12 2 STA T . 22 3PUBLIC LA W 11 0– 1 8 1 —J A N .28 , 2008 ‘ ‘ (A)thecomp o n ent o rs p a re part i s inten d ed f or — ‘‘(i) a ma j or w eapon s y stem that is b ein g p u rchased , or has been purchased, under procedures estab l ished for the procurement of commercial items in accordance with the re q uirements of subsection (a)
or ‘‘(ii) a subsystem of a major weapon system that is being purchased, or has been purchased, under procedures established for the procurement of commercial items in accordance with the requirements of subsection (b); or ‘‘( B ) the contracting officer determines in writing that— ‘‘(i) the component or spare part is a commercial item, as defined in section 4 ( 12 ) of the O ffice of F ederal P rocure - ment Policy Act (41 U.S . C .4 03 (12)); and ‘‘(ii) the offeror has submitted sufficient information toe v aluate, through price analysis, the reasonableness of the price for such component or spare part. ‘‘(2) T his subsection shall apply only to components and spare parts that are acquired by the D epartment 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). ‘‘(d) INFORMATI ONS UB MITT ED .—To the e x tent necessary to ma k e a determination under subsection (a)(2), (b)(2), or (c)(1)(B), the contracting 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 informa- tion described in paragraph (1) is not sufficient 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. ’ ’. (2) CONFORMIN G AMENDMENT TO TE CH NICA L DATA P RO V I- S ION.—Section 2321(f)(2) of such title is amended by striking ‘‘(whether or not under a contract for commercial items)’’ and inserting ‘‘(other than technical data for a commercially avail- able off-the-shelf item as defined in section 3 5 (c) of the Office of Federal Procurement Policy Act (41 U.S.C. 431(c)))’’. (b) SALES OF COMMERCIAL ITEMS TO N ONGOVERNMENTAL E NTI- TIES.—Not later than 1 8 0 days after the date of the enactment of this Act, the Secretary of Defense shall modify the regulations of the Department of Defense on the procurement of commercial items in order to clarify that the terms ‘‘general public’’ and ‘‘non- governmental entities’’ in such regulations do not include the Fed- eral G overnment or a State, local, or foreign government. SEC.816 . R E VI E WOF S Y S T E M IC D EFICIE N CIES ON M AJ OR DEFENSE AC QU ISITION P RO G RAMS. (a) ANNUAL R EVIE W .—The Under Secretary of Defense for Acquisition, Technology, and L ogistics shall conduct an annual review of systemic deficiencies in the major defense acquisition programs of the Department of Defense for each fiscal year in which three or more major defense acquisition programs— (1) experience a critical cost growth threshold breach; (2) have a section 23 6 6a certification withdrawn; or Deadlin e .R e gu la t i o n s . 10USC23 02 note.
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