10 U.S.C. § 3455 — Procurement of a major weapon system as

Page 2491 TITLE 10—ARMED FORCES § 3455 of the National Defense Authorization Act for Fiscal Year 2016 (Public Law 114–92; 10 U.S.C. 2377 note) to pro- vide that— ‘‘(1) 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 engineer- ing 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 Sec- retary of Defense for Acquisition and Sustainment (as applicable) determines in writing that no com- mercial 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 ‘‘(2) the head of an agency may not enter into a contract in an amount above the simplified acquisi- tion threshold and below $10,000,000 for facilities-re- lated services, knowledge-based services (except engi- neering services), construction services, medical serv- ices, or transportation services that are not commer- cial services unless the contracting officer deter- mines 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)].’’ INCORPORATION INTO MANAGEMENT CERTIFICATION TRAINING MANDATE Pub. L. 114–92, div. A, title VIII, § 844(b), Nov. 25, 2015, 129 Stat. 915, provided that: ‘‘The Chairman of the Joint Chiefs of Staff shall ensure that the requirements of section 2377(d) of title 10, United States Code [now 10 U.S.C. 3453(e)], as added by subsection (a), are incor- porated into the requirements management certifi- cation training mandate of the Joint Capabilities Inte- gration Development System.’’ MARKET RESEARCH AND PREFERENCE FOR COMMERCIAL ITEMS Pub. L. 114–92, div. A, title VIII, § 855, Nov. 25, 2015, 129 Stat. 919, as amended by Pub. L. 116–92, div. A, title IX, § 902(60), Dec. 20, 2019, 133 Stat. 1550, provided that: ‘‘(a) GUIDANCE REQUIRED.—Not later than 90 days after the date of the enactment of this Act [Nov. 25, 2015], the Under Secretary of Defense for Acquisition and Sustainment shall issue guidance to ensure that acquisition officials of the Department of Defense fully comply with the requirements of section 2377 of title 10, United States Code [now 10 U.S.C. 3453], regarding mar- ket research and commercial items. The guidance issued pursuant to this subsection shall, at a min- imum— ‘‘(1) provide that the head of an agency may not enter into a contract in excess of the simplified ac- quisition threshold for information technology prod- ucts 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 ‘‘(2) ensure that market research conducted in ac- cordance with subsection (c) of such section is used, where appropriate, to inform price reasonableness de- terminations. ‘‘(b) REVIEW REQUIRED.—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 De- fense for Acquisition and Sustainment, shall review Chairman of the Joint Chiefs of Staff Instruction 3170.01, the Manual for the Operation of the Joint Capa- bilities Integration and Development System, and other documents governing the requirements develop- ment process and revise these documents as necessary to ensure that the Department of Defense fully com- plies 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. ‘‘(c) MARKET RESEARCH DEFINED.—For the purposes of this section, the term ‘market research’ means a re- view of existing systems, subsystems, capabilities, and technologies that are available or could be made avail- able 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 Regula- tion and shall include, at a minimum, contacting knowledgeable individuals in Government and industry regarding existing market capabilities.’’ COMMERCIAL SOFTWARE REUSE PREFERENCE Pub. L. 110–417, [div. A], title VIII, § 803, Oct. 14, 2008, 122 Stat. 4519, provided that: ‘‘(a) IN GENERAL.—The Secretary of Defense shall en- sure that contracting officials identify and evaluate, at all stages of the acquisition process (including concept refinement, concept decision, and technology develop- ment), opportunities for the use of commercial com- puter software and other non-developmental software. ‘‘(b) REPORT.—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), includ- ing a description of any relevant regulations and policy guidance.’’ REQUIREMENT TO DEVELOP TRAINING AND TOOLS Pub. L. 110–181, div. A, title VIII, § 826(b), Jan. 28, 2008, 122 Stat. 228, provided that: ‘‘The Secretary of Defense shall develop training to assist contracting officers, and market research tools to assist such officers and prime contractors, in performing appropriate market research as required by subsection (c) of section 2377 of title 10, United States Code [now 10 U.S.C. 3453(c)], as amended by this section.’’ § 3455. Procurement of a major weapon system as a commercial product: requirement for prior determination by Secretary of Defense and notification to Congress (a) REQUIREMENT FOR DETERMINATION AND NO- TIFICATION.—A major weapon system of the De- partment of Defense may be treated as a com- mercial product, or purchased under procedures established for the procurement of commercial products, only if— (1) the Secretary of Defense determines that— (A) the major weapon system is a commer- cial product; and (B) such treatment is necessary to meet national security objectives; and (2) the congressional defense committees are notified at least 30 days before such treatment or purchase occurs. (b) TREATMENT OF SUBSYSTEMS AS COMMERCIAL PRODUCTS.—(1) A subsystem of a major weapon system (other than a commercially available off-the-shelf item as defined in section 104 of title 41) shall be treated as a commercial prod- uct and purchased under procedures established for the procurement of commercial products if either— (A) the subsystem is intended for a major weapon system that is being purchased, or has been purchased, under procedures established Page 2492 TITLE 10—ARMED FORCES § 3455 for the procurement of commercial products in accordance with the requirements of sub- section (a); or (B) the contracting officer determines in writing that the subsystem is a commercial product. (2)(A) For a subsystem proposed as commer- cial (as defined in section 103(1) of title 41) and that has not been previously determined com- mercial in accordance with section 3703(d) of this title, the offeror shall— (i) identify the comparable commercial prod- uct the offeror sells to the general public or nongovernmental entities that serves as the basis for the ‘‘of a type’’ assertion; (ii) submit to the contracting officer a com- parison necessary to serve as the basis of the ‘‘of a type’’ assertion of the physical charac- teristics and functionality between the sub- system and the comparable commercial prod- uct identified under clause (i); and (iii) provide to the contracting officer the National Stock Number for both the com- parable commercial product identified under clause (i), if one is assigned, and the sub- system, if one is assigned. (B) If the offeror does not sell a comparable commercial product to the general public or nongovernmental entities for purposes other than governmental purposes that can serve as the basis for an ‘‘of a type’’ assertion with re- spect to the subsystem— (i) the offeror shall— (I) notify the contracting officer in writing that it does not so sell such a comparable commercial product; and (II) provide to the contracting officer a comparison necessary to serve as the basis of the ‘‘of a type’’ assertion of the physical characteristics and functionality between the subsystem and the most comparable commercial product in the commercial mar- ketplace, to the extent reasonably known by the offeror; and (ii) subparagraph (A) shall not apply with re- spect to the offeror for such subsystem. (c) TREATMENT OF COMPONENTS AND SPARE PARTS AS COMMERCIAL PRODUCTS.—(1) A compo- nent or spare part for a major weapon system (other than a commercially available off-the- shelf item as defined in section 104 of title 41) may be treated as a commercial product for the purposes of chapter 271 of this title if either— (A) the component or spare part is intended for— (i) a major weapon system that is being purchased, or has been purchased, under pro- cedures established for the procurement of commercial products in accordance with the requirements of subsection (a); or (ii) a subsystem of a major weapon system that is being purchased, or has been pur- chased, under procedures established for the procurement of commercial products in ac- cordance with the requirements of sub- section (b); or (B) the contracting officer determines in writing that the component or spare part is a commercial product. (2)(A) For a component or spare part proposed as commercial (as defined in section 103(1) of title 41) and that has not previously been deter- mined commercial in accordance with section 3703(d) of this title, the offeror shall— (i) identify the comparable commercial prod- uct the offeror sells to the general public or nongovernmental entities that serves as the basis for the ‘‘of a