41 U.S.C. § 104 — Commercially available off-the-shelf item

Page 6 TITLE 41—PUBLIC CONTRACTS § 103a (A) is of a type customarily used by the general public or by nongovernmental enti- ties for purposes other than governmental purposes; and (B) has been sold, leased, or licensed, or of- fered for sale, lease, or license, to the gen- eral public. (2) A product that— (A) evolved from a product described in paragraph (1) through advances in tech- nology 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 prod- ucts, is transferred between or among separate divisions, subsidiaries, or affiliates of a con- tractor. (6) A nondevelopmental item if the pro- curing agency determines, in accordance with conditions in the Federal Acquisition Regula- tion, 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. (Added Pub. L. 115–232, div. A, title VIII, § 836(a)(1), Aug. 13, 2018, 132 Stat. 1859.) Editorial Notes PRIOR PROVISIONS A prior section 103, Pub. L. 111–350, § 3, Jan. 4, 2011, 124 Stat. 3679; Pub. L. 115–91, div. A, title VIII, § 847(a), Dec. 12, 2017, 131 Stat. 1487, defined term ‘‘commercial item’’, prior to repeal by Pub. L. 115–232, div. A, title VIII, § 836(a)(1), Aug. 13, 2018, 132 Stat. 1859, effective Jan. 1, 2020. See Effective Date note below. Statutory Notes and Related Subsidiaries EFFECTIVE DATE Section effective, and repeal of former section 103 ef- fective, on Jan. 1, 2020, subject to a savings provision, see section 836(h) of Pub. L. 115–232, set out as an Effec- tive Date of 2018 Amendment; Savings Provision note under section 453b of Title 6, Domestic Security. § 103a. Commercial service In this subtitle, the term ‘‘commercial serv- ice’’ means any of the following: (1) Installation services, maintenance serv- ices, 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 com- mercial 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 Gov- ernment; (2) Services of a type offered and sold com- petitively, 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. (Added Pub. L. 115–232, div. A, title VIII, § 836(a)(1), Aug. 13, 2018, 132 Stat. 1860.) Statutory Notes and Related Subsidiaries EFFECTIVE DATE Section effective Jan. 1, 2020, subject to a savings pro- vision, see section 836(h) of Pub. L. 115–232, set out as an Effective Date of 2018 Amendment; Savings Provi- sion note under section 453b of Title 6, Domestic Secu- rity. § 104. Commercially available off-the-shelf item In this subtitle, the term ‘‘commercially available off-the-shelf item’’— (1) means an item that— (A) is a commercial product (as described in section 103(1) of this title); (B) is sold in substantial quantities in the commercial marketplace; and (C) is offered to the Federal Government, without modification, in the same form in which it is sold in the commercial market- place; but (2) does not include bulk cargo, as defined in section 40102(4) of title 46, such as agricultural products and petroleum products. (Pub. L. 111–350, § 3, Jan. 4, 2011, 124 Stat. 3679; Pub. L. 115–232, div. A, title VIII, § 836(a)(2)(B), Aug. 13, 2018, 132 Stat. 1860; Pub. L. 116–283, div. A, title X, § 1081(d)(4)(A), Jan. 1, 2021, 134 Stat. 3874.) HISTORICAL AND REVISION NOTES Revised Section Source (U.S. Code) Source (Statutes at Large) 104 ............. 41:431(c). Pub. L. 93–400, § 35(c), as added Pub. L. 104–106, title XLII, § 4203(a), Feb. 10, 1996, 110 Stat. 655. In paragraph (2), the words ‘‘section 40102(4) of title 46’’ are substituted for ‘‘section 3 of the Shipping Act of 1984 (46 U.S.C. App. 1702)’’ because of section 18(c) of Public Law 109–304 (46 U.S.C. note prec. 101). Page 7 TITLE 41—PUBLIC CONTRACTS § 109 Editorial Notes AMENDMENTS 2021—Par. (1)(A). Pub. L. 116–283, § 1081(d)(4)(A), made technical correction to directory language of Pub. L. 115–232, § 836(a)(2)(B). See 2018 Amendment note below. 2018—Par. (1)(A). Pub. L. 115–232, as amended by Pub. L. 116–283, § 1081(d)(4)(A), substituted ‘‘commercial prod- uct’’ for ‘‘commercial item’’. Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 2021 AMENDMENT Pub. L. 116–283, div. A, title X, § 1081(d), Jan. 1, 2021, 134 Stat. 3873, provided that the amendment made by section 1081(d)(4)(A) to section 836(a)(2)(B) of Pub. L. 115–232, which amended this section, is effective as of Aug. 13, 2018, and as if included in Pub. L. 115–232. EFFECTIVE DATE OF 2018 AMENDMENT Amendment by Pub. L. 115–232 effective Jan. 1, 2020, subject to a savings provision, see section 836(h) of Pub. L. 115–232, set out as an Effective Date of 2018 Amend- ment; Savings Provision note under section 453b of Title 6, Domestic Security. § 105. Component In this subtitle, the term ‘‘component’’ means an item supplied to the Federal Government as part of an end item or of another component. (Pub. L. 111–350, § 3, Jan. 4, 2011, 124 Stat. 3680.) HISTORICAL AND REVISION NOTES Revised Section Source (U.S. Code) Source (Statutes at Large) 105 ............. 