Page:United States Statutes at Large Volume 108 Part 4.djvu/753

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PUBLIC LAW 103-355 —OCT. 13, 1994 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 soUcitation 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 minimimi 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 t)rpe contracts. (e) CONTRACT QUALITY REQUIREMENTS.— The regulations prescribed under subsection (a) shall include provisions that— (1) permit, to the msiximum 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