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SEC. 836. REVISION OF DEFINITION OF COMMERCIAL ITEM FOR PURPOSES
OF FEDERAL ACQUISITION STATUTES.
(a) Definitions In Chapter 1 Of Title 41, United States Code.—
(1) SEPARATION OF commercial item DEFINITION INTO DEFINITIONS OF
commercial product AND commercial service.—Chapter 1 of title
41, United States Code, is amended by striking section 103 and
inserting the following new sections:
Ҥ 103. Commercial product
“In this subtitle, the term ‘commercial product’ means any of
the following:
“(1) A product, other than real property, that—
“(A) is of a type customarily used by the general public or by
nongovernmental entities for purposes other than governmental
purposes; and
“(B) has been sold, leased, or licensed, or offered for sale,
lease, or license, to the general public.
“(2) A product that—
“(A) evolved from a product described in paragraph (1) through
advances in technology or performance; and
“(B) 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.
“(3) A product that would satisfy the criteria in paragraph (1)
or (2) were it not for—
“(A) modifications of a type customarily available in the
commercial marketplace; or
“(B) minor modifications made to meet Federal Government
requirements.
“(4) Any combination of products meeting the requirements of
paragraph (1), (2), or (3) that are of a type customarily
combined and sold in combination to the general public.
“(5) A product, or combination of products, referred to in
paragraphs (1) through (4), even though the product, or
combination of products, is transferred between or among
separate divisions, subsidiaries, or affiliates of a contractor.
“(6) A nondevelopmental item if the procuring agency determines,
in accordance with conditions in the Federal Acquisition
Regulation, that—
“(A) the product was developed exclusively at private expense;
and
“(B) has been sold in substantial quantities, on a competitive
basis, to multiple State and local governments or to multiple
foreign governments.
Ҥ 103a. Commercial service
“In this subtitle, the term ‘commercial service’ means any of
the following:
“(1) Installation services, maintenance services, repair
services, training services, and other services if—
“(A) those services are procured for support of a commercial
product, regardless of whether the services are provided by the
same source or at the same time as the commercial product; and
“(B) 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;
“(2) Services of a type offered and sold competitively, in
substantial quantities, in the commercial marketplace—
“(A) based on established catalog or market prices;
“(B) for specific tasks performed or specific outcomes to be
achieved; and
“(C) under standard commercial terms and conditions.
“(3) A service described in paragraph (1) or (2), even though
the service is transferred between or among separate divisions,
subsidiaries, or affiliates of a contractor.”.
(2) CONFORMING AMENDMENTS TO TITLE 41 DEFINITIONS.—
(A) DEFINITION OF COMMERCIAL COMPONENT.—Section 102 of such
title is amended by striking “commercial item” and inserting
“commercial product”.
(B) DEFINITION OF COMMERCIALLY AVAILABLE OFF-THE-SHELF
ITEM.—Section 104(1)(A) is amended by striking “commercial item”
and inserting “commercial product”.
(C) DEFINITION OF NONDEVELOPMENTAL ITEM.—Section 110(1) of such
title is amended by striking “commercial item” and inserting
“commercial product”.
(3) CLERICAL AMENDMENT.—The table of sections at the beginning
of chapter 1 of title 41, United States Code, is amended by
striking the item relating to section 103 and inserting the
following new items:
“103. Commercial product.
“103a. Commercial service.”.
(b) Conforming Amendments To Other Provisions Of Title 41,
United States Code.—Title 41, United States Code, is further
amended as follows:
(1) Section 1502(b) is amended—
(A) in paragraph (1)(A), by striking “commercial items” and
inserting “commercial products or commercial services”;
(B) in paragraph (1)(C)(i), by striking “commercial item” and
inserting “commercial product or commercial service”; and
(C) in paragraph (3)(A)(i), by striking “commercial items” and
inserting “commercial products or commercial services”.
(2) Section 1705(c) is amended by striking “commercial items”
and inserting “commercial products and commercial services”.
(3) Section 1708 is amended by striking “commercial items” in
subsections (c)(6) and (e)(3) and inserting “commercial products
or commercial services”.
(4) Section 1901 is amended—
(A) in subsection (a)(2), by striking “commercial items” and
inserting “commercial products or commercial services”; and
(B) in subsection (e)—
(i) by striking “Commercial Items” in the subsection heading and
inserting “Commercial Products And Commercial Services”; and
(ii) by striking “commercial items” and inserting “commercial
products or commercial services”.
(5) Section 1903(c) is amended—
(A) in the subsection heading, by striking “Commercial Item” and
inserting “Commercial Product Or Commercial Service”;
(B) in paragraph (1), by striking “as a commercial item” and
inserting “as a commercial product or a commercial service”; and
(C) in paragraph (2), by striking “for an item or service
treated as a commercial item” and inserting “for a product or
service treated as a commercial product or a commercial
service”.
