PART V—ACQUISITION

        

Subpart A—General

        

Subpart B—Acquisition Planning

        

Subpart C—Contracting Methods and Contract Types

        

Subpart D—General Contracting Provisions

        

Subpart E—Research and Engineering

        

Subpart F—Major Systems, Major Defense Acquisition Programs, and Weapon Systems Development ¹

        

Subpart F—Major Systems, Major Defense Acquisition Programs, and Weapon Systems Development ¹

        

Subpart G—Other Special Categories of Contracting

        

Subpart H—Contract Management

        

Subpart I—Defense Industrial Base

        

        

Editorial Notes

Codification

Capitalization in subpart items in this analysis was editorially reformatted from the original to conform to their corresponding subpart headings.

Amendments

2024—Pub. L. 118–159, div. A, title XVII, §1701(a)(34)(F), Dec. 23, 2024, 138 Stat. 2205, which directed the insertion of new items for subpart F and chapters 321 to 326 after the item relating to chapter 307, was so executed, notwithstanding that items for subpart F and chapters 321 to 327 (which chapter items did not include designators indicating the first section of each chapter) had been added previously by Pub. L. 116–283, div. A, title XVIII, §1846(a), Jan. 1, 2021, 134 Stat. 4247. See 2021 Amendment note below.

Pub. L. 118–159, div. A, title XVII, §1701(a)(34)(A)–(E), (G)–(I), Dec. 23, 2024, 138 Stat. 2205, added items for chapters 207, 225, 243, 272, 363, 367, and 383; struck out former items for chapters 207 "Budgeting and Appropriations Matters", 225 "Planning and Solicitation Relating to Particular Items or Services", 243 "Other Matters Relating to Awarding and Types of Contracts", 272 "Other Provisions Relating to Cost or Pricing Data", 363 "Prohibitions and Penalties", 367 "Other Administrative and Miscellaneous Provisions", and 383 "Development, Application, & Support of Dual-Use Technologies"; and substituted "3901" for "3961" in item for chapter 287.

2022—Pub. L. 117–263, div. A, title VIII, §804(b), Dec. 23, 2022, 136 Stat. 2701, added item for chapter 253 and struck out former item for chapter 253 "[Reserved]".

2021—Pub. L. 117–81, div. A, title XVII, §1701(i)(8)(A), (l)(2), Dec. 27, 2021, 135 Stat. 2142, 2144, which directed amendment of this analysis by substituting "[Reserved]" for "Foreign Acquisitions" and starting section number 3881 in item for chapter 283 and by adding item for chapter 287 and striking out former item for chapter 287 "Socioeconomic Programs", was executed by amending this analysis as directed, notwithstanding that other amendments by section 1701(i) and (l) of Pub. L. 117–81 were directed to Pub. L. 116–283, and not to the Code directly, and that such amendments are effective as if included in title XVIII of Pub. L. 116–283.

Pub. L. 117–81, div. A, title XVII, §1701(i)(5)(A), (B)(ii), Dec. 27, 2021, 135 Stat. 2141, made similar amendments, resulting in the substitution of "[Reserved]" for "Rapid Acquisition Procedures" and starting section number 3601 in item for chapter 253. Section 1701(i)(5)(B)(ii) amended Pub. L. 116–283, div. A, title XVIII, §1824(b), Jan. 1, 2021, 134 Stat. 4205, which had added the item for chapter 253, while section 1701(i)(5)(A) amended this analysis directly.

Pub. L. 117–81, div. A, title XVII, §1701(g), Dec. 27, 2021, 135 Stat. 2140, substituted "3061", "3101", and "3131", respectively, for "3021", "3051", and "3101", respectively, in items for chapters 203, 205, and 207, added item for chapter 247 and struck out former item for chapter 247 "Acquisition of Commercial Items", substituted "3571" for "3551" in item for chapter 251, added items for chapters 257 and 258 and struck out former item for chapter 257 "Contracts for Long-Term Lease or Charter of Vessels, Aircraft, and Combat", and substituted "Provisions" for "requirements" in item for subpart D.

