Page:United States Statutes at Large Volume 124.djvu/3783

 124 STAT. 3757 PUBLIC LAW 111–350—JAN. 4, 2011 (A) REQUIREMENT OF OFFERORS.—The Federal Acquisi- tion Regulation shall provide that under appropriate condi- tions the head of an executive agency may require offerors to demonstrate that the items offered— (i) have achieved commercial market acceptance or been satisfactorily supplied to an executive agency under current or recent contracts for the same or similar requirements; and (ii) otherwise meet the item description, specifica- tions, or other criteria prescribed in the public notice and solicitation relating to the contract. (B) REGULATION TO PROVIDE GUIDANCE ON CRITERIA.— The Federal Acquisition Regulation shall provide guidance to ensure that the criteria for determining commercial market acceptance include the consideration of— (i) the minimum needs of the executive agency con- cerned; and (ii) the entire relevant commercial market, including small businesses. (4) PROVISIONS RELATING TO TYPES OF CONTRACTS.— (A) TYPES OF CONTRACTS THAT MAY BE USED.—The Fed- eral Acquisition Regulation shall include, for acquisitions of commercial items— (i) a requirement that firm, fixed price contracts or fixed price with economic price adjustment contracts be used to the maximum extent practicable; (ii) a prohibition on use of cost type contracts; and (iii) subject to subparagraph (B), authority for use of a time-and-materials or labor-hour contract for the procurement of commercial services that are commonly sold to the general public through those contracts and are purchased by the procuring agency on a competitive basis. (B) WHEN TIME-AND-MATERIALS OR LABOR-HOUR CON- TRACT MAY BE USED.—A time-and-materials or labor-hour contract may be used pursuant to the authority referred to in subparagraph (A)(iii)— (i) only for a procurement of commercial services in a category of commercial services described in subparagraph (C); and (ii) only if the contracting officer for the procure- ment— (I) executes a determination and findings that no other contract type is suitable; (II) includes in the contract a ceiling price that the contractor exceeds at its own risk; and (III) authorizes a subsequent change in the ceiling price only on a determination, documented in the contract file, that it is in the best interest of the procuring agency to change the ceiling price. (C) CATEGORIES OF COMMERCIAL SERVICES.—The cat- egories of commercial services referred to in subparagraph (B) are as follows: (i) Commercial services procured for support of a commercial item, as described in section 103(5) of this title.