10 U.S.C. § 3453: Preference for commercial products and commercial services

functions to be performed; performance required; or essential physical characteristics; 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 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. acquire commercial services, commercial products, or nondevelopmental items other than commercial products to meet the needs of the agency; 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; 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; 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; 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; require training of appropriate personnel in the acquisition of commercial products and commercial services; and 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. before developing new specifications for a procurement by that agency; before soliciting bids or proposals for a contract in excess of the simplified acquisition threshold; and before awarding a task order or delivery order in excess of the simplified acquisition threshold. meet the agency’s requirements; could be modified to meet the agency’s requirements; or could meet the agency’s requirements if those requirements were modified to a reasonable extent. 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). The head of an agency shall document the results of market research in a manner appropriate to the size and complexity of the acquisition. 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. 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 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 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). 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. provide comprehensive information on the subject of market research and the function of market research in the acquisition of commercial products and commercial services; teach best practices for conducting and documenting market research; and provide methodologies for establishing standard processes and reports for collecting and sharing market research across the Department. The Director of the Defense Innovation Unit shall establish a program to be known as the ‘Bridging Operational Objectives and Support for Transition program’ (in this section referred to as the ‘BOOST program’) to accelerate the adoption or integration of commercial technologies into programs of record or fielded capabilities of the Department of Defense. allow portfolio acquisition executives, program managers, or product support managers to request from the Director assistance in identifying, adopting, or integrating commercial technologies; and review commercial technologies in response to each request and identify viable commercial technologies to address the issue presented by such request; upon request, execute coordinated development, experimentation, or integration of identified commercial technologies to enable adoption or integration of commercial technologies into programs of record or fielded capabilities; and establish criteria to allow the Director to terminate assistance provided in response to a request. the Defense Research and Development Rapid Innovation Program established under section 4061(a) of title 10 , United States Code; the Small Business Innovation Research Program and the Small Business Technology Transfer Program established under section 9 of the Small Business Act ( 15 U.S.C. 639 [ 15 U.S.C. 638 ]); and urgent acquisition of items established under section 3601 of title 10 , United States Code. Subject to the availability of appropriations, amounts authorized to be appropriated the [sic] Director of the Defense Innovation Unit may be used to carry out the BOOST program. a summary of persons assisted and integrated commercial technologies; recommendations of the Secretary to improve the BOOST program; and a recommendation whether to continue or terminate the BOOST program. The BOOST program established under this section, and the authorities and requirements under this section, shall expire on December 31, 2030 . The term ‘portfolio acquisition executive’ has the meaning given in section 1732 of title 10 , United States Code, as added by section 1802 of this Act. The term ‘program manager’ has the meaning given in section 1737 of title 10 , United States Code. The term ‘product support manager’ has the meaning given in section 1733 of title 10 , United States Code, as added by section 1803 of this Act.” the acquisition of new, used, overhauled, reconditioned, and remanufactured commercial dual-use parts; and commercial derivative aircraft and engines; and aircraft used by the Air Force or Navy that are based on the design of commercial products. pursuant to competitive procedures (as defined in section 3012 of title 10 , United States Code); and only from suppliers that provide parts that possess an Authorized Release Certificate Federal Aviation Administration Form 8130-3 Airworthy Approval Tag from a certified repair station pursuant to part 145 of title 14, Code of Federal Regulations, or from a certified production approval holder pursuant to part 21 of title 14, Code of Federal Regulations. The term ‘commercial derivative’ means an item procured by the Department of Defense that is or was produced using the same or similar production facilities, a common supply chain, and the same or similar production processes that are used for the production of the item as predominantly used by the general public or by nongovernmental entities for purposes other than governmental purposes. a commercial product; dual-use; described in subsection (b)(2); and not a life-limited part. The term ‘commercial product’ has the meaning given such term in section 103 of title 41 , United States Code. The term ‘dual-use’ has the meaning given such term in section 4801 of title 10 , United States Code.” The procurement process for each covered Distributed Common Ground System shall be carried out in accordance with section 2377 of title 10 , United States Code [now 10 U.S.C. 3453 ]. Not later than 30 days after the date of the enactment of this Act [ Dec. 12, 2017 ], the service acquisition executive responsible for each covered Distributed Common Ground System shall certify to the appropriate congressional committees that the procurement process for increments of the system procured after the date of the enactment of this Act will be carried out in accordance with section 2377 of title 10 , United States Code [now 10 U.S.C. 3453 ]. the congressional defense committees [Committees on Armed Services and Appropriations of the Senate and the House of Representatives]; and the Select Committee on Intelligence of the Senate and the Permanent Select Committee on Intelligence of the House of Representatives. The Distributed Common Ground System of the Army. The