redesignated (5).
Subsec. (c)(5). Pub. L. 116–92, § 818(a)(2), amended directory language of Pub. L. 115–232, § 836(d)(3)(C)(ii). See 2018 Amendment note below.
Pub. L. 116–92, § 818(a)(1), redesignated par. (4) as (5).
2018—Pub. L. 115–232, § 836(d)(8)(C), substituted “commercial products and commercial services” for “acquisition of commercial items” in section catchline.
Subsec. (a)(2). Pub. L. 115–232, § 836(d)(3)(A)(i), substituted “commercial services or commercial products or, to the extent that commercial products suitable to meet the agency’s needs are not available, nondevelopmental items other than commercial products” for “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”.
Subsec. (a)(3). Pub. L. 115–232, § 836(d)(3)(A)(ii), substituted “commercial services, commercial products, and nondevelopmental items other than commercial products” for “commercial items and nondevelopmental items other than commercial items”.
Subsec. (b)(1), (2). Pub. L. 115–232, § 836(d)(3)(B)(i), substituted “commercial services, commercial products, or nondevelopmental items other than commercial products” for “commercial items or nondevelopmental items other than commercial items”.
Subsec. (b)(3), (4). Pub. L. 115–232, § 836(d)(3)(B)(ii), substituted “commercial services or commercial products or, to the extent that commercial products suitable to meet the agency’s needs are not available, nondevelopmental items other than commercial products” for “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”.
Subsec. (b)(5), (6). Pub. L. 115–232, § 836(d)(3)(B)(iii), substituted “commercial products and commercial services” for “commercial items”.
Subsec. (c)(2). Pub. L. 115–232, § 836(d)(3)(C)(i), in introductory provisions, substituted “commercial services or commercial products or, to the extent that commercial products suitable to meet the agency’s needs are not available, nondevelopmental items other than commercial products” for “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”.
Subsec. (c)(5). Pub. L. 115–232, § 836(d)(3)(C)(ii), as amended by Pub. L. 116–92, § 818(a)(2), substituted “products other than commercial products or services other than commercial services” for “items other than commercial items”.
Subsec. (d). Pub. L. 115–232, § 836(d)(3)(D)(i), substituted “commercial products or commercial services” for “commercial items” in introductory provisions.
Subsec. (d)(1), (2). Pub. L. 115–232, § 836(d)(3)(D)(ii), (iii), substituted “products or services” for “items”.
Subsec. (e)(1). Pub. L. 115–232, § 836(d)(3)(E), substituted “commercial products and commercial services” for “commercial items”.
2016—Subsecs. (d), (e). Pub. L. 114–328 added subsec. (d), redesignated former subsec. (d) as (e), and in introductory provisions of subsec. (e), substituted “subsections (c) and (d)” for “subsection (c)”.
2015—Subsec. (d). Pub. L. 114–92 added subsec. (d).
2008—Subsec. (c)(1)(C). Pub. L. 110–181, § 826(a)(1), added subpar. (C).
Subsec. (c)(4). Pub. L. 110–181, § 826(a)(2), added par. (4).
heading: Statutory Notes and Related Subsidiaries
heading: Effective Date of 2021 Amendment
text: Amendment by Pub. L. 116–283 effective Jan. 1, 2022, with additional provisions for delayed implementation and applicability of existing law, see section 1801(d) of Pub. L. 116–283, set out as a note preceding section 3001 of this title.
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.