Preference for commercial products and commercial services

10 U.S.C. § 3453
in effect
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(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 acquisition officials in such agency and prime contractors and subcontractors (at any tier) performing contracts with such agency (including those performing consulting, research, and advisory services to acquisition officials of such 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 such prime contractors and subcontractors 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; (6) require training of appropriate personnel in the acquisition of commercial products and commercial services; and (7) establish criteria in performance evaluations for appropriate personnel to reward risk-informed decisions that maximize the acquisition of commercial products, commercial services, or nondevelopmental items other than commercial products. (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) Non-commercial Determination Required.—(1) The head of an agency shall establish a process for determinations regarding the non-availability of commercial products or commercial services, including that—(A) a product or service that is not a commercial product or commercial service may not be procured until the head of the agency determines that the market research conducted in accordance with subsection (c)(2) resulted in a determination that no commercial product, commercial service, or nondevelopmental item exists that is suitable to meet the needs of the agency; and (B) prior to acquiring a product or service that is not a commercial product or commercial service, the relevant program manager shall submit a written memorandum confirming the results of the determination in subparagraph (A), which shall be signed by the portfolio acquisition executive; and (2) ensure the determination in paragraph (1)(A) does not inhibit the ability of a contracting officer to determine whether a product, component of a product, or service is a commercial product or commercial service (as applicable). (e) 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 may require the offeror to submit relevant information. (f) 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.

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