10 U.S.C. § 3455 (ARMED FORCES)
§ 3455. Procurement of a major weapon system as a commercial product: requirement for prior determination by Secretary of Defense and notification to Congress
(a) Requirement for Determination and Notification.—
A major weapon system of the Department of Defense may be treated as a commercial product, or purchased under procedures established for the procurement of commercial products, only if—
(1) the Secretary of Defense determines that—
(A) the major weapon system is a commercial product; 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 as Commercial Products.—
A subsystem of a major weapon system (other than a commercially available off-the-shelf item as defined in section 104 of title 41) shall be treated as a commercial product and purchased under procedures established for the procurement of commercial products if either—
(1) the subsystem is intended for a major weapon system that is being purchased, or has been purchased, under procedures established for the procurement of commercial products in accordance with the requirements of subsection (a); or
(2) the contracting officer determines in writing that the subsystem is a commercial product.
(c) Treatment of Components and Spare Parts as Commercial Products.—
(1) A component or spare part for a major weapon system (other than a commercially available off-the-shelf item as defined in section 104 of title 41) may be treated as a commercial product for the purposes of chapter 271 of this title if either—
(A) the component or spare part is intended for—
(i) a major weapon system that is being purchased, or has been purchased, under procedures established for the procurement of commercial products in accordance with the requirements of subsection (a); or
(ii) a subsystem of a major weapon system that is being purchased, or has been purchased, under procedures established for the procurement of commercial products in accordance with the requirements of subsection (b); or
(B) the contracting officer determines in writing that the component or spare part is a commercial product.
(2) This subsection shall apply only to components and spare parts that are acquired by the Department of Defense through a prime contract or a modification to a prime contract (or through a subcontract under a prime contract or modification to a prime contract on which the prime contractor adds no, or negligible, value).
(d) Information Submitted.—
(1) To the extent necessary to determine the reasonableness of the price for items acquired under this section, the contracting officer shall require the offeror to submit—
(A) prices paid for the same or similar commercial products under comparable terms and conditions by both Government and commercial customers;
(B) if the contracting officer determines that the offeror does not have access to and cannot provide sufficient information described in subparagraph (A) to determine the reasonableness of price, information on—
(i) prices for the same or similar items sold under different terms and conditions;
(ii) prices for similar levels of work or effort on related products or services;
(iii) prices for alternative solutions or approaches; and
(iv) other relevant information that can serve as the basis for a price assessment; and
(C) if the contracting officer determines that the information submitted pursuant to subparagraphs (A) and (B) is not sufficient to determine the reasonableness of price, other relevant information regarding the basis for price or cost, including information on labor costs, material costs, and overhead rates.
(2) An offeror may submit information or analysis relating to the value of a commercial product to aid in the determination of the reasonableness of the price of such item. A contracting officer may consider such information or analysis in addition to the information submitted pursuant to paragraphs (1)(A) and (1)(B).
(3) An offeror may not be required to submit information described in paragraph (1)(C) with regard to a commercially available off-the-shelf item and may be required to submit such information with regard to any other item that was developed exclusively at private expense only after the head of the contracting activity determines in writing that the information submitted pursuant to paragraphs (1)(A) and (1)(B) is not sufficient to determine the reasonableness of price.
(e) 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.
(f) 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 1 of this title).
(Added Pub. L. 109–163, div. A, title VIII, § 803(a)(1), Jan. 6, 2006, 119 Stat. 3370, § 2379; amended Pub. L. 110–181, div. A, title VIII, § 815(a)(1), Jan. 28, 2008, 122 Stat. 222; Pub. L. 113–291, div. A, title X, § 1071(a)(7), Dec. 19, 2014, 128 Stat. 3504; Pub. L. 114–92, div. A, title VIII, § 852(a)–(d), Nov. 25, 2015, 129 Stat. 917, 918; Pub. L. 114–328, div. A, title VIII, § 872, Dec. 23, 2016, 130 Stat. 2307; Pub. L. 115–232, div. A, title VIII, § 836(d)(4), (8)(D), Aug. 13, 2018, 132 Stat. 1868, 1869; renumbered § 3455 and amended Pub. L. 116–283, div. A, title XVIII, §§ 1821(a)(2), (b)(4), 1831(j)(4), 1883(b)(2), Jan. 1, 2021, 134 Stat. 4195, 4217, 4294; Pub. L. 117–81, div. A, title XVII, § 1701(b)(10)(i)(ii), Dec. 27, 2021, 135 Stat. 2134.)
heading: Editorial Notes
heading: References in Text
text: Section 2430 of this title, referred to in subsec. (f), was transferred to sections 4201, 4202, and 4204 of this title by Pub. L. 116–283, div. A, title XVIII, § 1846(c)(1), (d)(1), (f)(1), Jan. 1, 2021, 134 Stat. 4248–4250. Section 4201 of this title defines “major defense acquisition program”.
heading: Amendments
text: 2021—Pub. L. 116–283, § 1821(a)(2), renumbered section 2379 of this title as this section.
Subsec. (c)(1). Pub. L. 116–283, § 1831(j)(4), which directed amendment of this section by substituting “sections 3701–3708” for “section 2306a” and could not be executed, was repealed by Pub. L. 117–81, § 1701(b)(10)(I)(ii).
Pub. L. 116–283, § 1821(b)(4), substituted “chapter 271” for “section 2306a” in introductory provisions.
