Sec. 314. Modifications to relationship of other provisions of law to procurement of commercial products and commercial services
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Section 3452 of title 10, United States Code, is amended by striking subsections
(b)through
(f)and inserting the following new subsections: The Defense Federal Acquisition Regulation Supplement shall include a list of defense-unique provisions of law and of contract clause requirements based on government-wide acquisition regulations, policies, or executive orders expressly required in law that are applicable to contracts for the procurement of commercial products and commercial services by the Department of Defense. A provision of law or contract clause requirement described in subsection
(e)that is enacted after October 13, 1994, shall not be included on the list of applicable provisions of law and contract clause requirements required by paragraph
(1)unless the Under Secretary of Defense for Acquisition and Sustainment makes a written determination that it would be in the best interest of the Department of Defense to apply the provision or contract clause requirement to the contract for the procurement of commercial products and commercial services. The Defense Federal Acquisition Regulation Supplement shall include a list of defense-unique provisions of law and of contract clause requirements based on government-wide acquisition regulations, policies, or executive orders expressly required in law that are applicable to subcontracts for the procurement of commercial products and commercial services. A provision of law or contract clause requirement properly included on the list pursuant to paragraph
(2)must apply to purchases of commercial products and commercial services by the Department of Defense. A provision of law or contract clause requirement described in subsection
(e)that is enacted after October 13, 1994, shall not be included on the list of applicable provisions of law and contract clause requirements required by paragraph
(1)unless the Under Secretary of Defense for Acquisition and Sustainment makes a written determination that it would be in the best interest of the Department of Defense to apply the provision or contract clause requirement to the subcontract for the procurement of commercial products and commercial services. In this subsection, the term subcontract — includes a transfer of commercial products and commercial services between divisions, subsidiaries, or affiliates of a contractor or subcontractor; and does not include agreements entered into by a contractor for the supply of commodities that are intended for use in the performance of multiple contracts with the Department of Defense and other parties and are not identifiable to any particular contract. This subsection does not authorize the waiver of the applicability of any provision of law or contract clause requirement with respect to any first-tier subcontract under a contract with a prime contractor reselling or distributing commercial products and commercial services of another contractor without adding value. The Defense Federal Acquisition Regulation Supplement shall include a list of defense-unique provisions of law and of contract clause requirements based on government-wide acquisition regulations, policies, or executive orders expressly required in law that are applicable to subcontracts for the procurement of commercially available off-the-shelf items by the Department of Defense. A provision of law or contract clause requirement described in subsection
(e)that is enacted after October 13, 1994, shall not be included on the list of applicable provisions of law and contract clause requirements required by paragraph
(1)unless the Under Secretary of Defense for Acquisition and Sustainment makes a written determination that it would be in the best interest of the Department of Defense to apply the provision or contract clause requirement to the procurement of commercially available off-the-shelf items. A provision of law or contract clause requirement referred to in subsections (b)(2), (c)(2), and (d)(2) is a provision of law or contract clause requirement that the Under Secretary of Defense for Acquisition and Sustainment determines sets forth policies, procedures, requirements, or restrictions for the procurement of property or services by the Federal Government, except for a provision of law or contract clause requirement that— provides for criminal or civil penalties; requires that certain articles be bought from United States sources pursuant to section 4862 of this title, or requires that strategic materials critical to national security be bought from United States sources pursuant to section 4863 of this title; or specifically refers to this section and provides that, notwithstanding this section, it shall be applicable to contracts for the procurement of commercial products and commercial services. .