(6) (A) Section 1906 is amended by striking “commercial items”
each place it appears in subsections (b), (c), and (d) and
inserting “commercial products or commercial services”.
(B) (i) The heading of such section is amended to read as
follows:
Ҥ 1906. List of laws inapplicable to procurements of commercial
products and commercial services”.
(ii) The table of sections at the beginning of chapter 19 is
amended by striking the item relating to section 1906 and
inserting the following new item:
“1906. List of laws inapplicable to procurements of commercial
products and commercial services.”.
(7) Section 3304 is amended by striking “commercial item” in
subsections (a)(5) and (e)(4)(B) and inserting “commercial
product”.
(8) Section 3305(a)(2) is amended by striking “commercial items”
and inserting “commercial products or commercial services”.
(9) Section 3306(b) is amended by striking “commercial items”
and inserting “commercial products or commercial services”.
(10) (A) Section 3307 is amended—
(i) in subsection (a)—
(I) by striking “Commercial Items” in the subsection heading and
inserting “Commercial Products And Commercial Services”;
(II) in paragraph (1), by striking “commercial items” and
inserting “commercial products and commercial services”; and
(III) in paragraph (2), by striking “a commercial item” and
inserting “a commercial product or commercial service”;
(ii) in subsection (b)—
(I) in paragraph (2), by striking “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” and inserting “commercial services or
commercial products or, to the extent that commercial products
suitable to meet the executive agency’s needs are not available,
nondevelopmental items other than commercial products”; and
(II) in paragraph (3), by striking “commercial items and
nondevelopmental items other than commercial items” and
inserting “commercial services, commercial products, and
nondevelopmental items other than commercial products”;
(iii) in subsection (c)—
(I) in paragraphs (1) and (2), by striking “commercial items or
nondevelopmental items other than commercial items” and
inserting “commercial services or commercial products or
nondevelopmental items other than commercial products”;
(II) in paragraphs (3) and (4), by striking “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” and inserting “commercial
services or commercial products or, to the extent that
commercial products suitable to meet the executive agency’s
needs are not available, nondevelopmental items other than
commercial products”; and
(III) in paragraphs (5) and (6), by striking “commercial items”
and inserting “commercial products and commercial services”;
(iv) in subsection (d)(2), by striking “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” and inserting “commercial services or
commercial products or, to the extent that commercial products
suitable to meet the executive agency’s needs are not available,
nondevelopmental items other than commercial products”; and
(v) in subsection (e)—
(I) in paragraph (1), by inserting “103a, 104,” after “sections
102, 103,”;
(II) in paragraph (2)(A), by striking “commercial items” and
inserting “commercial products or commercial services”;
(III) in the first sentence of paragraph (2)(B), by striking
“commercial end items” and inserting “end items that are
commercial products”;
(IV) in paragraphs (2)(B)(i), (2)(C)(i) and (2)(D), by striking
“commercial items or commercial components” and inserting
“commercial products, commercial components, or commercial
services”;
(V) in paragraph (2)(C), in the matter preceding clause (i), by
striking “commercial items” and inserting “commercial products
or commercial services”;
(VI) in paragraph (4)(A), by striking “commercial items” and
inserting “commercial products or commercial services”;
(VII) in paragraph (4)(C)(i), by striking “commercial item, as
described in section 103(5)” and inserting “commercial product,
as described in section 103a(1)”; and
(VIII) in paragraph (5), by striking “items” each place it
appears and inserting “products”.
(B) (i) The heading of such section is amended to read as
follows:
Ҥ 3307. Preference for commercial products and commercial
services”.
(ii) The table of sections at the beginning of chapter 33 is
amended by striking the item relating to section 3307 and
inserting the following new item:
“3307. Preference for commercial products and commercial
services.”.
(11) Section 3501 is amended—
(A) in subsection (a)—
(i) by striking paragraph (1);
(ii) by redesignating paragraphs (2) and (3) as paragraphs (1)
and (2), respectively; and
(iii) in paragraph (2) (as so redesignated), by striking
“commercial items” and inserting “commercial products or
commercial services”; and
(B) in subsection (b)—
(i) by striking “ITEM” in the heading for paragraph (1); and
(ii) by striking “commercial items” in paragraphs (1) and (2)(A)
and inserting “commercial services”.