Distributed Common Ground System of the Navy. The Distributed Common Ground System of the Marine Corps. The Distributed Common Ground System of the Air Force. The Distributed Common Ground System of the Special Operations Forces.” The Secretary of Defense may establish a commercial operational and support savings initiative to improve readiness and reduce operations and support costs by inserting existing commercial products or technology into military legacy systems through the rapid development of prototypes and fielding of production items based on current commercial technology. reduce the costs of owning and operating a military system, including the costs of personnel, consumables, goods and services, and sustaining the support and investment associated with the peacetime operation of a weapon system; take advantage of the commercial sector’s technological innovations by inserting commercial technology into fielded weapon systems; and emphasize prototyping and experimentation with new technologies and concepts of operations. Projects funded under the commercial operational and support savings initiative shall consist of two phases, Phase I and Phase II. Funds made available during Phase I shall be used to perform the non-recurring engineering, testing, and qualification that are typically needed to adapt a commercial product or technology for use in a military system. establishment of cost and performance metrics to evaluate project success; establishment of a transition plan and agreement with a military department or Defense Agency for adoption and sustainment of the technology or system; and the development, fabrication, and delivery of a demonstrated prototype to a military department for installation into a fielded Department of Defense system. Programs shall be terminated if no agreement is established within two years of project initiation. The Office of the Secretary of Defense may provide up to 50 percent of Phase I funding for a project. The military department or Defense Agency concerned may provide the remainder of Phase I funding, which may be provided out of operation and maintenance funding. Phase I funding shall not exceed three years. Phase I projects shall be selected based on a merit-based process using criteria to be established by the Secretary of Defense. Phase II shall include the purchase of limited production quantities of the prototype kits and transition to a program of record for continued sustainment. Phase II awards may be made without competition if general solicitation competitive procedures were used for the selection of parties for participation in a Phase I project. Phase II awards may be made as firm fixed-price awards. The use of a merit-based process for selection of projects under the commercial operational and support savings initiative shall be considered to be the use of competitive procedures for purposes of [former] chapter 137 of title 10, United States Code. In this subsection, the term ‘commercial product’ has the meaning given that term in section 103 of title 41 .” the head of an agency may not enter into a contract in excess of $10,000,000 for facilities-related services, knowledge-based services (except engineering services), construction services, medical services, or transportation services that are not commercial services unless the service acquisition executive of the military department concerned, the head of the Defense Agency concerned, the commander of the combatant command concerned, or the Under Secretary of Defense for Acquisition and Sustainment (as applicable) determines in writing that no commercial services are suitable to meet the agency’s needs as provided in section 2377(c)(2) of title 10 , United States Code [now 10 U.S.C. 3453(c)(2) ]; and the head of an agency may not enter into a contract in an amount above the simplified acquisition threshold and below $10,000,000 for facilities-related services, knowledge-based services (except engineering services), construction services, medical services, or transportation services that are not commercial services unless the contracting officer determines in writing that no commercial services are suitable to meet the agency’s needs as provided in section 2377(c)(2) of such title [now 10 U.S.C. 3453(c)(2) ].” provide that the head of an agency may not enter into a contract in excess of the simplified acquisition threshold for information technology products or services that are not commercial items unless the head of the agency determines in writing that no commercial items are suitable to meet the agency’s needs as provided in subsection (c)(2) of such section; and ensure that market research conducted in accordance with subsection (c) of such section is used, where appropriate, to inform price reasonableness determinations. Not later than 180 days after the date of the enactment of this Act [ Nov. 25, 2015 ], the Chairman and the Vice Chairman of the Joint Chiefs of Staff, in consultation with the Under Secretary of Defense for Acquisition and Sustainment, shall review Chairman of the Joint Chiefs of Staff Instruction 3170.01, the Manual for the Operation of the Joint Capabilities Integration and Development System, and other documents governing the requirements development process and revise these documents as necessary to ensure that the Department of Defense fully complies with the requirement in section 2377(c) of title 10 , United States Code [now 10 U.S.C. 3453(c) ], and section 10.001 of the Federal Acquisition Regulation for Federal agencies to conduct appropriate market research before developing new requirements. For the purposes of this section, the term ‘market research’ means a review of existing systems, subsystems, capabilities, and technologies that are available or could be made available to meet the needs of the Department of Defense in whole or in part. The review may include any of the techniques for conducting market research provided in section 10.002(b)(2) of the Federal Acquisition Regulation and shall include, at a minimum, contacting knowledgeable individuals in Government and industry regarding existing market capabilities.” The Secretary of Defense shall ensure that contracting officials identify and evaluate, at all stages of the acquisition process (including concept refinement, concept decision, and technology development), opportunities for the use of commercial computer software and other non-developmental software. Not later than 270 days after the date of enactment of this Act [ Oct. 14, 2008 ], the Secretary shall submit to the congressional defense committees [Committees on Armed Services and Appropriations of the Senate and the House of Representatives] a report on actions taken to implement subsection (a), including a description of any relevant regulations and policy guidance.”