§ 3456.
Commercial product and commercial service determinations by Department of Defense
(a)
In General.—
The Secretary of Defense shall—
(1)
establish and maintain a centralized capability with necessary expertise and resources 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 reasonableness 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 Defense 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 Commercial 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 commercial product or commercial service, a contracting 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 public 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 memorandum summarizing the determination referred to in paragraph (1), including a detailed justification why the product or service was determined to be commercial or noncommercial. 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 subcontractor a copy of such memorandum.
(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].)