§3501 — Title 41 Public Contracts | U.S. Code

Summary

Federal procurement rules must treat some services as commercial only when the contracting officer writes that the offeror gave enough information to check the price by comparing it to market prices. The officer can ask the offeror for the prices others paid for the same or similar commercial services under similar terms, for both government and commercial customers. If that still doesn't show a reasonable price, the officer can ask for other relevant cost details, like labor costs, material costs, and overhead rates. Definitions: "cost or pricing data" = factual information up to the date the price is agreed that a reasonable buyer or seller would expect to affect price talks (not purely opinion); "subcontract" = a transfer of commercial products or services between divisions, subsidiaries, or affiliates.

Title 41, §3501

Public Contracts — Source: USLM XML via OLRC

(a)In this chapter:

(1)The term “cost or pricing data” means all facts that, as of the date of agreement on the price of a contract (or the price of a contract modification) or, if applicable consistent with section 3506(a)(2) of this title, another date agreed upon between the parties, a prudent buyer or seller would reasonably expect to affect price negotiations significantly. The term does not include information that is judgmental, but does include factual information from which a judgment was derived.

(2)The term “subcontract” includes a transfer of commercial products or commercial services between divisions, subsidiaries, or affiliates of a contractor or a subcontractor.

(b)(1)The Federal Acquisition Regulation shall ensure that services that are not offered and sold competitively in substantial quantities in the commercial marketplace, but are of a type offered and sold competitively in substantial quantities in the commercial marketplace, may be treated as commercial services for purposes of this chapter only if the contracting officer determines in writing that the offeror has submitted sufficient information to evaluate, through price analysis, the reasonableness of the price for the services.

(2)To the extent necessary to make a determination under paragraph (1), the contracting officer may request the offeror to submit—

(A)prices paid for the same or similar commercial services under comparable terms and conditions by both government and commercial customers; and

(B)if the contracting officer determines that the information described in subparagraph (A) 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.

Notes & Related Subsidiaries

Historical and Revision Notes

Revised SectionSource (U.S. Code)Source (Statutes at Large) 3501(a)41:254b(h).June 30, 1949, ch. 288, title III, § 304A(h), formerly § 304A(i), as added Pub. L. 103–355, title I, § 1251(a)(2), Oct. 13, 1994, 108 Stat. 3284; redesignated as § 304A(h), Pub. L. 104–106, title XLII, § 4201(b)(2)(B), Feb. 10, 1996, 110 Stat. 652. 3501(b)41:254b note.Pub. L. 110–417, [div. A], title VIII, § 868, Oct. 14, 2008, 122 Stat. 4552. Subsection (a) of Pub. L. 110–417, § 868 is omitted as unnecessary. In subsection (b)(1), the words “The Federal Acquisition Regulation” are substituted for “The

Regulations

modified pursuant to subsection (a)” for clarity and conformity with the revised title.

Editorial Notes

Amendments

2018—Subsec. (a). Pub. L. 115–232, § 836(b)(11)(A), redesignated pars. (2) and (3) as (1) and (2), respectively, substituted “commercial products or commercial services” for “commercial items” in par. (2), as redesignated, and struck out former par. (1), which defined “commercial item”. Subsec. (b)(1). Pub. L. 115–232, § 836(b)(11)(B), in heading, struck out “item” before “authority” and, in text, substituted “commercial services” for “commercial items”. Subsec. (b)(2)(A). Pub. L. 115–232, § 836(b)(11)(B)(ii), substituted “commercial services” for “commercial items”.

Statutory Notes and Related Subsidiaries

Effective Date

of 2018 AmendmentAmendment by Pub. L. 115–232 effective Jan. 1, 2020, subject to a

Savings Provision

, see section 836(h) of Pub. L. 115–232, set out as an

Effective Date

of 2018 Amendment;

Savings Provision

note under section 453b of Title 6, Domestic Security.

§3501 General

Summary

Title 41, §3501

Notes & Related Subsidiaries

Historical and Revision Notes

Regulations

Editorial Notes

Amendments

Statutory Notes and Related Subsidiaries

Effective Date

Savings Provision

Effective Date

Savings Provision

Citations & Metadata