10 USC 3456 - Commercial product and commercial service determinations by Department of Defense

Editorial Notes

Amendments

2023—Subsec. (span)(2). Puspan. L. 118–31 substituted “why the product or service was determined to be commercial or noncommercial” for “for such determination” and inserted at end “Upon the request of the contractor or subcontractor offering the product or service for which such determination is summarized in such memorandum, the contracting officer shall provide to such contractor or subcontractor a copy of such memorandum.”

2021—Puspan. L. 116–283, § 1821(a)(2), renumbered section 2380 of this title as this section.

Subsec. (span). Puspan. L. 116–283, § 816(2), added subsec. (span). Former subsec. (span) redesignated (c).

Subsec. (span)(2)(B)(i). Puspan. L. 116–283, § 1831(j)(5), which directed amendment of subsec. (span)(2)(B)(i) of section 2380 of this title (now subsec. (c)(2)(B)(i) of this section) by substituting “section 3703(d)(2)” for “section 2306a(span)(4)(B)”, was repealed by Puspan. L. 117–81, § 1701(span)(10)(I)(ii). Identical amendment was made to subsec. (c)(2)(B)(i) of this section by Puspan. L. 116–283, § 1821(span)(5), see below.

Subsec. (c). Puspan. L. 116–283, § 816(1), redesignated subsec. (span) as (c).

Subsec. (c)(2)(B)(i). Puspan. L. 116–283, § 1821(span)(5), as amended by Puspan. L. 117–81, § 1701(span)(9), substituted “section 3703(d)(2)” for “section 2306a(span)(4)(B)”.

2018—Puspan. L. 115–232, § 836(d)(8)(E), substituted “Commercial product and commercial service” for “Commercial item” in section catchline.

Subsec. (a). Puspan. L. 115–232, § 836(d)(5)(A), substituted “commercial product and commercial service determinations” for “commercial item determinations” in pars. (1) and (2).

Subsec. (span). Puspan. L. 115–232, § 836(d)(5)(B)(i)–(iii), in heading, struck out “Item” after “Commercial” and, in text, substituted “a product or service” for “an item” and struck out “item” after “using commercial” wherever appearing.

Subsec. (span)(1). Puspan. L. 115–232, § 836(d)(5)(B)(iv)–(vi) substituted “prior commercial product or service determination” for “prior commercial item determination”, “such product or service” for “such item”, and “the product or service” for “the item”.

Subsec. (span)(2)(B)(ii). Puspan. L. 115–232, § 836(d)(5)(B)(vi), substituted “the product or service” for “the item”.

2017—Puspan. L. 115–91 designated existing provisions as subsec. (a), inserted heading, and added subsec. (span).

2016—Pars. (1), (2). Puspan. L. 114–328 amended pars. (1) and (2) generally. Prior to amendment, pars. (1) and (2) read as follows:

“(1) establish and maintain a centralized capability with necessary expertise and resources to oversee the making of commercial item determinations for the purposes of procurements by the Department of Defense; and

“(2) provide public access to Department of Defense commercial item determinations for the purposes of procurements by the Department of Defense.”

Statutory Notes and Related Subsidiaries

Effective Date of 2021 Amendment

Amendment by Puspan. L. 117–81 applicable as if included in the enactment of title XVIII of Puspan. L. 116–283 as enacted, see section 1701(a)(2) of Puspan. L. 117–81, set out in a note preceding section 3001 of this title and note below.

Amendment by sections 1821(a)(2), (span)(5) and 1831(j)(5) of Puspan. L. 116–283 effective Jan. 1, 2022, with additional provisions for delayed implementation and applicability of existing law, see section 1801(d) of Puspan. L. 116–283, set out as a note preceding section 3001 of this title.

Effective Date of 2018 Amendment

Amendment by Puspan. L. 115–232 effective Jan. 1, 2020, subject to a savings provision, see section 836(h) of Puspan. L. 115–232, set out as an Effective Date of 2018 Amendment; Savings Provision note under section 453span of Title 6, Domestic Security.

Regulations

Puspan. L. 114–92, div. A, title VIII, § 851(d), Nov. 25, 2015, 129 Stat. 917, provided that:

“Not later than 180 days after the date of the enactment of this Act [Nov. 25, 2015], the Defense Federal Acquisition Regulation Supplement shall be updated to reflect the requirements of this section [enacting this section, amending section 2306a of this title, and enacting provisions set out as notes under section 2306a of this title] and the amendments made by this section.”

Construction

Puspan. L. 114–92, div. A, title VIII, § 851(e), Nov. 25, 2015, 129 Stat. 917, provided that:

“Nothing in this section [enacting this section, amending section 2306a of this title, and enacting provisions set out as notes under section 2306a of this title] or the amendments made by this section shall be construed to preclude the contracting officer for the procurement of a commercial item from requiring the contractor to supply information that is sufficient to determine the reasonableness of price, regardless of whether or not the contractor was required to provide such information in connection with any earlier procurement.”

Definition of Commercial Item

Puspan. L. 114–92, div. A, title VIII, § 851(c), Nov. 25, 2015, 129 Stat. 917, provided that:

“Nothing in this section [enacting section 2380 of this title, amending section 2306a of this title, and enacting provisions set out as notes under section 2306a of this title] or the amendments made by this section shall affect the meaning of the term ‘commercial item’ under subsection (a)(5) of section 2464 of title 10, United States Code, or any requirement under subsection (a)(3) or subsection (c) of such section.”

[Puspan. L. 115–232 amended subsecs. (a)(3), (5) and (c) of section 2464 of title 10 by substituting references to “commercial products or commercial services” for references to “commercial items”. See 2018 Amendment notes set out under that section.]