41:259(c)(14). June 30, 1949, ch. 288, title III, § 309(c)(14), as added Pub. L. 98–369, title VII, § 2711(a)(3), July 18, 1984, 98 Stat. 1180; Pub. L. 98–577, title V, § 504(a)(4), Oct. 30, 1984, 98 Stat. 3086; Pub. L. 103–355, title I, § 1551, Oct. 13, 1994, 108 Stat. 3299. 41:264a (‘‘compo- nent’’). June 30, 1949, ch. 288, title III, § 314A (‘‘component’’), as added Pub. L. 103–355, title VIII, § 8202, Oct. 13, 1994, 108 Stat. 3394. 41:403(14). Pub. L. 93–400, § 4(14), as added Pub. L. 103–355, title VIII, § 8001(a), Oct. 13, 1994, 108 Stat. 3386. § 106. Federal Acquisition Regulation In this subtitle, the term ‘‘Federal Acquisition Regulation’’ means the regulation issued under section 1303(a)(1) of this title. (Pub. L. 111–350, § 3, Jan. 4, 2011, 124 Stat. 3680.) HISTORICAL AND REVISION NOTES Revised Section Source (U.S. Code) Source (Statutes at Large) 106 ............. 41:259(e). June 30, 1949, ch. 288, title III, § 309(e), as added Pub. L. 103–355, title I, § 1551, Oct. 13, 1994, 108 Stat. 3299. The defined term is made applicable to the subtitle because of the numerous references throughout the Of- fice of Federal Procurement Policy Act (Public Law 93–400, 88 Stat. 796), restated in division B of this sub- title, and especially because of sections 6(a) and 25(c) of the Act, restated in sections 1121 and 1303, respectively. § 107. Full and open competition In this subtitle, the term ‘‘full and open com- petition’’, when used with respect to a procure- ment, means that all responsible sources are permitted to submit sealed bids or competitive proposals on the procurement. (Pub. L. 111–350, § 3, Jan. 4, 2011, 124 Stat. 3680.) HISTORICAL AND REVISION NOTES Revised Section Source (U.S. Code) Source (Statutes at Large) 107 ............. 41:259(c)(4). June 30, 1949, ch. 288, title III, § 309(c)(4), as added Pub. L. 98–369, title VII, § 2711(a)(3), July 18, 1984, 98 Stat. 1180; Pub. L. 98–577, title V, § 504(a)(4), Oct. 30, 1984, 98 Stat. 3086; Pub. L. 103–355, title I, § 1551, Oct. 13, 1994, 108 Stat. 3299. 41:403(6). Pub. L. 93–400, § 4(6), for- merly § 4(7), as added Pub. L. 98–369, title VII, § 2731(3), July 18, 1984, 98 Stat. 1195; Pub. L. 98–577, title I, § 102(1), Oct. 30, 1984, 98 Stat. 3067; redesig- nated as § 4(6), Pub. L. 100–679, § 3(c), Nov. 17, 1988, 102 Stat. 4056; Pub. L. 103–355, title VIII, § 8001(b)(1)–(3), Oct. 13, 1994, 108 Stat. 3386. § 108. Item and item of supply In this subtitle, the terms ‘‘item’’ and ‘‘item of supply’’— (1) mean an individual part, component, sub- assembly, assembly, or subsystem integral to a major system, and other property which may be replaced during the service life of the sys- tem, including spare parts and replenishment spare parts; but (2) do not include packaging or labeling as- sociated with shipment or identification of an item. (Pub. L. 111–350, § 3, Jan. 4, 2011, 124 Stat. 3680.) HISTORICAL AND REVISION NOTES Revised Section Source (U.S. Code) Source (Statutes at Large) 108 ............. 41:259(c)(8), (9). June 30, 1949, ch. 288, title III, § 309(c)(8), (9), as added Pub. L. 98–369, title VII, § 2711(a)(3), July 18, 1984, 98 Stat. 1180; Pub. L. 98–577, title V, § 504(a)(4), Oct. 30, 1984, 98 Stat. 3086; Pub. L. 103–355, title I, § 1551, Oct. 13, 1994, 108 Stat. 3299. 41:403(10) (‘‘item’’, ‘‘item of supply’’). Pub. L. 93–400, § 4(10) (‘‘item’’, ‘‘item of sup- ply’’), formerly § 4(11), as added Pub. L. 98–577, title I, § 102(3), Oct. 30, 1984, 98 Stat. 3067; redesignated as § 4(10), Pub. L. 100–679, § 3(c), Nov. 17, 1988, 102 Stat. 4056; Pub. L. 103–355, title VIII, § 8001(b)(1), (2), (4), Oct. 13, 1994, 108 Stat. 3386. § 109. Major system (a) IN GENERAL.—In this subtitle, the term ‘‘major system’’ means a combination of ele- ments that will function together to produce the capabilities required to fulfill a mission need. These elements may include hardware, equip- ment, software, or a combination of hardware, equipment, and software, but do not include construction or other improvements to real property. (b) SYSTEM DEEMED TO BE MAJOR SYSTEM.—A system is deemed to be a major system if—