§ 403. — Definitions.
[Laws in effect as of January 24, 2002]
[Document not affected by Public Laws enacted between
January 24, 2002 and December 19, 2002]
[CITE: 41USC403]
TITLE 41--PUBLIC CONTRACTS
CHAPTER 7--OFFICE OF FEDERAL PROCUREMENT POLICY
Sec. 403. Definitions
As used in this chapter:
(1) The term ``executive agency'' means--
(A) an executive department specified in section 101 of
title 5;
(B) a military department specified in section 102 of such
title;
(C) an independent establishment as defined in section
104(1) of such title; and
(D) a wholly owned Government corporation fully subject to
the provisions of chapter 91 of title 31.
(2) The term ``procurement'' includes all stages of the process
of acquiring property or services, beginning with the process for
determining a need for property or services and ending with contract
completion and closeout.
(3) The term ``procurement system'' means the integration of the
procurement process, the professional development of procurement
personnel, and the management structure for carrying out the
procurement function.
(4) The term ``standards'' means the criteria for determining
the effectiveness of the procurement system by measuring the
performance of the various elements of such system.
(5) The term ``competitive procedures'' means procedures under
which an agency enters into a contract pursuant to full and open
competition.
(6) The term ``full and open competition'', when used with
respect to a procurement, means that all responsible sources are
permitted to submit sealed bids or competitive proposals on the
procurement.
(7) The term ``responsible source'' means a prospective
contractor who--
(A) has adequate financial resources to perform the contract
or the ability to obtain such resources;
(B) is able to comply with the required or proposed delivery
or performance schedule, taking into consideration all existing
commercial and Government business commitments;
(C) has a satisfactory performance record;
(D) has a satisfactory record of integrity and business
ethics;
(E) has the necessary organization, experience, accounting
and operational controls, and technical skills, or the ability
to obtain such organization, experience, controls, and skills;
(F) has the necessary production, construction, and
technical equipment and facilities, or the ability to obtain
such equipment and facilities; and
(G) is otherwise qualified and eligible to receive an award
under applicable laws and regulations.
(8) The term ``technical data'' means recorded information
(regardless of the form or method of the recording) of a scientific
or technical nature (including computer software documentation)
relating to supplies procured by an agency. Such term does not
include computer software or financial, administrative, cost or
pricing, or management data or other information incidental to
contract administration.
(9)(A) The term ``major system'' means a combination of elements
that will function together to produce the capabilities required to
fulfill a mission need, which elements may include hardware,
equipment, software or any combination thereof, but excludes
construction or other improvements to real property; and
(B) a system shall be considered a major system if (i) the
Department of Defense is responsible for the system and the total
expenditures for research, development, test and evaluation for the
system are estimated to be more than $75,000,000 (based on fiscal
year 1980 constant dollars) or the eventual total expenditure for
procurement of more than $300,000,000 (based on fiscal year 1980
constant dollars); (ii) a civilian agency is responsible for the
system and total expenditures for the system are estimated to exceed
$750,000 (based on fiscal year 1980 constant dollars) or the dollar
threshold for a ``major system'' established by the agency pursuant
to Office of Management and Budget (OMB) Circular A-109, entitled
``Major Systems Acquisitions'', whichever is greater; or (iii) the
system is designated a ``major system'' by the head of the agency
responsible for the system.
(10) The term ``item'', ``item of supply'', or ``supplies''
means any individual part, component, subassembly, assembly, or
subsystem integral to a major system, and other property which may
be replaced during the service life of the system, and includes
spare parts and replenishment spare parts, but does not include
packaging or labeling associated with shipment or identification of
an ``item''.
(11) The term ``simplified acquisition threshold'' means
$100,000.
(12) The term ``commercial item'' means any of the following:
(A) Any item, other than real property, that is of a type
customarily used by the general public or by nongovernmental
entities for purposes other than governmental purposes, and
that--
(i) has been sold, leased, or licensed to the general
public; or
(ii) has been offered for sale, lease, or license to the
general public.
(B) Any item that evolved from an item described in
subparagraph (A) through advances in technology or performance
and that is not yet available in the commercial marketplace, but
will be available in the commercial marketplace in time to
satisfy the delivery requirements under a Federal Government
solicitation.