Pub. L. 116–283, div. A, title XVIII, §§1841(a)(2), 1856(a), Jan. 1, 2021, 134 Stat. 4243, 4273, as amended by Pub. L. 117–81, div. A, title XVII, §1701(i)(9)(A), (u)(1), Dec. 27, 2021, 135 Stat. 2142, 2150, added items for subpart E and chapters 301 to 307 and item for chapter 343.

Pub. L. 116–283, div. A, title XVIII, §§1811(a), 1816(a), 1824(b), 1825(l), 1831(l), 1833(a)(2), 1846(a), 1866(a), 1873(f), Jan. 1, 2021, 134 Stat. 4164, 4181, 4205, 4208, 4217, 4226, 4247, 4279, 4290, added items for chapters 221 to 225, 241 to 244, 253, 257, 271, 272, and 275, items for subpart F and chapters 321 to 327, and items for chapters 341, 381 to 385, and 387 to 389 and struck out former items for chapters 221 "Planning and Solicitation Generally", 223 "Planning and Solicitation Relating to Particular Items or Services", 241 "Awarding of Contracts", 243 "Specific Types of Contracts", 253 "Emergency and Rapid Acquisitions", 271 "Truthful Cost or Pricing Data", 275 "Proprietary Contractor Data and Technical Data", and 285 "Small Business Programs", items for subpart E "special categories of contracting: major defense acquisition programs and major systems" and chapters 301 "Major Defense Acquisition Programs", 303 "Weapon Systems Development and Related Matters", and 305 "Other Matters Relating to Major Systems" and for subpart F "special categories of contracting: research, development, test, and evaluation" and for chapters 321 "Research and Development Generally", 323 "Innovation", 325 "Department of Defense Laboratories", 327 "Research and Development Centers and Facilities", and 329 "Operational Test and Evaluation; Developmental Test and Evaluation", and former items for chapters 341 "Contracting for Performance of Civilian Commercial or Industrial Type Functions", 343 "Acquisition of Services", 381 "Defense Industrial Base Generally", 383 "Loan Guarantee Programs", and 385 "Procurement Technical Assistance Cooperative Agreement Program".

2018—Pub. L. 115–232, div. A, title VIII, §801(a), Aug. 13, 2018, 132 Stat. 1825, added analysis for part V consisting of items for subparts A to I and chapters 201 to 385. Capitalization in subpart headings is as it appears in the original.

Statutory Notes and Related Subsidiaries

Redesignations by Pub. L. 115–232 of Chapters and Sections in Former Subtitles B to D

Chapters 301 to 953 and sections 3001 to 9448 of this title, which formerly comprised subtitles B to D, were significantly redesignated by Pub. L. 115–232, div. A, title VIII, §§806–808, Aug. 13, 2018, 132 Stat. 1832–1839. The chapter and section redesignations made by Pub. L. 115–232 throughout subtitles B to D of this title are shown in the following table:

Table Showing Redesignations Made by Pub. L. 115–232

Title 10 Chapter or Section Before Redesignation	Title 10 Chapter or Section After Redesignation
Ch. 301	10 U.S.C. Ch. 701
3001	10 U.S.C. 7001
Ch. 303	10 U.S.C. Ch. 703
3011	10 U.S.C. 7011
3012	10 U.S.C. 7012
3013	10 U.S.C. 7013
3014	10 U.S.C. 7014
3015	10 U.S.C. 7015
3016	10 U.S.C. 7016
3017	10 U.S.C. 7017
3018	10 U.S.C. 7018
3019	10 U.S.C. 7019
3020	10 U.S.C. 7020
3021	10 U.S.C. 7021
3022	10 U.S.C. 7022
3023	10 U.S.C. 7023
3024	10 U.S.C. 7024
Ch. 305	10 U.S.C. Ch. 705
3031	10 U.S.C. 7031
3032	10 U.S.C. 7032
3033	10 U.S.C. 7033
3034	10 U.S.C. 7034
3035	10 U.S.C. 7035
3036	10 U.S.C. 7036
3037	10 U.S.C. 7037
3038	10 U.S.C. 7038
Ch. 307	10 U.S.C. Ch. 707
3061	10 U.S.C. 7061
3062	10 U.S.C. 7062
3063	10 U.S.C. 7063
3064	10 U.S.C. 7064
3065	10 U.S.C. 7065
3067	10 U.S.C. 7067
3068	10 U.S.C. 7068
3069	10 U.S.C. 7069
3070	10 U.S.C. 7070
3072	10 U.S.C. 7072
3073	10 U.S.C. 7073
3074	10 U.S.C. 7074
3075	10 U.S.C. 7075
3081	10 U.S.C. 7081
3083	10 U.S.C. 7083
3084	10 U.S.C. 7084
Ch. 331	10 U.S.C. Ch. 711
3201	10 U.S.C. 7101
3210	10 U.S.C. 7110
Ch. 333	10 U.S.C. Ch. 713
3251	10 U.S.C. 7131
3258	10 U.S.C. 7138
3262	10 U.S.C. 7142
Ch. 335	10 U.S.C. Ch. 715
3281	10 U.S.C. 7151
3282	10 U.S.C. 7152
3283	10 U.S.C. 7153
Ch. 339	10 U.S.C. Ch. 719
3446	10 U.S.C. 7176
Ch. 341	10 U.S.C. Ch. 721
3491	10 U.S.C. 7191
3503	10 U.S.C. 7203
Ch. 343	10 U.S.C. Ch. 723
3533	10 U.S.C. 7213
3534	10 U.S.C. 7214
3536	10 U.S.C. 7216
3547	10 U.S.C. 7217
3548	10 U.S.C. 7218
Ch. 345	10 U.S.C. Ch. 725
3572	10 U.S.C. 7222
3575	10 U.S.C. 7225
3579	10 U.S.C. 7229
3581	10 U.S.C. 7231
3583	10 U.S.C. 7233
Ch. 349	10 U.S.C. Ch. 729
3639	10 U.S.C. 7239
Ch. 353	10 U.S.C. Ch. 733
3681	10 U.S.C. 7251
3384	10 U.S.C. 7252
3691	10 U.S.C. 7253
Ch. 355	10 U.S.C. Ch. 735
3723	10 U.S.C. 7263
Ch. 357	10 U.S.C. Ch. 737
3741	10 U.S.C. 7271
3742	10 U.S.C. 7272
3743	10 U.S.C. 7273
3744	10 U.S.C. 7274
3745	10 U.S.C. 7275
3746	10 U.S.C. 7276
3747	10 U.S.C. 7277
3748	10 U.S.C. 7278
3749	10 U.S.C. 7279
3750	10 U.S.C. 7280
3751	10 U.S.C. 7281
3752	10 U.S.C. 7282
3753	10 U.S.C. 7283
3754	10 U.S.C. 7284
3755	10 U.S.C. 7285
3756	10 U.S.C. 7286
Ch. 367	10 U.S.C. Ch. 741
3911	10 U.S.C. 7311
3914	10 U.S.C. 7314
3917	10 U.S.C. 7317
3918	10 U.S.C. 7318
3920	10 U.S.C. 7320
3921	10 U.S.C. 7321
3924	10 U.S.C. 7324
3925	10 U.S.C. 7325
3926	10 U.S.C. 7326
3929	10 U.S.C. 7329
Ch. 369	10 U.S.C. Ch. 743