type’’ assertion; (ii) submit to the contracting officer a com- parison necessary to serve as the basis of the ‘‘of a type’’ assertion of the physical charac- teristics and functionality between the compo- nent or spare part and the comparable com- mercial product identified under clause (i); and (iii) provide to the contracting officer the National Stock Number for both the com- parable commercial product identified under clause (i), if one is assigned, and the compo- nent or spare part, if one is assigned. (B) If the offeror does not sell a comparable commercial product to the general public or nongovernmental entities for purposes other than governmental purposes that can serve as the basis for an ‘‘of a type’’ assertion with re- spect to the component or spare part— (i) the offeror shall— (I) notify the contracting officer in writing that it does not so sell such a comparable commercial product; and (II) provide to the contracting officer a comparison necessary to serve as the basis of the ‘‘of a type’’ assertion of the physical characteristics and functionality between the component or spare part and the most comparable commercial product in the com- mercial marketplace, to the extent reason- ably known by the offeror; and (ii) subparagraph (A) shall not apply with re- spect to the offeror for such component or spare part. (d) INFORMATION SUBMITTED FOR PROCURE- MENTS THAT ARE NOT COVERED BY THE EXCEP- TIONS IN SECTION 3703(A)(1) OF THIS TITLE.—(1) To the extent necessary to determine the reason- ableness of the price for items acquired under this section, the offeror shall, in accordance with paragraph (4), submit to the contracting of- ficer or provide the contracting officer access to— (A) a representative sample, as determined by the contracting officer, of the prices paid for the same or similar commercial products under comparable terms and conditions by both Government and commercial customers, and the terms and conditions of such sales; (B) if the contracting officer determines that the offeror does not have access to and cannot provide sufficient information described in subparagraph (A) to determine the reasonable- ness of price, a representative sample, as de- termined by the contracting officer, of the prices paid for the same or similar commercial products sold under different terms and condi- tions, and the terms and conditions of such sales; and (C) only if the contracting officer determines that the information submitted pursuant to subparagraphs (A) and (B) is not sufficient to Page 2493 TITLE 10—ARMED FORCES § 3455 1 See References in Text note below. determine the reasonableness of price because either the comparable commercial products provided by the offeror are not a valid basis for a price analysis or the contracting officer determines the proposed price is not reason- able after evaluating sales data, and the con- tracting officer receives the approval de- scribed in paragraph (5), other relevant infor- mation regarding the basis for price or cost, including information on labor costs, material costs, and overhead rates. (2) An offeror may submit information or anal- ysis relating to the value of a commercial prod- uct to aid in the determination of the reason- ableness of the price of such item. A contracting officer may consider such information or anal- ysis in addition to the information submitted pursuant to paragraphs (1)(A) and (1)(B). (3) An offeror may not be required to submit information described in paragraph (1)(C) with regard to a commercially available off-the-shelf item and may be required to submit such infor- mation with regard to any other item that was developed exclusively at private expense only after the head of the contracting activity deter- mines in writing that the information submitted pursuant to paragraphs (1)(A) and (1)(B) is not sufficient to determine the reasonableness of price. (4)(A) An offeror may redact data information submitted or made available under subpara- graph (A) or (B) of paragraph (1) with respect to sales of an item acquired under this section only to the extent necessary to remove information individually identifying government customers, commercial customers purchasing such item for governmental purposes, and commercial cus- tomers purchasing such item for commercial, mixed, or unknown purposes. (B) Before an offeror may exercise the author- ity under subparagraph (A) with respect