Subsec. (f). Pub. L. 116–283, § 1883(b)(2), which directed that each reference in the text of title 10 to a section that was redesignated by title XVIII of Pub. L. 116–283, as such section was in effect before the redesignation, be amended by striking such reference and inserting a reference to the appropriate redesignated section, was not executed with respect to “section 2430”, which was redesignated as multiple sections.
2018—Pub. L. 115–232, § 836(d)(8)(D), substituted “Procurement of a major weapon system as a commercial product: requirement for prior determination by Secretary of Defense and notification to Congress” for “Requirement for determination by Secretary of Defense and notification to Congress before procurement of major weapon systems as commercial items” in section catchline.
Pub. L. 115–232, § 836(d)(4)(C), substituted “commercial product” for “commercial item” and “commercial products” for “commercial items” wherever appearing.
Subsec. (a)(1)(A). Pub. L. 115–232, § 836(d)(4)(B), struck out “, as defined in section 103 of title 41” before “; and”.
Subsec. (b). Pub. L. 115–232, § 836(d)(4)(A), substituted “Commercial Products” for “Commercial Items” in heading.
Subsec. (b)(2). Pub. L. 115–232, § 836(d)(4)(B), struck out “, as defined in section 103 of title 41” before period.
Subsec. (c). Pub. L. 115–232, § 836(d)(4)(A), substituted “Commercial Products” for “Commercial Items” in heading.
Subsec. (c)(1)(B). Pub. L. 115–232, § 836(d)(4)(B), struck out “, as defined in section 103 of title 41” before period.
2016—Subsec. (d)(2), (3). Pub. L. 114–328 added par. (2) and redesignated former par. (2) as (3).
2015—Subsec. (a). Pub. L. 114–92, § 852(a), inserted “and” at end of par. (1)(B), redesignated par. (3) as (2), and struck out former par. (2) which read as follows: “the offeror has submitted sufficient information to evaluate, through price analysis, the reasonableness of the price for such system; and”.
Subsec. (b). Pub. L. 114–92, § 852(b)(1), substituted “if either” for “only if” in introductory provisions.
Subsec. (b)(2). Pub. L. 114–92, § 852(b)(2), substituted “writing that” for “writing that—”, struck out subpar. (A) designation before “the subsystem is a”, substituted “title 41.” for “title 41; and”, and struck out subpar. (B) which read as follows: “the offeror has submitted sufficient information to evaluate, through price analysis, the reasonableness of the price for such subsystem.”
Subsec. (c)(1). Pub. L. 114–92, § 852(c)(1), substituted “title if either” for “title only if” in introductory provisions.
Subsec. (c)(1)(B). Pub. L. 114–92, § 852(c)(2), substituted “writing that” for “writing that—”, struck out cl. (i) designation before “the component or”, substituted “title 41.” for “title 41; and”, and struck out cl. (ii) which read as follows: “the offeror has submitted sufficient information to evaluate, through price analysis, the reasonableness of the price for such component or spare part.”
Subsec. (d). Pub. L. 114–92, § 852(d), amended subsec. (d) generally. Prior to amendment, text read as follows: “To the extent necessary to make a determination under subsection (a)(2), (b)(2), or (c)(1)(B), the contracting officer may request the offeror to submit—
“(1) prices paid for the same or similar commercial items under comparable terms and conditions by both government and commercial customers; and
“(2) if the contracting officer determines that the information described in paragraph (1) is not sufficient to determine the reasonableness of price, other relevant information regarding the basis for price or cost, including information on labor costs, material costs, and overhead rates.”
2014—Subsec. (a)(1)(A). Pub. L. 113–291, § 1071(a)(7)(A), substituted “section 103 of title 41” for “section 4(12) of the Office of Federal Procurement Policy Act (41 U.S.C. 403(12))”.
Subsec. (b). Pub. L. 113–291, § 1071(a)(7)(B), substituted “section 104 of title 41” for “section 35(c) of the Office of Federal Procurement Policy Act (41 U.S.C. 431(c))” in introductory provisions.
Subsec. (b)(2)(A). Pub. L. 113–291, § 1071(a)(7)(A), substituted “section 103 of title 41” for “section 4(12) of the Office of Federal Procurement Policy Act (41 U.S.C. 403(12))”.
Subsec. (c)(1). Pub. L. 113–291, § 1071(a)(7)(B), substituted “section 104 of title 41” for “section 35(c) of the Office of Federal Procurement Policy Act (41 U.S.C. 431(c))” in introductory provisions.
Subsec. (c)(1)(B)(i). Pub. L. 113–291, § 1071(a)(7)(A), substituted “section 103 of title 41” for “section 4(12) of the Office of Federal Procurement Policy Act (41 U.S.C. 403(12))”.
2008—Subsec. (a)(2), (3). Pub. L. 110–181, § 815(a)(1)(A), added par. (2) and redesignated former par. (2) as (3).
Subsec. (b). Pub. L. 110–181, § 815(a)(1)(B), added subsec. (b) and struck out former subsec. (b). Former text read as follows: “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.”
Subsecs. (c) to (f). Pub. L. 110–181, § 815(a)(1)(C), (D), added subsecs. (c) and (d) and redesignated former subsecs. (c) and (d) as (e) and (f), respectively.
heading: Statutory Notes and Related Subsidiaries
heading: Effective Date of 2021 Amendment
text: Amendment by Pub. L. 117–81 applicable as if included in the enactment of title XVIII of Pub. L. 116–283 as enacted, see section 1701(a)(2) of Pub. L. 117–81, set out in a note preceding section 3001 of this title and note below.
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.
heading: Effective Date
text: Pub. L. 109–163, div. A, title VIII, § 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.”