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(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 items or, to the extent that commercial items suitable to meet the 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 an agency shall ensure that procurement officials in that agency, to the maximum extent practicable
(1) acquire commercial items or nondevelopmental items other than commercial items to meet the needs of the agency; (2) require prime contractors and subcontractors at all levels under the agency contracts to incorporate commercial items or nondevelopmental items other than commercial items as components of items supplied to the 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 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 agency's needs are not available, nondevelopmental items other than commercial items 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 items; and
(6) require training of appropriate personnel in the acquisition of commercial items.
(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; and
(B) before soliciting bids or proposals for a contract 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 items or, to the extent that commercial items suitable to meet the agency's needs are not available, nondevelopmental items other than commercial items available that
(A) meet the agency's requirements;
(B) could be modified to meet the agency's requirements;
(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).
(Added P.L. 103–355, § 8104(a), Oct. 13, 1994, 108 Stat. 3390.)
CHAPTER 141-MISCELLANEOUS PROCUREMENT
Contracts: regulations for bids.
Procurement of critical aircraft and ship spare parts: quality control.
Arms and ammunition: immunity from taxation.
Liquid fuels and natural gas: contracts for storage, handling, or distribution.
Prohibition on the sale of certain defense articles from the stocks of the
Military base reuse studies and community planning assistance.
Prohibition against doing business with certain offerors or contractors.
Procurement of energy systems using renewable forms of energy.
ment and supplies.
Advances for payments for compliance with foreign laws, rent in foreign
Employees or former employees of defense contractors: reports.
Defense contractors: requirements concerning former Department of De-
Procurement of gasohol as motor vehicle fuel.
Operational test and evaluation of defense acquisition programs.
Requirement for authorization by law of certain contracts relating to ves
sels and aircraft.
Lease of vessels, aircraft, and vehicles.
Prohibition of contractors limiting subcontractor sales directly to the United States.
Major weapon systems: contractor guarantees.
Acquisition of petroleum and natural gas: authority to waive contract procedures; acquisition by exchange; sales authority. 2405. Limitation on adjustment of shipbuilding contracts. [2406.
Prohibition on persons convicted of defense-contract related felonies and related criminal penalty on defense contractors.
Contractor employees: protection from reprisal for disclosure of certain information.
Debarment of persons convicted of fraudulent use of "Made in America" labels.
2410g. Advance notification of contract performance outside the United States. 2410h. Acquisition fellowship program. 2410i. Prohibition on contracting with entities that comply with the secondary
Arab boycott of Israel.
Displaced contractor employees: assistance to obtain certification and em-
Contracts for advisory and assistance services: cost comparison studies.
$2381. Contracts: regulations for bids
(a) The Secretary of Defense may
(1) prescribe regulations for the preparation, submission, and opening of bids for contracts; and
(2) require that a bid be accompanied by a written guaranty, signed by one or more responsible persons, undertaking that the bidder, if his bid is accepted, will, within the time prescribed by the Secretary or other officer authorized to make the contract, make a contract and furnish a bond with good and sufficient sureties for the performance of the contract.
(b) If a bidder, after being notified of the acceptance of his bid, fails within the time prescribed under subsection (a)(2) to enter into a contract and furnish the prescribed bond, the Secretary concerned or other authorized officer shall
(1) contract with another person; and
(2) charge against the defaulting bidder and his guarantors the difference between the amount specified by the bidder in his bid and the amount for which a contract is made with the other person, this difference being immediately recoverable by the United States for the use of the military department concerned in an action against the bidder and his guarantors, jointly or severally.
(c) Proceedings under this section are subject to regulations under section 205 of the Federal Property and Administrative Services Act of 1949 (40 U.S.C. 486), unless exempted therefrom under section 201(a) of that Act (40 U.S.C. 481(a)).
(Aug. 10, 1956, ch. 1041, 70A Stat. 136; Oct. 19, 1984, P.L. 98–525, § 1405(35), 98 Stat. 2624; Oct. 13, 1994, P.L. 103–355, § 1507, 108 Stat. 3298.)
[82382. Repealed. P.L. 103-355, §2102(a), Oct. 13, 1994, 108 Stat. 3309]
§2383. Procurement of critical aircraft and ship spare parts: quality control
(a) In procuring any spare or repair part that is critical to the operation of an aircraft or ship, the Secretary of Defense shall require the contractor supplying such part to provide a part that meets all appropriate qualification and contractural quality requirements as may be specified and made available to prospective offerors. In establishing the appropriate qualification requirements, the Secretary of Defense shall use the Department of Defense qualification requirements that were used to qualify the original production part unless the Secretary determines in writing
(1) that there are other requirements sufficiently similar to those requirements that should be used instead; or
(2) that any or all such requirements are unnecessary. (b) In this section, the term "spare or repair part" means any individual piece, part, subassembly, or component which is furnished for the logistic support or repair of an end item and not as an end item itself.
(Added P.L. 100-456, 805, Sept. 29, 1988, 102 Stat. 2010, and amended P.L. 102-190, § 1061(a)(13), Dec. 5, 1991, 105 Stat. 1473; P.L. 103–355, § 2401, Oct. 13, 1994, 108 Stat. 3324.)
§ 2384. Supplies: identification of supplier and sources
(a) The Secretary of Defense shall require that the contractor under a contract with the Department of Defense for the furnishing of supplies to the United States shall mark or otherwise identify supplies furnished under the contract with the identity of the contractor, the national stock number for the supplies furnished (if there is such a number), and the contractor's identification number for the supplies.
(b)(1) The Secretary of Defense shall prescribe regulations requiring that, whenever practicable, each contract requiring the delivery of supplies (other than a contract described in paragraph (2)) shall require that the contractor identify
(A) the actual manufacturer or producer of the item or of all sources of supply of the contractor for that item;
(B) the national stock number of the item (if there is such a number) and the identification number of the actual manufacturer or producer of the item or of each source of supply of the contractor for the item; and
(C) the source of any technical data delivered under the contract.
(2) The regulations prescribed pursuant to paragraph (1) do not apply to a contract that requires the delivery of supplies that are commercial items, as defined in section 4(12) of the Office of Federal Procurement Policy Act (41 U.S.C. 403(12)).
(3) The regulations prescribed pursuant to paragraph (1) do not apply to a contract for an amount not greater than the simplified acquisition threshold (as defined in section 4(11) of the Office of Federal Procurement Policy Act (41 U.S.C. 403(11)). 1
(c) Identification of supplies and technical data under this section shall be made in the manner and with respect to the supplies prescribed by the Secretary of Defense.
(Aug. 10, 1956, ch. 1041, 70A Stat. 137; Oct. 19, 1984, P.L. 98-525, 1231(a), 98 Stat. 2599; amended identically P.L. 99-500, 99-591, 99-661, §§ 101(c) [§ 928(a)1, 101(c) [$ 928(a)], 928(a), Oct. 18, Oct. 30, Nov. 14, 1986, 100 Stat. 1783-156, 3341-156, 3936; Oct. 13, 1994, P.L. 103355, 884102(d), 8105(b), 108 Stat. 3340, 3392.)
§ 2384a. Supplies: economic order quantities
(a)(1) An agency referred to in section 2303(a) of this title shall procure supplies in such quantity as (A) will result in the total cost and unit cost most advantageous to the United States, where practicable, and (B) does not exceed the quantity reasonably expected to be required by the agency.
1 So in law. There should be a closing parenthesis in section 2384(b)(3) after “403(11))”.