(12) Section 3503 is amended—
(A) in subsection (a)(2), by striking “a commercial item” and
inserting “a commercial product or a commercial service”; and
(B) in subsection (b)—
(i) by striking “Commercial Items” in the subsection heading and
inserting “Commercial Products Or Commercial Services”; and
(ii) by striking “a commercial item” each place it appears and
inserting “a commercial product or a commercial service”.
(13) Section 3505(b) is amended by striking “commercial items”
each place it appears and inserting “commercial products or
commercial services”.
(14) Section 3509(b) is amended by striking “commercial items”
and inserting “commercial products or commercial services”.
(15) Section 3704(c)(5) is amended by striking “commercial item”
and inserting “commercial product”.
(16) Section 3901(b)(3) is amended by striking “commercial
items” and inserting “commercial products or commercial
services”.
(17) Section 4301(2) is amended by striking “commercial items”
and inserting “commercial products or commercial services”.
(18) (A) Section 4505 is amended by striking “commercial items”
in subsections (a) and (c) and inserting “commercial products or
commercial services”.
(B) (i) The heading of such section is amended to read as
follows:
Ҥ 4505. Payments for commercial products and commercial
services”.
(ii) The table of sections at the beginning of chapter 45 is
amended by striking the item relating to section 4505 and
inserting the following new item:
“4505. Payments for commercial products and commercial
services.”.
(19) Section 4704(d) is amended by striking “commercial items”
both places it appears and inserting “commercial products or
commercial services”.
(20) Sections 8102(a)(1), 8703(d)(2), and 8704(b) are amended by
striking “commercial items (as defined in section 103 of this
title)” and inserting “commercial products or commercial
services (as defined in sections 103 and 103a, respectively, of
this title)”.
(c) Amendments To Chapter 137 Of Title 10, United States
Code.—Chapter 137 of title 10, United States Code, is amended as
follows:
(1) Section 2302(3) is amended—
(A) by redesignating subparagraphs (J), (K), and (L) as
subparagraphs (K), (L), and (M); and
(B) by striking subparagraph (I) and inserting the following new
subparagraphs (I) and (J):
“(I) The term ‘commercial product’.
“(J) The term ‘commercial service”.’.”.
(2) Section 2304 is amended—
(A) in subsections (c)(5) and (f)(2)(B), by striking “brand-name
commercial item” and inserting “brand-name commercial product”;
(B) in subsection (g)(1)(B), by striking “commercial items” and
inserting “commercial products or commercial services”; and
(C) in subsection (i)(3), by striking “commercial items” and
inserting “commercial products”.
(3) Section 2305 is amended—
(A) in subsection (a)(2), by striking “commercial items” and
inserting “commercial products or commercial services”; and
(B) in subsection (b)(5)(B)(v), by striking “commercial item”
and inserting “commercial product”.
(4) Section 2306(b) is amended by striking “commercial items”
and inserting “commercial products or commercial services”.
(5) Section 2306a is amended—
(A) in subsection (b)—
(i) in paragraph (1)(B), by striking “a commercial item” and
inserting “a commercial product or a commercial service”;
(ii) in paragraph (2)—
(I) by striking “COMMERCIAL ITEMS” in the paragraph heading and
inserting “COMMERCIAL PRODUCTS OR COMMERCIAL SERVICES”; and
(II) by striking “commercial item” each place it appears and
inserting “commercial product or commercial services”;
(iii) in paragraph (3)—
(I) by striking “COMMERCIAL ITEMS” in the paragraph heading and
inserting “COMMERCIAL PRODUCTS”; and
(II) by striking “item” each place it appears and inserting
“product”; and
(iv) in paragraph (4)—
(I) by striking “COMMERCIAL ITEM” in the paragraph heading and
inserting “COMMERCIAL PRODUCT OR COMMERCIAL SERVICE”;
(II) by striking “commercial item” in subparagraph (A) after
“applying the”;
(III) by striking “prior commercial item determination” in
subparagraph (A) and inserting “prior commercial product or
commercial service determination”;
(IV) by striking “of such item” in subparagraph (A) and
inserting “of such product or service”;
(V) by striking “of an item previously determined to be a
commercial item” in subparagraph (B) and inserting “of a product
or service previously determined to be a commercial product or a
commercial service”;
(VI) by striking “of a commercial item,” in subparagraph (B) and
inserting “of a commercial product or a commercial service, as
the case may be,”;
(VII) by striking “the commercial item determination” in
subparagraph (B) and inserting “the commercial product or
commercial service determination”; and
(VIII) by striking “commercial item” in subparagraph (C); and
(v) in paragraph (5), by striking “commercial items” and
inserting “commercial products or commercial services”;
(B) in subsection (d)(2), by striking “commercial items” each
place it appears and inserting “commercial products or
commercial services”; and
(C) in subsection (h)—
(i) in paragraph (2), by striking “commercial items” and
inserting “commercial products or commercial services”; and
(ii) by striking paragraph (3).
