§3805 — Title 10 Armed Forces | U.S. Code

Summary

Agencies may pay for commercial products and services using terms like those in the private market if those terms fit the United States’ interest. The agency head must get adequate security for such payments. If the security is a lien for the United States, that lien is stronger than other liens and takes effect when the first payment is made, without any filing or notice. Advance payments can include up to 15 percent of the contract price before any work starts. The agency head can skip applying sections 3803 and 3804 when they would clash with commercial terms. Also, a payment for a covered service bought under a commercially utilized acquisition strategy is not treated as an advance payment under section 3803. Commercially utilized acquisition strategy: buying a service under terms like those sold to the public, either as a consumption-based solution or a subscription/predetermined pricing model. Covered service: a commercial service that combines hardware, software, labor, or data (for example, commercial satellite data and related services) to deliver a capability.

Title 10, §3805

Armed Forces — Source: USLM XML via OLRC

(a)Payments under section 3801 of this title for commercial products and commercial services may be made under such terms and conditions as the head of the agency determines are appropriate or customary in the commercial marketplace and are in the best interests of the United States.

(b)The head of the agency shall obtain adequate security for such payments. If the security is in the form of a lien in favor of the United States, such lien is paramount to all other liens and is effective immediately upon the first payment, without filing, notice, or other action by the United States.

(c)Advance payments made under section 3801 of this title for commercial products and commercial services may include payments, in a total amount of not more than 15 percent of the contract price, in advance of any performance of work under the contract.

(d)(1)The conditions of section 3803 and 3804 of this title need not be applied if they would be inconsistent, as determined by the head of the agency, with commercial terms and conditions pursuant to this section.

(2)For the purposes of section 3803 of this title, a payment for covered services acquired through a commercially utilized acquisition strategy shall not be considered an advance payment made under section 3801 of this title.

(e)In this section:

(1)The term “commercially utilized acquisition strategy” means an acquisition of a service by the head of an agency under terms and conditions that—

(A)are similar to the terms and conditions under which such service is available to the public; and

(B)provide such service—

(i)as a consumption-based solution (as defined in section 3605 of this title); or

(ii)under a technology subscription model or other model based on predetermined pricing for access to such service.

(2)The term “covered service” means a commercial service that includes access to or use of any combination of hardware, equipment, software, labor, or services, including access to commercial satellite data and associated services, that is integrated to provide a capability.

Notes & Related Subsidiaries

Editorial Notes

Codification The text of subsec. (f) of section 2307 of this title, which was transferred to this section and amended by Pub. L. 116–283, § 1834(f), was based on Pub. L. 103–355, title II, § 2001(f), Oct. 13, 1994, 108 Stat. 3302; Pub. L. 115–232, div. A, title VIII, § 836(c)(6), Aug. 13, 2018, 132 Stat. 1866.

Amendments

2025—Subsec. (d). Pub. L. 119–60, § 1827(1), designated existing provisions as par. (1) and added par. (2). Subsec. (e). Pub. L. 119–60, § 1827(2), added subsec. (e). 2021—Pub. L. 116–283, § 1834(f)(1)(A), transferred subsec. (f) of section 2307 of this title to this section and struck out subsec. (f) designation and heading “Conditions for Payments for Commercial Products and Commercial Services” at beginning. Subsec. (a). Pub. L. 116–283, § 1834(f)(1)(B), (4), after transfer of section 2307(f) of this title to this section, redesignated par. (1) as subsec. (a), inserted heading, and substituted “section 3801 of this title” for “subsection (a)”. Subsec. (b). Pub. L. 116–283, § 1834(f)(4), inserted heading. Pub. L. 116–283, § 1834(f)(2), which directed the designation of “the second sentence of subsection (a) as subsection (b)”, was executed by designating the second and third sentences of subsec. (a) as (b), to reflect the probable intent of Congress. Subsec. (c). Pub. L. 116–283, § 1834(f)(1)(B), (5), after transfer of section 2307(f) of this title to this section, redesignated par. (2) as subsec. (c), inserted heading, and substituted “section 3801 of this title” for “subsection (a)”. Subsec. (d). Pub. L. 116–283, § 1834(f)(1)(B), (6), after transfer of section 2307(f) of this title to this section, redesignated par. (3) as subsec. (d), inserted heading, and substituted “section 3803 and 3804 of this title” for “subsections (d) and (e)” and “this section” for “paragraphs (1) and (2)”.

Statutory Notes and Related Subsidiaries

Effective Date

Section and amendment by Pub. L. 116–283 effective Jan. 1, 2022, with additional provisions for delayed implementation and applicability of existing law, see section 1801(d) of Pub. L. 116–283, set out as an

Effective Date

of 2021 Amendment note preceding section 3001 of this title.

§3805 Payments for commercial products and commercial services

Summary

Title 10, §3805

Notes & Related Subsidiaries

Editorial Notes

Amendments

Statutory Notes and Related Subsidiaries

Effective Date

Effective Date

Citations & Metadata