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

Summary

Agencies may pay for commercial products and services using normal commercial terms when the agency head decides it is appropriate and in the best interest of the United States. The agency head must get adequate security for those payments. If the security is a lien for the United States, that lien is superior to other claims and starts 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 begins. The agency head can skip parts of sections 3803 and 3804 if those parts clash with normal commercial terms. Payments for covered services bought under a commercially utilized acquisition strategy are not treated as advance payments under section 3803. "Commercially utilized acquisition strategy": buying a service on terms like those offered to the public and sold either as a consumption-based solution (see section 3605) or as a subscription/other set-price access model. "Covered service": a commercial service that combines hardware, software, people, or other parts (including commercial satellite data) into 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