(6) Section 2307(f) is amended—
(A) by striking “Commercial Items” in the subsection heading and
inserting “Commercial Products And Commercial Services”; and
(B) by striking “commercial items” in paragraphs (1) and (2) and
inserting “commercial products and commercial services”.
(7) Section 2320(b) is amended—
(A) in paragraph (1), by striking “a commercial item, the item”
and inserting “a commercial product, the product”; and
(B) in paragraph (9)(A), by striking “any noncommercial item or
process” and inserting “any noncommercial product or process”.
(8) Section 2321(f) is amended—
(A) in paragraph (1)—
(i) by striking “commercial items” and inserting “commercial
products”; and
(ii) by striking “the item” both places it appears and inserting
“commercial products”; and
(B) in paragraph (2)(A), in clauses (i) and (ii), by striking
“commercial item” and inserting “commercial product”.
(9) Section 2324(l)(1)(A) is amended by striking “commercial
items” and inserting “commercial products or commercial
services”.
(10) Section 2335(b) is amended by striking “commercial items”
and inserting “commercial products and commercial services”.
(d) Amendments To Chapter 140 Of Title 10, United States
Code.—Chapter 140 of title 10, United States Code, is amended as
follows:
(1) Section 2375 is amended—
(A) in subsection (a), by striking “commercial item” in
paragraphs (1) and (2) and inserting “commercial product or
commercial service”;
(B) in subsections (b) and (c)—
(i) by striking “Commercial Items” in the subsection heading and
inserting “Commercial Products And Commercial Services”; and
(ii) by striking “commercial items” each place it appears and
inserting “commercial products and commercial services”; and
(C) in subsection (e)(3), by striking “commercial items” and
inserting “commercial products and commercial services”.
(2) Section 2376(1) is amended—
(A) by striking “terms ‘commercial item’,” and inserting “terms
‘commercial product’, ‘commercial service’,”; and
(B) by striking “chapter 1 of title 41” and inserting “sections
103, 103a, 110, 105, and 102, respectively, of title 41”.
(3) Section 2377 is amended—
(A) in subsection (a)—
(i) in paragraph (2), by striking “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” and inserting “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”; and
(ii) in paragraph (3), by striking “commercial items and
nondevelopmental items other than commercial items” and
inserting “commercial services, commercial products, and
nondevelopmental items other than commercial products”;
(B) in subsection (b)—
(i) in paragraphs (1) and (2), by striking “commercial items or
nondevelopmental items other than commercial items” and
inserting “commercial services, commercial products, or
nondevelopmental items other than commercial products”;
(ii) in paragraphs (3) and (4), by striking “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” and inserting “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”; and
(iii) in paragraphs (5) and (6), by striking “commercial items”
and inserting “commercial products and commercial services”;
(C) in subsection (c)—
(i) in paragraph (2), by striking “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” and inserting “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”; and
(ii) in paragraph (4), by striking “items other than commercial
items” and inserting “products other than commercial products or
services other than commercial services”;
(D) in subsection (d)—
(i) in the first sentence, by striking “commercial items” and
inserting “commercial products or commercial services”;
(ii) in paragraph (1), by striking “items” and inserting
“products or services”; and
(iii) in paragraph (2), by striking “items” and inserting
“products or services”; and
(E) in subsection (e)(1), by striking “commercial items” and
inserting “commercial products and commercial services”.
(4) Section 2379 is amended—
(A) by striking “Commercial Items” in the headings of
subsections (b) and (c) and inserting “Commercial Products”;
(B) in subsections (a)(1)(A), (b)(2), and (c)(1)(B), by striking
“, as defined in section 103 of title 41”; and
(C) by striking “commercial item” and “commercial items” each
place they appear and inserting “commercial product” and
“commercial products”, respectively.
(5) Section 2380 is amended—
(A) in subsection (a), by striking “commercial item
determinations” in paragraphs (1) and (2) and inserting
“commercial product and commercial service determinations”; and
(B) in subsection (b) (as added by section 848 of the National
Defense Authorization Act for Fiscal Year 2018)—
(i) by striking “Item” in the subsection heading;
(ii) by striking “an item” each place it appears and inserting
“a product or service”;
(iii) by striking “item” after “using commercial” each place it
appears;
(iv) by striking “prior commercial item determination” and
inserting “prior commercial product or service determination”;
(v) by striking “such item” and inserting “such product or
service”; and
(vi) by striking “the item” both places it appears and inserting
“the product or service”.