to a customer, the offeror shall certify in writing to the contracting officer whether the customer is a government customer, a commercial customer purchasing the item for governmental purpose, or a commercial customer purchasing the item for a commercial, mixed, or unknown purpose. (5) A contracting officer may not require an offeror to submit or make available information under paragraph (1)(C) without approval from a level above the contracting officer. (6) Nothing in this subsection shall relieve an offeror of other obligations under any other law or regulation to disclose and support the actual rationale of the offeror for the price proposed by the offeror to the Government for any good or service. (e) DELEGATION.—The authority of the Sec- retary of Defense to make a determination under subsection (a) may be delegated only to the Deputy Secretary of Defense, without fur- ther redelegation. (f) MAJOR WEAPON SYSTEM DEFINED.—In this section, the term ‘‘major weapon system’’ means a weapon system acquired pursuant to a major defense acquisition program (as that term is defined in section 2430 1 of this title). (g) APPLICABILITY.— (1) IN GENERAL.—Subsections (b) and (c) shall apply only with respect to subsystems de- scribed in subsection (b) and components or spare parts described in subsection (c), respec- tively, that the Department of Defense ac- quires through— (A) a prime contract; (B) a modification to a prime contract; or (C) a subcontract described in paragraph (2). (2) SUBCONTRACT DESCRIBED.—A subcontract described in this paragraph is a subcontract through which the Department of Defense ac- quires a subsystem or component or spare part proposed as commercial (as defined in section 103(1) of title 41) under this section and that has not previously been determined commer- cial in accordance with section 3703(d). (Added Pub. L. 109–163, div. A, title VIII, § 803(a)(1), Jan. 6, 2006, 119 Stat. 3370, § 2379; amended Pub. L. 110–181, div. A, title VIII, § 815(a)(1), Jan. 28, 2008, 122 Stat. 222; Pub. L. 113–291, div. A, title X, § 1071(a)(7), Dec. 19, 2014, 128 Stat. 3504; Pub. L. 114–92, div. A, title VIII, § 852(a)–(d), Nov. 25, 2015, 129 Stat. 917, 918; Pub. L. 114–328, div. A, title VIII, § 872, Dec. 23, 2016, 130 Stat. 2307; Pub. L. 115–232, div. A, title VIII, § 836(d)(4), (8)(D), Aug. 13, 2018, 132 Stat. 1868, 1869; renumbered § 3455 and amended Pub. L. 116–283, div. A, title XVIII, §§ 1821(a)(2), (b)(4), 1831(j)(4), 1883(b)(2), Jan. 1, 2021, 134 Stat. 4195, 4217, 4294; Pub. L. 117–81, div. A, title XVII, § 1701(b)(10)(i)(ii), Dec. 27, 2021, 135 Stat. 2134; Pub. L. 117–263, div. A, title VIII, § 803, Dec. 23, 2022, 136 Stat. 2693.) Editorial Notes REFERENCES IN TEXT Section 2430 of this title, referred to in subsec. (f), was transferred to sections 4201, 4202, and 4204 of this title by Pub. L. 116–283, div. A, title XVIII, § 1846(c)(1), (d)(1), (f)(1), Jan. 1, 2021, 134 Stat. 4248–4250. Section 4201 of this title defines ‘‘major defense acquisition pro- gram’’. AMENDMENTS 2022—Subsec. (b). Pub. L. 117–263, § 803(a), designated existing provisions as par. (1), redesignated former pars. (1) and (2) as subpars. (A) and (B), respectively, of par. (1), and added par. (2). Subsec. (c)(2). Pub. L. 117–263, § 803(b), amended par. (2) generally. Prior to amendment, par. (2) read as fol- lows: ‘‘This subsection shall apply only to components and spare parts that are acquired by the Department of Defense through a prime contract or a modification to a prime contract (or through a subcontract under a prime contract or modification to a prime contract on which the prime contractor adds no, or negligible, value).’’ Subsec. (d). Pub. L. 117–263, § 803(c)(1), inserted ‘‘FOR PROCUREMENTS THAT ARE NOT COVERED BY THE EXCEP- TIONS IN SECTION 3703(A)(1) OF THIS TITLE’’ after ‘‘SUB- MITTED’’ in heading. Subsec. (d)(1). Pub. L. 117–263, § 803(c)(2)(A), in intro- ductory provisions, substituted ‘‘the offeror shall, in accordance with paragraph (4), submit to the con- tracting officer or provide the contracting officer ac- cess to—’’ for ‘‘the contracting officer shall require the offeror to submit—’’. Subsec. (d)(1)(A). Pub. L. 117–263, § 803(c)(2)(B), in- serted ‘‘a representative sample, as determined by the contracting officer, of the’’ before ‘‘prices paid’’ and ‘‘, and the terms and conditions of such sales’’ before semicolon at end. Page 2494 TITLE 10—ARMED FORCES § 3455 Subsec. (d)(1)(B). Pub. L. 117–263, § 803(c)(2)(C), sub- stituted ‘‘a representative sample, as determined by the contracting officer, of the prices paid for the same or similar commercial products sold under different terms and conditions, and the terms and conditions of such sales; and’’ for ‘‘information on— ‘‘(i) prices for the same or similar items sold under different terms and conditions; ‘‘(ii) prices for similar levels of work or effort on re- lated products or services; ‘‘(iii) prices for alternative solutions or approaches; and ‘‘(iv) other relevant information that can serve as the basis for a price assessment; and’’. Subsec. (d)(1)(C). Pub. L. 117–263, § 803(c)(2)(D), in- serted ‘‘only’’ before ‘‘if the contracting officer’’ and ‘‘because either the comparable commercial products provided by the offeror are not a valid basis for a price analysis or the contracting officer determines the pro- posed price is not reasonable after evaluating sales data, and the contracting officer receives the approval described in paragraph (5)’’ after ‘‘reasonableness of price’’. Subsec. (d)(4) to (6). Pub. L. 117–263, § 803(c)(3), added pars. (4) to (6). Subsec. (g). Pub. L. 117–263, § 803(d), added subsec. (g). 2021—Pub. L. 116–283, § 1821(a)(2), renumbered section 2379 of this title as this section. Subsec. (c)(1). Pub. L. 116–283, § 1831(j)(4), which di- rected amendment of this section by substituting ‘‘sec- tions 3701–3708’’ for ‘‘section 2306a’’ and could not be ex- ecuted, was repealed by Pub. L. 117–81, § 1701(b)(10)(I)(ii). Pub. L. 116–283, § 1821(b)(4), substituted ‘‘chapter 271’’ for ‘‘section 2306a’’ in introductory provisions. Subsec. (f). Pub. L. 116–283, § 1883(b)(2), which directed that each reference in the text of title 10 to a section that was redesignated by title XVIII of Pub. L. 116–283, as such section was in effect before the redesignation, be amended by striking such reference and inserting a reference to the appropriate redesignated section, was not executed with respect to ‘‘section 2430’’, which was redesignated as multiple sections. 2018—Pub. L. 115–232, § 836(d)(8)(D), substituted ‘‘Pro- curement of a major weapon system as a commercial product: requirement for prior determination by Sec- retary of Defense and notification to Congress’’ for ‘‘Requirement for determination by Secretary of De- fense and notification to Congress before procurement of major weapon systems as commercial items’’ in sec- tion catchline. Pub. L. 115–232, § 836(d)(4)(C), substituted ‘‘commercial product’’ for ‘‘commercial item’’ and ‘‘commercial products’’ for ‘‘commercial items’’ wherever appearing. Subsec. (a)(1)(A). Pub. L. 115–232, § 836(d)(4)(B), struck out ‘‘, as defined in section 103 of title 41’’ before ‘‘; and’’. Subsec. (b). Pub. L. 115–232, § 836(d)(4)(A), substituted ‘‘Commercial Products’’ for ‘‘Commercial Items’’ in heading. Subsec. (b)(2). Pub. L. 115–232, § 836(d)(4)(B), struck out ‘‘, as defined in section 103 of title 41’’ before pe- riod. Subsec. (c). Pub. L. 115–232, § 836(d)(4)(A), substituted ‘‘Commercial Products’’ for ‘‘Commercial Items’’ in heading. Subsec. (c)(1)(B). Pub. L. 115–232, § 836(d)(4)(B), struck out ‘‘, as defined in section 103 of title 41’’ before pe- riod. 2016—Subsec. (d)(2), (3). Pub. L. 114–328 added par. (2) and redesignated former par. (2) as (3). 2015—Subsec. (a). Pub. L. 114–92, § 852(a), inserted ‘‘and’’ at end of par. (1)(B), redesignated par. (3) as (2), and struck out former par. (2) which read as follows: ‘‘the offeror has submitted sufficient information to evaluate, through price analysis, the reasonableness of the price for such system; and’’. Subsec. (b). Pub. L. 114–92, § 852(b)(1), substituted ‘‘if either’’ for ‘‘only if’’ in introductory provisions. Subsec. (b)(2). Pub. L. 114–92, § 852(b)(2), substituted ‘‘writing that’’ for ‘‘writing that—’’, struck out subpar. (A) designation before ‘‘the subsystem is a’’, sub- stituted ‘‘title 41.’’ for ‘‘title 41; and’’, and struck out subpar. (B) which read as follows: ‘‘the offeror has sub- mitted sufficient information to evaluate, through price analysis, the reasonableness of the price for such subsystem.’’ Subsec. (c)(1). Pub. L. 114–92, § 852(c)(1), substituted ‘‘title if either’’ for ‘‘title only if’’ in introductory pro- visions. Subsec. (c)(1)(B). Pub. L. 114–92, § 852(c)(2), substituted ‘‘writing that’’ for ‘‘writing that—’’, struck out cl. (i) designation before ‘‘the component or’’, substituted ‘‘title 41.’’ for ‘‘title 41; and’’, and struck out cl. (ii) which read as follows: ‘‘the offeror has submitted suffi- cient information to evaluate, through price analysis, the reasonableness of the price for such component or spare part.’’ Subsec. (d). Pub. L. 114–92, § 852(d), amended subsec. (d) generally. Prior to amendment, text read as follows: ‘‘To the extent necessary to make a determination under subsection (a)(2), (b)(2), or (c)(1)(B), the con- tracting officer may request the offeror to submit— ‘‘(1) prices paid for the same or similar commercial items under comparable terms and conditions by both government and commercial customers; and ‘‘(2) if the contracting officer determines that the information described in paragraph (1) is not suffi- cient to determine the reasonableness of price, other relevant information regarding the basis for price or cost, including information on labor costs, material costs, and overhead rates.’’ 2014—Subsec. (a)(1)(A). Pub. L. 113–291, § 1071(a)(7)(A), substituted ‘‘section 103 of title 41’’ for ‘‘section 4(12) of the Office of Federal Procurement Policy Act (41 U.S.C. 403(12))’’. Subsec. (b). Pub. L. 113–291, § 1071(a)(7)(B), substituted ‘‘section 104 of title 41’’ for ‘‘section 35(c) of the Office of Federal Procurement Policy Act (41 U.S.C. 431(c))’’ in introductory provisions. Subsec. (b)(2)(A). Pub. L. 113–291, § 1071(a)(7)(A), sub- stituted ‘‘section 103 of title 41’’ for ‘‘section 4(12) of the Office of Federal Procurement Policy Act (41 U.S.C. 403(12))’’. Subsec. (c)(1). Pub. L. 113–291, § 1071(a)(7)(B), sub- stituted ‘‘section 104 of title 41’’ for ‘‘section 35(c) of the Office of Federal Procurement Policy Act (41 U.S.C. 431(c))’’ in introductory provisions. Subsec. (c)(1)(B)(i). Pub. L. 113–291, § 1071(a)(7)(A), sub- stituted ‘‘section 103 of title 41’’ for ‘‘section 4(12) of the Office of Federal Procurement Policy Act (41 U.S.C. 403(12))’’. 2008—Subsec. (a)(2), (3). Pub. L. 110–181, § 815(a)(1)(A), added par. (2) and redesignated former par. (2) as (3). Subsec. (b). Pub. L. 110–181, § 815(a)(1)(B), added sub- sec. (b) and struck out former subsec. (b). Former text read as follows: ‘‘A subsystem or component of a major weapon system shall be treated as a commercial item and purchased under procedures established for the pro- curement of commercial items if such subsystem or component otherwise meets the requirements (other than requirements under subsection (a)) for treatment as a commercial item.’’ Subsecs. (c) to (f). Pub. L. 110–181, § 815(a)(1)(C), (D), added subsecs. (c) and (d) and redesignated former sub- secs. (c) and (d) as (e) and (f), respectively. Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 2021 AMENDMENT Amendment by Pub. L. 117–81 applicable as if in- cluded in the enactment of title XVIII of Pub. L. 116–283 as enacted, see section 1701(a)(2) of Pub. L. 117–81, set out in a note preceding section 3001 of this title and note below. Amendment by Pub. L. 116–283 effective Jan. 1, 2022, with additional provisions for delayed implementation and applicability of existing law, see section 1801(d) of Pub. L. 116–283, set out as a note preceding section 3001 of this title. Page 2495 TITLE 10—ARMED FORCES § 3456 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. EFFECTIVE DATE Pub. L. 109–163, div. A, title VIII, § 803(b), Jan. 6, 2006, 119 Stat. 3371, provided that: ‘‘The amendments made by subsection (a) [enacting this section] shall take ef- fect on the date of the enactment of this Act [Jan. 6, 2006], and shall apply to contracts entered into on or after such date.’’ § 3456. Commercial product and commercial service determinations by Department of De- fense (a) IN GENERAL.—The Secretary of Defense shall— (1) establish and maintain a centralized ca- pability with necessary expertise and re- sources to provide assistance to the military departments and Defense Agencies in making commercial product and commercial service determinations, conducting market research, and performing analysis of price reasonable- ness for the purposes of procurements by the Department of Defense; and (2) provide to officials of the Department of Defense access to previous Department of De- fense commercial product and commercial service determinations, market research, and analysis used to determine the reasonableness of price for the purposes of procurements by the Department of Defense. (b) DETERMINATIONS REGARDING THE COMMER- CIAL NATURE OF PRODUCTS OR SERVICES.