(C) Any item that, but for--
(i) modifications of a type customarily available in the
commercial marketplace, or
(ii) minor modifications made to meet Federal Government
requirements,
would satisfy the criteria in subparagraph (A) or (B).
(D) Any combination of items meeting the requirements of
subparagraph (A), (B), (C), or (E) that are of a type
customarily combined and sold in combination to the general
public.
(E) Installation services, maintenance services, repair
services, training services, and other services if--
(i) the services are procured for support of an item
referred to in subparagraph (A), (B), (C), or (D),
regardless of whether such services are provided by the same
source or at the same time as the item; and
(ii) the source of the services provides similar
services contemporaneously to the general public under terms
and conditions similar to those offered to the Federal
Government.
(F) Services offered and sold competitively, in substantial
quantities, in the commercial marketplace based on established
catalog or market prices for specific tasks performed and under
standard commercial terms and conditions.
(G) Any item, combination of items, or service referred to
in subparagraphs (A) through (F) notwithstanding the fact that
the item, combination of items, or service is transferred
between or among separate divisions, subsidiaries, or affiliates
of a contractor.
(H) A nondevelopmental item, if the procuring agency
determines, in accordance with conditions set forth in the
Federal Acquisition Regulation, that the item was developed
exclusively at private expense and has been sold in substantial
quantities, on a competitive basis, to multiple State and local
governments.
(13) The term ``nondevelopmental item'' means any of the
following:
(A) Any commercial item.
(B) Any previously developed item of supply that is in use
by a department or agency of the United States, a State or local
government, or a foreign government with which the United States
has a mutual defense cooperation agreement.
(C) Any item of supply described in subparagraph (A) or (B)
that requires only minor modification or modification of the
type customarily available in the commercial marketplace in
order to meet the requirements of the procuring department or
agency.
(D) Any item of supply currently being produced that does
not meet the requirements of subparagraph (A), (B), or (C)
solely because the item is not yet in use.
(14) The term ``component'' means any item supplied to the
Federal Government as part of an end item or of another component.
(15) The term ``commercial component'' means any component that
is a commercial item.
(Pub. L. 93-400, Sec. 4, Aug. 30, 1974, 88 Stat. 797; Pub. L. 96-83,
Sec. 3, Oct. 10, 1979, 93 Stat. 649; Pub. L. 98-191, Sec. 4, Dec. 1,
1983, 97 Stat. 1326; Pub. L. 98-369, div. B, title VII, Sec. 2731, July
18, 1984, 98 Stat. 1195; Pub. L. 98-577, title I, Sec. 102, Oct. 30,
1984, 98 Stat. 3067; Pub. L. 100-679, Sec. 3(c), Nov. 17, 1988, 102
Stat. 4056; Pub. L. 101-510, div. A, title VIII, Sec. 806(a)(1), Nov. 5,
1990, 104 Stat. 1592; Pub. L. 103-355, title IV, Sec. 4001, title VIII,
Sec. 8001, Oct. 13, 1994, 108 Stat. 3338, 3384; Pub. L. 104-106, div. D,
title XLII, Sec. 4204, Feb. 10, 1996, 110 Stat. 655; Pub. L. 106-65,
div. A, title VIII, Sec. 805, Oct. 5, 1999, 113 Stat. 705.)
References in Text
This chapter, referred to in text, was in the original ``this Act'',
meaning Pub. L. 93-400, which is classified principally to this chapter.
For complete classification of this Act to the Code, see Short Title
note set out under section 401 of this title and Tables.
Codification
Section 2731 of Pub. L. 98-369 directed in part that this section be
redesignated as section 4 of Pub. L. 93-400 to correct an inconsistency
in the language of the amendment by Pub. L. 98-191, which amended this
section generally but referred to it as ``Sec. 3''. Since this section
was enacted as section 4 of Pub. L. 93-400 no change was required.
Amendments
1999--Par. (12)(E). Pub. L. 106-65 amended subpar. (E) generally.
Prior to amendment, subpar. (E) read as follows: ``Installation
services, maintenance services, repair services, training services, and
other services if such services are procured for support of an item
referred to in subparagraph (A), (B), (C), or (D) and if the source of
such services--
``(i) offers such services to the general public and the Federal
Government contemporaneously and under similar terms and conditions;
and
``(ii) offers to use the same work force for providing the
Federal Government with such services as the source uses for
providing such services to the general public.''