(6) Section 2380a is amended—
(A) in subsection (a)—
(i) by striking “items and” and inserting “products and”; and
(ii) by striking “commercial items” and inserting “commercial
products and commercial services, respectively,”; and
(B) in subsection (b), by striking “commercial items” and
inserting “commercial services”.
(7) Section 2380B is amended by striking “commercial item” and
inserting “commercial product”.
(8) AMENDMENTS TO HEADINGS, ETC.—
(A) The heading of such chapter is amended to read as follows:
“CHAPTER 140—PROCUREMENT OF COMMERCIAL PRODUCTS AND COMMERCIAL
SERVICES”.
(B) The heading of section 2375 is amended to read as follows:
Ҥ 2375. Relationship of other provisions of law to procurement
of commercial products and commercial services”.
(C) The heading of section 2377 is amended to read as follows:
Ҥ 2377. Preference for commercial products and commercial
services”.
(D) The heading of section 2379 is amended to read as follows:
Ҥ 2379. Procurement of a major weapon system as a commercial
product: requirement for prior determination by Secretary of
Defense and notification to Congress”.
(E) The heading of section 2380 is amended to read as follows:
Ҥ 2380. Commercial product and commercial service
determinations by Department of Defense”.
(F) The heading of section 2380a is amended to read as follows:
Ҥ 2380a. Treatment of certain products and services as
commercial products and commercial services”.
(G) Section 2380B is redesignated as section 2380b and the
heading of that section is amended to read as follows:
Ҥ 2380b. Treatment of commingled items purchased by contractors
as commercial products”.
(H) The table of sections at the beginning of such chapter is
amended to read as follows:
“2375. Relationship of other provisions of law to procurement of
commercial products and commercial services.
“2376. Definitions.
“2377. Preference for commercial products and commercial
services.
“2379. Procurement of a major weapon system as a commercial
product: requirement for prior determination by Secretary of
Defense and notification to Congress.
“2380. Commercial product and commercial service determinations
by Department of Defense.
“2380a. Treatment of certain products and services as commercial
products and commercial services.
“2380b. Treatment of commingled items purchased by contractors
as commercial products.”.
(e) Other Amendments To Title 10, United States Code.—Title 10,
United States Code, is further amended as follows:
(1) Section 2226(b) is amended by striking “for services” and
all that follows through “deliverable items” and inserting “for
services or deliverable items”.
(2) Section 2384(b)(2) is amended by striking “commercial items”
and inserting “commercial products”.
(3) Section 2393(d) is amended by striking “commercial items (as
defined in section 103 of title 41)” and inserting “commercial
products or commercial services (as defined in sections 103 and
103a, respectively, of title 41)”.
(4) Section 2402(d) is amended—
(A) in paragraph (1), by striking “commercial items” both places
it appears and inserting “commercial products or commercial
services”; and
(B) in paragraph (2), by striking “the term” and all that
follows and inserting “the terms ‘commercial product’ and
‘commercial service’ have the meanings given those terms in
sections 103 and 103a, respectively, of title 41.”.
(5) Section 2408(a)(4)(B) is amended by striking “commercial
items (as defined in section 103 of title 41)” and inserting
“commercial products or commercial services (as defined in
sections 103 and 103a, respectively, of title 41)”.
(6) Section 2410b(c) is amended by striking “commercial items”
and inserting “commercial products”.
(7) Section 2410g(d)(1) is amended by striking “Commercial items
(as defined in section 103 of title 41)” and inserting
“Commercial products or commercial services (as defined in
sections 103 and 103a, respectively, of title 41)”.
(8) Section 2447a is amended—
(A) in subsection (a)(2), by striking “commercial items and
technologies” and inserting “commercial products and
technologies”; and
(B) in subsection (c), by inserting before the period at the end
the following: “and the term ‘commercial product’ has the
meaning given that term in section 103 of title 41”.
(9) Section 2451(d) is amended by striking “commercial items”
and inserting “commercial products (as defined in section 103 of
title 41)”.
(10) Section 2464 is amended—
(A) in subsection (a)—
(i) in paragraph (3), by striking “commercial items” and
inserting “commercial products or commercial services”; and
(ii) in paragraph (5), by striking “The commercial items covered
by paragraph (3) are commercial items” and inserting “The
commercial products or commercial services covered by paragraph
(3) are commercial products (as defined in section 103 of title
41) or commercial services (as defined in section 103a of such
title)”; and
(B) in subsection (c)—
(i) by striking “Commercial Items” in the subsection heading and
inserting “Commercial Products Or Commercial Services”; and
(ii) by striking “commercial item” and inserting “commercial
product or commercial service”.