— (1) IN GENERAL.—In making a determination whether a particular product or service offered by a contractor meets the definition of a com- mercial product or commercial service, a con- tracting officer of the Department of Defense may— (A) request support from the Director of the Defense Contract Management Agency, the Director of the Defense Contract Audit Agency, or other appropriate experts in the Department to make a determination whether a product or service is a commercial product or commercial service; and (B) consider the views of appropriate pub- lic and private sector entities. (2) MEMORANDUM.—Within 30 days after a contract award, the contracting officer shall, consistent with the policies and regulations of the Department, submit a written memo- randum summarizing the determination re- ferred to in paragraph (1), including a detailed justification why the product or service was determined to be commercial or noncommer- cial. Upon the request of the contractor or subcontractor offering the product or service for which such determination is summarized in such memorandum, the contracting officer shall provide to such contractor or subcon- tractor a copy of such memorandum. (c) ITEMS PREVIOUSLY ACQUIRED USING COM- MERCIAL ACQUISITION PROCEDURES.— (1) DETERMINATIONS.—A contract or sub- contract for a product (including a product without a part number or a product with a prior part number that has the same functionality as the product had with the prior part number) or service acquired using commercial acquisition procedures under part 12 of the Federal Acquisition Regulation shall serve as a prior commercial product or com- mercial service determination with respect to such product or service for purposes of this chapter, including when subject to minor modifications, unless— (A) the prior determination was not issued or approved by a contracting officer of the Department of Defense; or (B) the senior procurement executive of the military department or the Department of Defense as designated for purposes of sec- tion 1702(c) of title 41 determines in writing that it is no longer appropriate to acquire the product or service using commercial ac- quisition procedures. (2) LIMITATION.—(A) Except as provided under subparagraph (B), funds appropriated or otherwise made available to the Department of Defense may not be used for the procure- ment under part 15 of the Federal Acquisition Regulation of a product or service that was previously acquired under a contract using commercial acquisition procedures under part 12 of the Federal Acquisition Regulation. (B) The limitation under subparagraph (A) does not apply to the procurement of a prod- uct or service that was previously acquired using commercial acquisition procedures under part 12 of the Federal Acquisition Regu- lation following— (i) a written determination by the head of contracting activity pursuant to section 3703(d)(2) of this title that the use of such procedures was improper; or (ii) a written determination by the senior procurement executive of the military de- partment or the Department of Defense as designated for purposes of section 1702(c) of title 41 that it is no longer appropriate to ac- quire the product or service using such pro- cedures. (Added Pub. L. 114–92, div. A, title VIII, § 851(a)(1), Nov. 25, 2015, 129 Stat. 916, § 2380; amended Pub. L. 114–328, div. A, title VIII, § 873, Dec. 23, 2016, 130 Stat. 2307; Pub. L. 115–91, div. A, title VIII, § 848, Dec. 12, 2017, 131 Stat. 1487; Pub. L. 115–232, div. A, title VIII, § 836(d)(5), (8)(E), Aug. 13, 2018, 132 Stat. 1868, 1869; renumbered § 3456 and amended Pub. L. 116–283, div. A, title VIII, § 816, title XVIII, §§ 1821(a)(2), (b)(5), 1831(j)(5), Jan. 1, 2021, 134 Stat. 3750, 4195, 4217; Pub. L. 117–81, div. A, title XVII, § 1701(b)(9), (10)(I)(ii), Dec. 27, 2021, 135 Stat. 2133, 2134; Pub. L. 118–31, div. A, title VIII, § 801, Dec. 22, 2023, 137 Stat. 312; Pub. L. 118–159, div. A, title VIII, § 814, Dec. 23, 2024, 138 Stat. 1980.) Editorial Notes AMENDMENTS 2024—Subsec. (c)(1). Pub. L. 118–159 added par. (1) and struck out former par. (1). Prior to amendment, text read as follows: ‘‘A contract for a product or service ac- quired using commercial acquisition procedures under part 12 of the Federal Acquisition Regulation shall