1996--Par. (12)(F). Pub. L. 104-106 inserted ``or market'' after
``catalog''.
1994--Pub. L. 103-355, Sec. 8001(b)(1), substituted ``this
chapter:'' for ``this chapter--'' in introductory provisions.
Pars. (1) to (3). Pub. L. 103-355, Sec. 8001(b)(2), (3), substituted
``The term'' for ``the term'' and period for semicolon at end.
Par. (4). Pub. L. 103-355, Sec. 8001(b)(2), (4), substituted ``The
term'' for ``the term'' and period for ``; and'' at end.
Pars. (5) to (9). Pub. L. 103-355, Sec. 8001(b)(2), (3), substituted
``The term'' for ``the term'' and period for semicolon at end.
Par. (10). Pub. L. 103-355, Sec. 8001(b)(2), (4), substituted ``The
term'' for ``the term'' and period for ``; and'' at end.
Par. (11). Pub. L. 103-355, Sec. 8001(b)(2), which directed
substitution of ``The term'' for ``the term'' in par. (11), could not be
executed because phrase ``the term'' did not appear subsequent to
amendment by Pub. L. 103-355, Sec. 4001. See below.
Pub. L. 103-355, Sec. 4001, amended par. (11) generally. Prior to
amendment, par. (11) read as follows: ``the term `small purchase
threshold' means $25,000, adjusted on October 1 of each year divisible
by 5 to the amount equal to $25,000 in constant fiscal year 1990 dollars
(rounded to the nearest $1,000).''
Pars. (12) to (15). Pub. L. 103-355, Sec. 8001(a), added pars. (12)
to (15).
1990--Par. (11). Pub. L. 101-510 added par. (11).
1988--Pars. (4) to (11). Pub. L. 100-679 redesignated pars. (5) to
(11) as (4) to (10), respectively, and struck out former par. (4) which
defined ``single system of Government-wide procurement regulations'' for
purposes of this chapter.
1984--Pars. (6) to (8). Pub. L. 98-369 added pars. (6) to (8).
Pars. (9) to (11). Pub. L. 98-577 added pars. (9) to (11).
1983--Pub. L. 98-191 amended section generally, restating
definitions of ``executive agency'' and ``procurement'' and inserting
definitions of ``procurement system'', ``single-system of Government-
wide procurement regulations'', and ``standards''.
1979--Pub. L. 96-83 designated existing provisions as subsec. (a)
and added subsec. (b).
Effective Date of 1996 Amendment
For effective date and applicability of amendment by Pub. L. 104-
106, see section 4401 of Pub. L. 104-106, set out as a note under
section 251 of this title.
Effective Date of 1994 Amendment
For effective date and applicability of amendment by Pub. L. 103-
355, see section 10001 of Pub. L. 103-355, set out as a note under
section 251 of this title.
Effective Date of 1979 Amendment
Amendment by Pub. L. 96-83 effective Oct. 1, 1979, see section 12 of
Pub. L. 96-83, set out as a note under section 401 of this title.
Modification of Federal Acquisition Regulations
Section 2752 of Pub. L. 98-369 provided that: ``Not later than March
31, 1985, the single Government-wide procurement regulation referred to
in section 4(4)(A) of the Office of Federal Procurement Policy Act (41
U.S.C. 403(4)(A)) shall be modified to conform to the requirements of
this title [title VII of Pub. L. 98-369, Secs. 2701-2753, July 18, 1984,
98 Stat. 1175-1203] and the amendments made by this title [see Short
Title of 1984 Amendment note set out under section 251 of this title].''
Section Referred to in Other Sections
This section is referred to in sections 57, 58, 252a, 254b, 259,
264a, 418a, 431, 701 of this title; title 6 sections 393, 421, 423;
title 10 sections 2207, 2225, 2226, 2302, 2302a, 2306a, 2376, 2384,
2393, 2402, 2408, 2410, 2410b, 2410g, 2410i, 2482, 2636, 2662; title 15
sections 205c, 632, 637, 657a; title 16 sections 669h, 777h; title 20
section 1018a; title 22 section 2679c; title 31 section 3567; title 33
section 1368; title 40 sections 3707, 11101; title 42 sections 290aa-3,
5403; title 49 section 40118.