(11) Section 2484(f) is amended—
(A) by striking “Commercial Items” in the subsection heading and
inserting “Commercial Products”; and
(B) by striking “commercial item” and inserting “commercial
product”.
(12) The items relating to chapter 140 in the tables of chapters
at the beginning of subtitle A, and at the beginning of part IV
of subtitle A, are amended to read as follows:
“140. Procurement of Commercial Products and Commercial Services
2377”.
(f) Amendments To Provisions Of National Defense Authorization
Acts.—
(1) Section 806(b) of the National Defense Authorization Act for
Fiscal Years 1992 and 1993 (Public Law 102–190; 10 U.S.C. 2302
note) is amended by striking “commercial items (as defined in
section 103 of title 41, United States Code)” and inserting
“commercial products or commercial services (as defined in
sections 103 and 103a, respectively, of title 41, United States
Code)”.
(2) Section 821(e) of the Floyd D. Spence National Defense
Authorization Act for Fiscal Year 2001 (as enacted into law by
Public Law 106–398; 10 U.S.C. 2302 note) is amended—
(A) by striking paragraph (2); and
(B) by redesignating paragraph (3) as paragraph (2).
(3) Section 821(b) of the National Defense Authorization Act for
Fiscal Year 2008 (Public Law 110–181; 10 U.S.C. 2304 note) is
amended—
(A) in paragraph (1), by striking “a commercial item” and
inserting “a commercial product or a commercial service”;
(B) in paragraph (2), by striking “commercial item” and
inserting “commercial product ”; and
(C) by adding at the end the following new paragraph:
“(3) The term ‘commercial service’ has the meaning provided by
section 103a of title 41, United States Code.”.
(4) Section 817(d) of the Bob Stump National Defense
Authorization Act for Fiscal Year 2003 (Public Law 107–314; 10
U.S.C. 2306a note) is amended—
(A) in paragraph (1), by striking “commercial item exceptions”
and inserting “commercial product-commercial service
exceptions”; and
(B) in paragraph (2), by striking “commercial item exception”
and inserting “commercial product-commercial service exception”;
(5) Section 852(b)(2)(A)(ii) of the National Defense
Authorization Act for Fiscal Year 2007 (Public Law 109–364; 10
U.S.C. 2324 note) is amended by striking “a commercial item, as
defined in section 103 of title 41” and inserting “a commercial
product or a commercial service, as defined in sections 103 and
103a, respectively, of title 41”.
(6) Section 805 of the National Defense Authorization Act for
Fiscal Year 2008 (Public Law 110–181; 10 U.S.C. 2330 note) is
amended—
(A) in subsection (b), by striking “commercial items” in
paragraphs (1) and (2)(A) and inserting “commercial services”;
and
(B) in subsection (c)—
(i) by striking “ITEM” in the headings for paragraphs (1) and
(2) and inserting “SERVICES”;
(ii) in the matter in paragraph (1) preceding subparagraph (A),
by striking “commercial item” and inserting “commercial
service”;
(iii) in paragraph (1)(A), by striking “a commercial item, as
described in section 103(5) of title 41” and inserting “a
service, as described in section 103a(1) of title 41”;
(iv) in paragraph (1)(C)(i), by striking “section 103(6) of
title 41” and inserting “section 103a(2) of title 41”; and
(v) in paragraph (2), by striking “item” and inserting
“service”.
(7) Section 849(d) of the National Defense Authorization Act for
Fiscal Year 2017 (Public Law 114–328; 10 U.S.C. 2377 note) is
amended—
(A) by striking “commercial items” in paragraph (1) and
inserting “commercial products”;
(B) by striking “commercial item” in paragraph (3)(B)(i) and
inserting “commercial product”; and
(C) by adding at the end the following new paragraph:
“(5) DEFINITION.—In this subsection, the term ‘commercial
product’ has the meaning given that term in section 103 of title
41.”.
(8) Section 856(a)(1) of the National Defense Authorization Act
for Fiscal Year 2016 (Public Law 114–92; 10 U.S.C. 2377 note) is
amended by striking “commercial items or services” and inserting
“a commercial product or a commercial service, as defined in
sections 103 and 103a, respectively, of title 41,”.
(9) Section 879 of the National Defense Authorization Act for
Fiscal Year 2017 (Public Law 114–328; 10 U.S.C. 2302 note) is
amended—
(A) in the section heading, by striking “COMMERCIAL ITEMS” and
inserting “COMMERCIAL PRODUCTS”;
(B) in subsection (a), by striking “commercial items” and
inserting “commercial products”;
(C) in subsection (c)(3)—
(i) by striking “COMMERCIAL ITEMS” in the paragraph heading and
inserting “COMMERCIAL PRODUCTS OR COMMERCIAL SERVICES”; and
(ii) by striking “commercial items” and inserting “commercial
products or commercial services”; and
(D) in subsection (e)(2), by striking “item” in subparagraphs
(A) and (B) and inserting “products”.
