§ 264b. — Preference for acquisition of commercial items.
[Laws in effect as of January 24, 2002]
[Document not affected by Public Laws enacted between
January 24, 2002 and December 19, 2002]
[CITE: 41USC264b]
TITLE 41--PUBLIC CONTRACTS
CHAPTER 4--PROCUREMENT PROCEDURES
SUBCHAPTER IV--PROCUREMENT PROVISIONS
Sec. 264b. Preference for acquisition of commercial items
(a) Preference
The head of each executive agency shall ensure that, to the maximum
extent practicable--
(1) requirements of the executive 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 items or,
to the extent that commercial items suitable to meet the executive
agency's needs are not available, nondevelopmental items other than
commercial items, may be procured to fulfill such requirements; and
(3) offerors of commercial items and nondevelopmental items
other than commercial items are provided an opportunity to compete
in any procurement to fill such requirements.
(b) Implementation
The head of each executive agency shall ensure that procurement
officials in that executive agency, to the maximum extent practicable--
(1) acquire commercial items or nondevelopmental items other
than commercial items to meet the needs of the executive agency;
(2) require prime contractors and subcontractors at all levels
under the executive agency contracts to incorporate commercial items
or nondevelopmental items other than commercial items as components
of items supplied to the executive agency;
(3) modify requirements in appropriate cases to ensure that the
requirements can be met by commercial items or, to the extent that
commercial items suitable to meet the executive agency's needs are
not available, nondevelopmental items other than commercial items;
(4) state specifications in terms that enable and encourage
bidders and offerors to supply commercial items or, to the extent
that commercial items suitable to meet the executive agency's needs
are not available, nondevelopmental items other than commercial
items in response to the executive agency solicitations;
(5) revise the executive 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 items; and
(6) require training of appropriate personnel in the acquisition
of commercial items.
(c) Preliminary market research
(1) The head of an executive agency shall conduct market research
appropriate to the circumstances--
(A) before developing new specifications for a procurement by
that executive agency; and
(B) before soliciting bids or proposals for a contract in excess
of the simplified acquisition threshold.
(2) The head of an executive agency shall use the results of market
research to determine whether there are commercial items or, to the
extent that commercial items suitable to meet the executive agency's
needs are not available, nondevelopmental items other than commercial
items available that--
(A) meet the executive agency's requirements;
(B) could be modified to meet the executive agency's
requirements; or
(C) could meet the executive agency's requirements if those
requirements were modified to a reasonable extent.
(3) In conducting market research, the head of an executive agency
should not require potential sources to submit more than the minimum
information that is necessary to make the determinations required in
paragraph (2).
(June 30, 1949, ch. 288, title III, Sec. 314B, as added Pub. L. 103-355,
title VIII, Sec. 8203, Oct. 13, 1994, 108 Stat. 3394.)
Effective Date
For effective date and applicability of section, see section 10001
of Pub. L. 103-355, set out as an Effective Date of 1994 Amendment note
under section 251 of this title.
Comptroller General Review of Federal Government Use of Market Research
Section 8305 of Pub. L. 103-355 provided that:
``(a) Report Required.--Not later than 2 years after the date of the
enactment of this Act [Oct. 13, 1994], the Comptroller General of the
United States shall submit to the Congress a report on the use of market
research by the Federal Government in support of the procurement of
commercial items and nondevelopmental items.
``(b) Content of Report.--The report shall include the following:
``(1) A review of existing Federal Government market research
efforts to gather data concerning commercial and other
nondevelopmental items.
``(2) A review of the feasibility of creating a Government-wide
data base for storing, retrieving, and analyzing market data,
including use of existing Federal Government resources.
``(3) Any recommendations for changes in law or regulations that
the Comptroller General considers appropriate.''
Section Referred to in Other Sections
This section is referred to in section 264 of this title; title 15
section 205l.
