U.S. Code » Title 41 » Subtitle Subtitle I— Federal Procurement Policy › Division Division A— General › Chapter CHAPTER 1— DEFINITIONS › Subchapter SUBCHAPTER I— SUBTITLE DEFINITIONS

41 U.S.C. § 103

Commercial product

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In this subtitle, the term “commercial product” means any of the following:(1) A product, other than real property, that—(A) is of a type customarily used by the general public or by nongovernmental entities for purposes other than governmental purposes; and(B) has been sold, leased, or licensed, or offered for sale, lease, or license, to the general public.(2) A product that—(A) evolved from a product described in paragraph (1) through advances in technology or performance; and(B) is not yet available in the commercial marketplace but will be available in the commercial marketplace in time to satisfy the delivery requirements under a Federal Government solicitation.(3) A product that would satisfy the criteria in paragraph (1) or (2) were it not for—(A) modifications of a type customarily available in the commercial marketplace; or(B) minor modifications made to meet Federal Government requirements.(4) Any combination of products meeting the requirements of paragraph (1), (2), or (3) that are of a type customarily combined and sold in combination to the general public.(5) A product, or combination of products, referred to in paragraphs (1) through (4), even though the product, or combination of products, is transferred between or among separate divisions, subsidiaries, or affiliates of a contractor.(6) A nondevelopmental item if the procuring agency determines, in accordance with conditions in the Federal Acquisition Regulation, that—(A) the product was developed exclusively at private expense; and(B) has been sold in substantial quantities, on a competitive basis, to multiple State and local governments or to multiple foreign governments.(Added Pub. L. 115–232, div. A, title VIII, § 836(a)(1), Aug. 13, 2018, 132 Stat. 1859.)Editorial NotesPrior Provisions

A prior section 103, Pub. L. 111–350, § 3, Jan. 4, 2011, 124 Stat. 3679; Pub. L. 115–91, div. A, title VIII, § 847(a), Dec. 12, 2017, 131 Stat. 1487, defined term “commercial item”, prior to repeal by Pub. L. 115–232, div. A, title VIII, § 836(a)(1), Aug. 13, 2018, 132 Stat. 1859, effective Jan. 1, 2020. See Effective Date note below.

Statutory Notes and Related SubsidiariesEffective Date

Section effective, and repeal of former section 103 effective, on 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.

Notes of Decisions
Cited in 17 cases, 1950–2020 · leading case: Palantir Usg, Inc. v. United States, 129 Fed. Cl. 218 (Fed. Cl. 2016).
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Palantir Usg, Inc. v. United States, 129 Fed. Cl. 218 (Fed. Cl. 2016). · cites it 2× “The court notes that the United States Code at 41 U.S.C. § 103 provides a substantially similar definition of commercial item.”
Palantir Usg, Inc. v. United States, 904 F.3d 980 (Fed. Cir. 2018). “The term "commercial item" is defined at 41 U.S.C. § 103 and FAR 2.101, which apply government-wide.”
United States v. Park Place Assocs., Ltd., 563 F.3d 907 (9th Cir. 2009). “The CSA stated that war contracts “shall not be reopened, annulled, modified, set aside, or disregarded by any officer, employee, or agent of the United States,” 41 U.S.C. § 103 (m), while the FAA declares that courts should confirm arbitration awards “unless the award is…”
Ford Motor Co. v. United States, 378 F.3d 1314 (Fed. Cir. 2004). “41 U.S.C. § 103 (h) (1944). The Termination Agreement between Ford and the Air Force provided for recovery of reimbursable costs that were not then known: (4) Claims of the Contractor against the Government which are based upon responsibility of the Contractor to Third parties .”
Nat'l Cored Forgings Co. v. United States, 115 F. Supp. 469 (Ct. Cl. 1953). · cites it 2× “The Board granted a motion of OHE to dismiss the appeal as to it because OHE was not a "contracting agency" within the definition of section 3(g) of the Contract Settlement Act, 41 U.S.C.A. § 103 (g), and held that Marloch had not proceeded "without a formal contract" within the…”
Monolith Portland Midwest Co. v. Reconstruction Fin. Corp., 128 F. Supp. 824 (S.D. Cal. 1955). “It had defined in § 3, 41 U.S.C.A. § 103 , the words “termination,” “terminate” and “terminated” as referring to the termination or cancellation of work under a prime contract for the con *865 venience or at the option of the government.”
Tucson Airport Auth. v. Gen. Dynamics Corp., 136 F.3d 641 (9th Cir. 1998). “” 41 U.S.C. § 103 (m). The United States does not deny that the Modification Center Contract is subject to the CSA.”
Nat'l Cored Forgings Co. v. United States, 132 F. Supp. 454 (Ct. Cl. 1955). “The Board granted a motion of OHE to dismiss the appeal as to it because OHE was not a “contracting agency” within the definition of section 3(g) of the Contract Settlement Act, supra, 41 U.S.C.A. § 103 (g), and held that Marloch had not proceeded “without a formal contract”…”
Tucson Airport Auth. v. Gen. Dynamics Corp., 922 F. Supp. 273 (D. Ariz. 1996). “or disregarding any final and conclusive settlement entered into under the Act: “The term ‘final and conclusive,’ as applied to any settlement, finding, or decision, means that such settlement, finding, or decision shall not be reopened, annulled, modified, set aside, or…”
Liberty Mut. Ins. v. Friedman, 485 F. Supp. 695 (D. Md. 1979). “41 U.S.C. § 103 , dealing with war contracts, states: As used in this chapter— (a) The term “prime contract” means any contract, agreement, or purchase order heretofore or hereafter entered into by a contracting agency and connected with or related to the prosecution of the war;…”
Erceg v. United States, 179 F.2d 510 (9th Cir. 1950). “See 41 U.S.C.A. §§ 103 (h) and 103(d). Appellant’s pleading discloses that the contract was fully performed, and that the cause of action accrued as of December 1, 1942.”
Analytical Graphics, Inc. v. United States, No. 16-1453 (Fed. Cl. Dec. 12, 2017). · cites it 2× “§ 2377 (b), the statute requires that “[t]he head of an agency shall ensure that procurement officials in that agency, to the maximum extent practicable,” “acquire commercial items or nondevelopmental items other than commercial items to meet the needs of the agency,” and…”
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