(10) Section 880 of the National Defense Authorization Act for
Fiscal Year 2017 (Public Law 114–328; 41 U.S.C. 3301 note) is
amended by striking “commercial items” in subsection (a)(1) and
inserting “commercial products”.
(g) Conforming Amendments To Other Statutes.—
(1) Section 604(g) of the American Recovery and Reinvestment Act
of 2009 (6 U.S.C. 453b(g)) is amended—
(A) by striking “Commercial Items” in the subsection heading and
inserting “Commercial Products”;
(B) by striking “procurement of commercial” in the first
sentence and all that follows through “items listed” and
inserting “procurement of commercial products notwithstanding
section 1906 of title 41, United States Code, with the exception
of commercial products listed”; and
(C) in the second sentence—
(i) by inserting “product” after “commercial”; and
(ii) by striking “in the” and all that follows and inserting “in
section 103 of title 41, United States Code.”.
(2) Section 142 of the Higher Education Act of 1965 (20 U.S.C.
1018a) is amended—
(A) in subsection (e)—
(i) by striking “Commercial Items” in the subsection heading and
inserting “Commercial Products And Commercial Services”;
(ii) by striking “that commercial items” and inserting “that
commercial products or commercial services”;
(iii) by striking “special rules for commercial items” and
inserting “special rules for commercial products and commercial
services”;
(iv) by striking “without regard to—” and all that follows
through “dollar limitation” and inserting “without regard to any
dollar limitation”;
(v) by striking “; and” and inserting a period; and
(vi) by striking paragraph (2);
(B) in subsection (f)—
(i) by striking “Items” in the subsection heading and inserting
“Products And Services”;
(ii) by striking “ITEMS” in the heading of paragraph (2) and
inserting “PRODUCTS AND SERVICES”; and
(iii) by striking “a commercial item” in paragraph (2) and
inserting “a commercial product or a commercial service”;
(C) in subsection (h)—
(i) by striking “Items” in the subsection heading and inserting
“Services”; and
(ii) by striking “commercial items” in paragraph (1) and
inserting “commercial services”; and
(D) in subsection (l)—
(i) by redesignating paragraphs (2), (3), (4), and (5) as
paragraphs (3), (4), (5), and (6), respectively;
(ii) by striking paragraph (1) and inserting the following new
paragraphs:
“(1) COMMERCIAL PRODUCT.—The term ‘commercial product’ has the
meaning given the term in section 103 of title 41, United States
Code.
“(2) COMMERCIAL SERVICE.—The term ‘commercial service’ has the
meaning given the term in section 103a of title 41, United
States Code.”;
(iii) in paragraph (3), as so redesignated, by striking “in
section” and all that follows and inserting “in section 152 of
title 41, United States Code.”;
(iv) in paragraph (5), as so redesignated—
(I) by striking “COMMERCIAL ITEMS” in the paragraph heading and
inserting “COMMERCIAL PRODUCTS AND COMMERCIAL SERVICES”;
(II) by striking “commercial items” and inserting “commercial
products and commercial services”; and
(III) by striking “pursuant to” and all that follows and
inserting “pursuant to sections 1901 and 3305(a) of title 41,
United States Code.”; and
(v) in paragraph (6), as so redesignated, by striking “pursuant
to” and all that follows and inserting “pursuant to sections
1901(a)(1) and 3305(a)(1) of title 41, United States Code.”.
(3) Section 3901(a)(4)(A)(ii)(II) of title 31, United States
Code, is amended by striking “commercial item” and inserting
“commercial product”.
(4) Section 2455(c)(1) of the Federal Acquisition Streamlining
Act of 1994 (31 U.S.C. 6101 note) is amended by striking
“commercial items” and inserting “commercial products”.
(5) Section 508(f) of the Federal Water Pollution Control Act
(33 U.S.C. 1368(f)) is amended—
(A) in paragraph (1), by striking “commercial items” and
inserting “commercial products or commercial services”; and
(B) in paragraph (2), by striking “the term” and all that
follows and inserting “the terms ‘commercial product’ and
‘commercial service’ have the meanings given those terms in
sections 103 and 103a, respectively, of title 41, United States
Code.”.
(6) Section 3707 of title 40, United States Code, is amended by
striking “a commercial item (as defined in section 103 of title
41)” and inserting “a commercial product (as defined in section
103 of title 41) or a commercial service (as defined in section
103a of title 41)”.
