ACQUISITION OF COMMERCIAL AND NONDEVELOPMENTAL ITEMS

SEC. 824. ACQUISITION OF COMMERCIAL AND NONDEVELOPMENTAL ITEMS (a) In General.—The Secretary of Defense shall— (1) prescribe regulations as provided in subsection (b); and (2) conduct an analysis as provided in subsection (c). (b) Regulations.—(1) Not later than 180 days after the date of the enactment of this Act, the Secretary of Defense shall publish for public comment new regulations to carry out the requirements in this subsection and rescind any regulations that are inconsistent with the requirements of this subsection. The Secretary shall promulgate final regulations to carry out such requirements not later than 270 days after the date of the enactment of this Act. (2) The Secretary of Defense shall develop a simplified uniform contract for the acquisition of commercial items by the Department of Defense and shall require that such simplified uniform contract be used for the acquisition of commercial items to the maximum extent practicable. The uniform contract shall include only— (A) those contract clauses that are required to implement provisions of law applicable to such an acquisition; and (B) those contract clauses that are appropriate, as determined by the Secretary of Defense, for a contract for such an acquisition. In addition to the clauses described in subparagraphs (A) and (B), a contract for the acquisition of commercial items may include only such clauses as are essential for the protection of the Federal 103 STAT. 1505Government’s interest in the particular contract, as determined in writing by the contracting officer for such contract. (3) The Secretary of Defense shall require that a prime contractor under a Department of Defense contract for the acquisition of commercial items be required to include in subcontracts under such contract only— (A) those contract clauses that are required to implement provisions of law applicable to such subcontracts; and (B) those contract clauses that are appropriate, as determined by the Secretary of Defense, for such a subcontract. In addition to the clauses described in subparagraphs (A) and (B), a contractor under a Department of Defense contract for the acquisition of commercial items may be required to include in a sub-contract under such contract only such clauses as are essential for the protection of the Federal Government’s interest in the particular subcontract, as determined in writing by the contracting officer for such contract. (4) The Secretary of Defense shall require the use, in appropriate circumstances, of a modified inspection clause with streamlined inspection procedures in each Department of Defense contract for the acquisition of commercial items awarded to a contractor that (A) has a proven record of high quality production, and (B) offers an appropriate warranty to protect the Federal Government’s interest in acquiring a high quality product. (5) The Secretary of Defense shall require the use, in appropriate circumstances, of standard commercial warranties in each Department of Defense contract for the acquisition of commercial items. (6) The Secretary of Defense shall revise the regulations governing the applicability of the exemption contained in section 2306a(b)(1)(B) of title 10, United States Code, consistent with the public interest. In revising such regulations, the Secretary (A) shall address the standards for applying such exemption to contracts and subcontracts for items which are modifications to commercial items, components of commercial items, spare parts for commercial items, new commercial items, or commercial items which are no longer sold to the public, and (B) shall ensure that cost or pricing data are not required in connection with contracts and subcontracts qualifying for an exemption under the regulations as revised under this paragraph. (c) Analysis.—(1) The Secretary of Defense shall conduct an analysis of impediments to the acquisition of nondevelopmental items by the Department of Defense. In conducting the analysis, the Secretary shall consider, at a minimum, the following: (A) Whether to expand the regulations governing the acquisition and distribution of commercial products to address the procurement of nondevelopmental items. (B) Whether revisions to the regulations governing specifications, standards, and other purchase descriptions are necessary to implement the statutory requirement that product specifications be stated in terms of functions to be performed, performance required, or essential physical characteristics, and to minimize the use of specifications unique to the Department of Defense. (C) Whether to establish a presumption that the Department of Defense should not request technical data on commercial items. (D) Whether the Secretary of Defense should make greater use of the authority granted the Secretary in law to exempt 103 STAT. 1506defense contracts for commercial items from the application of various requirements. (2) Not later than 270 days after the date of the enactment of this Act, the Secretary shall develop and submit to the Committees on Armed Services of the Senate and House of Representatives a plan of action for addressing any impediments identified in the analysis required by paragraph (1). The plan shall include a specific schedule for the following (A) Rescission of any regulations that are identified as impediments to the acquisition of nondevelopmental items. (B) Publication for public comment of new regulations to canty out the plan. (C) Submission to Congress of proposals for such legislative changes as may be needed to carry out the plan. (d) Training.— (1) The Secretary of Defense shall establish a program for training contracting officers, program managers, and other appropriate acquisition personnel in the acquisition of nondevelopmental items. (2) The training program shall provide, at a minimum, for the following: (A) Training in the requirements of the regulations promulgated pursuant to this section, the requirements of section 2325 of title 10, United States Code, and regulations prescribed pursuant to that section. (B) Training of contracting officers in the fundamental principles of price analysis and other alternative means of determining price reasonableness. (C) Training of appropriate acquisition personnel in market research techniques and in the drafting of functional and performance specifications. (e) Demonstration Program for Items Issued to Members.— (1) The Secretary of Defense shall carry out a demonstration program in accordance with this subsection with respect to the procurement of individual items of clothing issued to members of the Armed Forces. Under the demonstration program, the Secretary shall— (A) identify those items of clothing that are the same as, or similar to, clothing items produced by commercial sources for sale to consumers other than the Armed Forces; and (B) designate for acquisition in accordance with this subsection certain of such items (hereinafter in this subsection referred to as “demonstration items”) as the Secretary considers appropriate for acquisition under the demonstration program. (2) With respect to a portion (determined by the Secretary) of the contracts for demonstration items entered into by the Department of Defense, the Secretary shall— (A) include in the solicitations for such items a specification reflecting design and functional requirements that are com-parable to those used in the award of commercial contracts; (B) require each offeror to submit a sample article of the item; (C) provide in the evaluation criteria included in the solicitation that award of the contract will be made to the proposal which is most advantageous to the United States, considering only cost or price and other factors included in the solicitation; (D) evaluate competitive proposals, either with or without discussions, and the sample article received in response to a solicitation for such items and award a contract in accordance with the evaluation criteria included in the solicitation; and 103 STAT. 1507 (E) require each contractor awarded a contract for such items to produce items identical in all major characteristics (including quality) to the sample article submitted with the contractor’s bid or proposal. (3) The demonstration program required under this subsection shall apply with respect to solicitations for demonstration items covered by the program issued after the end of the 180-day period beginning on the date of the enactment of this Act and before October 1, 1993.