CHAPTER 140-PROCUREMENT OF COMMERCIAL ITEMS Relationship of commercial item provisions to other provisions of law. Sec. 2375. 2376. 2377. Preference for acquisition of commercial items. 2378. Procurement of copier paper containing specified percentages of post-consumer recycled content. § 2375. Relationship of commercial item provisions to other provisions of law (a) APPLICABILITY OF TITLE.-Unless otherwise specifically provided, nothing in this chapter shall be construed as providing that any other provision of this title relating to procurement is inapplicable to the procurement of commercial items. (b) LIST OF LAWS INAPPLICABLE TO CONTRACTS FOR THE ACQUISITION OF COMMERCIAL ITEMS.-No contract for the procurement of a commercial item entered into by the head of an agency shall be subject to any law properly listed in the Federal Acquisition Regulation (pursuant to section 34 of the Office of Federal Procurement Policy Act (41 U.S.C. 430)). (c) CROSS REFERENCE TO EXCEPTION TO COST OR PRICING DATA REQUIREMENTS FOR COMMERCIAL ITEMS.-For a provision relating to an exception for requirements for cost or pricing data for contracts for the procurement of commercial items, see section 2306a(b) of this title. (Added P.L. 103-355, §8102, Oct. 13, 1994, 108 Stat. 3390; amended P.L. 105-85, § 1073(a)(51), Nov. 18, 1997, 111 Stat. 1903; P.L. 107-107, § 1048(a)(18), Dec. 28, 2001, 115 Stat. 1223.) § 2376. Definitions In this chapter: (1) The terms "commercial item", "nondevelopmental item", "component", and "commercial component" have the meanings provided in section 4 of the Office of Federal Procurement Policy Act (41 U.S.C. 403). (2) The term "head of an agency" means the Secretary of Defense, the Secretary of Homeland Security, and the Administrator of the National Aeronautics and Space Administration. (3) The term "agency" means the Department of Defense, the Coast Guard, and the National Aeronautics and Space Administration. (Added P.L. 103-355, § 8103, Oct. 13, 1994, 108 Stat. 3390; P.L. 107-107, § 1048(a)(19), Dec. 28, 2001, 115 Stat. 1223; P.L. 107-296, § 1704(b)(1), Nov. 25, 2002, 116 Stat. 2314.) § 2377. Preference for acquisition of commercial items (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 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 agenshall conduct market research appropriate to circumstances— cy the (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— or (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.) § 2378. Procurement of copier paper containing specified percentages of post-consumer recycled content (a) PROCUREMENT REQUIREMENT. (1) Except as provided in subsections (b) and (c), a department or agency of the Department of Defense may not procure copying machine paper after the applicable date specified in paragraph (2) unless the percentage of postconsumer recycled content of the paper meets the percentage then in effect under such paragraph. (2) The percentage of post-consumer recycled content of paper required under paragraph (1) is as follows: (A) 20 percent as of January 1, 1998. (C) 50 percent as of January 1, 2004. (b) EXCEPTIONS.-A department or agency of the Department of Defense is not required to procure copying machine paper containing a percentage of post-consumer recycled content that meets the applicable requirement in subsection (a) if the Secretary concerned determines that one or more of the following circumstances apply with respect to that procurement: (1) The cost of procuring copying machine paper satisfying the applicable requirement significantly exceeds the cost of procuring copying machine paper containing a percentage of post-consumer recycled content that does not meet such requirement. The Secretary concerned shall establish the cost differential to be applied under this paragraph. (2) Copying machine paper containing a percentage of post-consumer recycled content meeting such requirement is not reasonably available within a reasonable period of time. (3) Copying machine paper containing a percentage of post-consumer recycled content meeting such requirement does not meet performance standards of the department or agency for copying machine paper. (c) EFFECT OF INABILITY TO MEET GOAL IN 2004.-(1) In the case of the requirement that will take effect on January 1, 2004, pursuant to subsection (a)(2)(C), the requirement shall not take effect with respect to a military department or Defense Agency if the Secretary of Defense determines that the department or agency will be unable to meet such requirement by that date. (2) The Secretary shall submit to Congress written notice of any determination made under paragraph (1) and the reasons for the determination. The Secretary shall submit such notice, if at all, not later than January 1, 2003. (d) SECRETARY CONCERNED DEFINED.-In this section, the term "Secretary concerned" means the Secretary of each military department and the Secretary of Defense with respect to the Defense Agencies. (Added P.L. 105–85, § 350(a), Nov. 18, 1997, 111 Stat. 1691.) Sec. CHAPTER 141-MISCELLANEOUS PROCUREMENT Contracts: regulations for bids. Repealed.] Supplies: identification of supplier and sources. Arms and ammunition: immunity from taxation. Procurement of table and kitchen equipment for officers' quarters: 2381. [2382. Repealed.] [2383. 2384. 2384a. 2385. 2386. 2387. 2388. 2389. 2390. 2391. 2392. 2393. 2394. 2394a. 2395. 2396.. [2397. Liquid fuels and natural gas: contracts for storage, handling, or distribution. Ensuring safety regarding insensitive munitions. 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. Availability of appropriations for procurement of technical military equipment and supplies. Advances for payments for compliance with foreign laws, rent in foreign countries, tuition, public utility services, and pay and supplies of armed forces of friendly foreign countries. Repealed.] [2397a. Repealed.] [2397b. Repealed.] Procurement of gasohol as motor vehicle fuel. Operational test and evaluation of defense acquisition programs. Low-rate initial production of new systems. Requirement for authorization by law of certain contracts relating to vessels and aircraft. Lease of vehicles, equipment, vessels, and aircraft. [2397c. Repealed.] Prohibition of contractors limiting subcontractor sales directly to the Repealed.] Acquisition of certain fuel sources: authority to waive contract procedures; acquisition by exchange; sales authority. Repealed.] Transferred.] 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. Repealed.] Requests for equitable adjustment or other relief: certification. Preference for energy efficient electric equipment. [2410e. Repealed.] 2410f. Debarment of persons convicted of fraudulent use of "Made in America" labels. 2410g. Advance notification of contract performance outside the United States. [2410h. Transferred and redesignated as § 1747. P.L. 107-314, § 1062(a)(10)(B), Dec. 2, 2002, 116 Stat. 2525] 2410i. 2410j. 2410k. 24101. 2410m. 2410n. 24100. Prohibition on contracting with entities that comply with the secondary Displaced contractor employees: assistance to obtain certification and Defense contractors: listing of suitable employment openings with local employment service office. Contracts for advisory and assistance services: cost comparison studies. Retention of amounts collected from contractor during the pendency of contract dispute. Products of Federal Prison Industries: procedural requirements. Multiyear procurement authority: purchase of dinitrogen tetroxide, hydrazine, and hydrazine-related products. § 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 121 of title 40, unless exempted therefrom under section 501(a)(2) of title 40. (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; P.L. 107-217, §3(b)(6), Aug. 21, 2002, 116 Stat. 1295.) [§ 2382. Repealed. P.L. 103–355, §2102(a), Oct. 13, 1994, 108 Stat. 3309] [§ 2383. Repealed. P.L. 104-106, § 803(a), Feb. 10, 1996, 110 Stat. 390] § 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 |