(7) Subtitle III of title 40, United States Code, is amended—
(A) in section 11101(1), by striking “COMMERCIAL ITEM.—The term
‘commercial item’ has” and inserting “COMMERCIAL PRODUCT.—The
term ‘commercial product’ has”; and
(B) in section 11314(a)(3), by striking “items” each place it
appears and inserting “products”.
(8) Section 8301(g) of the Federal Acquisition Streamlining Act
of 1994 (42 U.S.C. 7606 note) is amended by striking “commercial
items” and inserting “commercial products or commercial
services”.
(9) Section 40118(f) of title 49, United States Code, is
amended—
(A) in paragraph (1), by striking “commercial items” and
inserting “commercial products”; and
(B) in paragraph (2), by striking “commercial item” and
inserting “commercial product”.
(10) Chapter 501 of title 51, United States Code, is amended—
(A) in section 50113(c)—
(i) by striking “Commercial Item” in the subsection heading and
inserting “Commercial Product Or Commercial Service”; and
(ii) by striking “commercial item” in the second sentence and
inserting “commercial product or commercial service”; and
(B) in section 50115(b)—
(i) by striking “Commercial Item” in the subsection heading and
inserting “Commercial Product Or Commercial Service”; and
(ii) by striking “commercial item” in the second sentence and
inserting “commercial product or commercial service”; and
(C) in section 50132(a)—
(i) by striking “Commercial Item” in the subsection heading and
inserting “Commercial Service”; and
(ii) by striking “commercial item” in the second sentence and
inserting “commercial service”.
(h) Effective Date And Savings Provision.—The amendments made by
subsections (a) through (g) shall take effect on January 1,
2020. Any provision of law that on the day before such effective
date is on a list of provisions of law included in the Federal
Acquisition Regulation pursuant to section 1907 of title 41,
United States Code, shall be deemed as of that effective date to
be on a list of provisions of law included in the Federal
Acquisition Regulation pursuant to section 1906 of such title.
(i) Implementation Plan Required.—Not later than April 1, 2019,
the Under Secretary of Defense for Acquisition and Sustainment,
in coordination with members of the Defense Business Board, the
Defense Science Board, and the Defense Innovation Board as
appropriate, shall submit to the Committees on Armed Services of
the Senate and the House of Representatives an implementation
plan that contains the following elements:
(1) An implementation timeline and schedule, to include
substantive, technical, and conforming changes to the law that
the Under Secretary deems appropriate and necessary, to include
revising definitions or categories of items, products, and
services.
(2) A review of recommendations by the independent panel created
under section 809 of the National Defense Authorization Act for
Fiscal Year 2016 (Public Law 114–92; 129 Stat. 889) pertaining
to commercial items.
(3) A review of commercial item provisions from the National
Defense Authorization Act for Fiscal Year 2016 (Public Law
114–92), the National Defense Authorization Act for Fiscal Year
2017 (Public Law 114–328), the National Defense Authorization
Act for Fiscal Year 2018 (Public Law 115–91), and other relevant
legislation.
(4) An analysis of the extent to which the Department of Defense
should treat commercial service contracts and commercial
products in a similar manner.
(5) Such other matters with respect to commercial item
procurement as the Under Secretary considers appropriate.
|
Revision of definition of commercial
item for purposes of Federal acquisition statutes (sec. 836)
The House bill contained a provision
(sec. 831) that would clarify the definition of commercial
items. Specifically, it would clarify commercial items as
commercial products or commercial services.
The Senate amendment contained a similar
provision (sec. 851) that would direct the Assistant Secretary
of Defense for Acquisition to conduct a review of commercial
item procurement reform, including recommendations by the
independent panel created by Section 809 of the National Defense
Authorization Act for Fiscal Year 2016 (Public Law 114–92) and
provisions from recent National Defense Authorization Acts, and
an analysis of the treatment of commercial services contracts as
compared to commercial products.
The Senate recedes with an amendment
that would set the effective date of the new definitions to
January 1, 2020 with a detailed implementation plan due to the
congressional defense committees on April 1, 2019.
H. Rept. 115-676
Section 831--Revision of Definition
of Commercial Item for Purposes of Federal Acquisition Statutes
This section would clarify the
definition of commercial items. Specifically, it would clarify
commercial items as commercial products or commercial services.
The committee notes the current
definition of commercial items throughout the United States Code
is inconsistent, with 40 disparate definitions of commercial
items. Additionally, commercial item definitions do not
appropriately take into account the differences between products
and services. The separation of the definition of commercial
items into commercial products and commercial services would
simplify and streamline procurement. Consistency in application
of definitions would assist the acquisition workforce as well as
businesses seeking to participate in the defense sector. |
