REGULATIONS ON ACQUISITION OF COMMERCIAL ITEMS.

SEC. 8002. REGULATIONS ON ACQUISITION OF COMMERCIAL ITEMS. (a) In General.— The Federal Acquisition Regulation shall provide regulations to implement paragraphs (12) through (15) of section 4 of the Office of Federal Procurement Policy Act, chapter 140 of title 10, United States Code, and sections 314 through 314B of the Federal Property and Administrative Services Act of 1949. (b) Contract Clauses.— (1) The regulations prescribed under subsection (a) shall contain a list of contract clauses to be included in contracts for the acquisition of commercial end items. Such list shall, to the maximum extent practicable, include only those contract clauses— (A) that are required to implement provisions of law or executive orders applicable to acquisitions of commercial items or commercial components, as the case may be; or (B) that are determined to be consistent with standard commercial practice. (2) Such regulations shall provide that a prime contractor shall not be required by the Federal Government to apply to any of its divisions, subsidiaries, affiliates, subcontractors, or suppliers that are furnishing commercial items any contract clause except those— (A) that are required to implement provisions of law or executive orders applicable to subcontractors furnishing commercial items or commercial components, as the case may be; or 108 STAT. 3387 (B) that are determined to be consistent with standard commercial practice. (3) To the maximum extent practicable, only the contract clauses listed pursuant to paragraph (1) may be used in a contract, and only the contract clauses referred to in paragraph (2) may be required to be used in a subcontract, for the acquisition of commercial items or commercial components by or for an executive agency. (4) The Federal Acquisition Regulation shall provide standards and procedures for waiving the use of contract clauses required pursuant to paragraph (1), other than those required by law, including standards for determining the cases in which a waiver is appropriate. (5) For purposes of this subsection, the term “subcontract” includes a transfer of commercial items between divisions, subsidiaries, or affiliates of a contractor or subcontractor. (c) Market Acceptance.— (1) The Federal Acquisition Regulation shall provide that under appropriate conditions the head of an executive agency may require offerors to demonstrate that the items offered— (A) have either— (i) achieved commercial market acceptance; or (ii) been satisfactorily supplied to an executive agency under current or recent contracts for the same or similar requirements; and (B) otherwise meet the item description, specifications, or other criteria prescribed in the public notice and solicitation relating to the contract. (2) The Federal Acquisition Regulation shall provide guidance to ensure that the criteria for determining commercial market acceptance include the consideration of— (A) the minimum needs of the executive agency concerned; and (B) the entire relevant commercial market, including small businesses. (d) Use of Firm, Fixed Price Contracts.— The Federal Acquisition Regulation shall include, for acquisitions of commercial items— (1) a requirement that firm, fixed price contracts or fixed price with economic price adjustment contracts be used to the maximum extent practicable; and (2) a prohibition on use of cost type contracts. (e) Contract Quality Requirements.— The regulations prescribed under subsection (a) shall include provisions that— (1) permit, to the maximum extent practicable, a contractor under a commercial items acquisition to use the existing quality assurance system of the contractor as a substitute for compliance with an otherwise applicable requirement for the Government to inspect or test the commercial items before the contractor’s tender of those items for acceptance by the Government; (2) require that, to the maximum extent practicable, the executive agency take advantage of warranties (including extended warranties) offered by offerors of commercial items and use such warranties for the repair and replacement of commercial items; and 108 STAT. 3388 (3) set forth guidance regarding the use of past performance of commercial items and sources as a factor in contract award decisions. (f) Defense Contract Clauses.— (1) Section 824(b) of the National Defense Authorization Act for Fiscal Years 1990 and 1991 (Public Law 101–189; 10 U.S.C. 2325 note) shall cease to be effective on the date on which the regulations implementing this section become effective. (2) Notwithstanding subsection (b), a contract of the Department of Defense entered into before the date on which section 824(b) ceases to be effective under paragraph (1), and a subcontract entered into before such date under such a contract, may include clauses developed pursuant to paragraphs (2) and (3) of section 824(b) of the National Defense Authorization Act for Fiscal Years 1990 and 1991 (Public Law 101–189; 10 U.S.C. 2325 note).