3961	10 U.S.C. 7341
3962	10 U.S.C. 7342
3963	10 U.S.C. 7343
3964	10 U.S.C. 7344
3965	10 U.S.C. 7345
3966	10 U.S.C. 7346
Ch. 371	10 U.S.C. Ch. 745
3991	10 U.S.C. 7361
3992	10 U.S.C. 7362
Ch. 373	10 U.S.C. Ch. 747
4021	10 U.S.C. 7371
4024	10 U.S.C. 7374
4025	10 U.S.C. 7375
4027	10 U.S.C. 7377
Ch. 375	10 U.S.C. Ch. 749
4061	10 U.S.C. 7381
Ch. 401	10 U.S.C. Ch. 751
4301	10 U.S.C. 7401
4302	10 U.S.C. 7402
4303	10 U.S.C. 7403
4306	10 U.S.C. 7406
4309	10 U.S.C. 7409
4314	10 U.S.C. 7414
4315	10 U.S.C. 7415
4317	10 U.S.C. 7417
4318	10 U.S.C. 7418
4319	10 U.S.C. 7419
4320	10 U.S.C. 7420
4321	10 U.S.C. 7421
Ch. 403	10 U.S.C. Ch. 753
4331	10 U.S.C. 7431
4332	10 U.S.C. 7432
4333	10 U.S.C. 7433
4333a	10 U.S.C. 7433a
4334	10 U.S.C. 7434
4335	10 U.S.C. 7435
4336	10 U.S.C. 7436
4337	10 U.S.C. 7437
4338	10 U.S.C. 7438
4340	10 U.S.C. 7440
4341	10 U.S.C. 7441
4341a	10 U.S.C. 7441a
4342	10 U.S.C. 7442
4343	10 U.S.C. 7443
4346	10 U.S.C. 7446
4347	10 U.S.C. 7447
4348	10 U.S.C. 7448
4349	10 U.S.C. 7449
4350	10 U.S.C. 7450
4351	10 U.S.C. 7451
4352	10 U.S.C. 7452
4353	10 U.S.C. 7453
4354	10 U.S.C. 7454
4355	10 U.S.C. 7455
4356	10 U.S.C. 7456
4357	10 U.S.C. 7457
4358	10 U.S.C. 7458
4359	10 U.S.C. 7459
4360	10 U.S.C. 7460
4361	10 U.S.C. 7461
4362	10 U.S.C. 7462
Ch. 407	10 U.S.C. Ch. 757
4411	10 U.S.C. 7481
4412	10 U.S.C. 7482
4413	10 U.S.C. 7483
4414	10 U.S.C. 7484
4416	10 U.S.C. 7486
4417	10 U.S.C. 7487
Ch. 433	10 U.S.C. Ch. 763
4532	10 U.S.C. 7532
4536	10 U.S.C. 7536
4540	10 U.S.C. 7540
4541	10 U.S.C. 7541
4542	10 U.S.C. 7542
4543	10 U.S.C. 7543
4544	10 U.S.C. 7544
Ch. 434	10 U.S.C. Ch. 764
4551	10 U.S.C. 7551
4552	10 U.S.C. 7552
4553	10 U.S.C. 7553
4554	10 U.S.C. 7554
4555	10 U.S.C. 7555
Ch. 435	10 U.S.C. Ch. 765
4561	10 U.S.C. 7561
4562	10 U.S.C. 7562
4563	10 U.S.C. 7563
4564	10 U.S.C. 7564
4565	10 U.S.C. 7565
Ch. 437	10 U.S.C. Ch. 767
4591	10 U.S.C. 7591
4592	10 U.S.C. 7592
4593	10 U.S.C. 7593
4594	10 U.S.C. 7594
4595	10 U.S.C. 7595
Ch. 439	10 U.S.C. Ch. 769
4621	10 U.S.C. 7621
4622	10 U.S.C. 7622
4624	10 U.S.C. 7624
4625	10 U.S.C. 7625
4626	10 U.S.C. 7626
4627	10 U.S.C. 7627
4628	10 U.S.C. 7628
4629	10 U.S.C. 7629
Ch. 441	10 U.S.C. Ch. 771
4652	10 U.S.C. 7652
4653	10 U.S.C. 7653
4654	10 U.S.C. 7654
4655	10 U.S.C. 7655
4656	10 U.S.C. 7656
4657	10 U.S.C. 7657
Ch. 443	10 U.S.C. Ch. 773
4682	10 U.S.C. 7682
4683	10 U.S.C. 7683
4684	10 U.S.C. 7684
4685	10 U.S.C. 7685
4686	10 U.S.C. 7686
4687	10 U.S.C. 7687
4688	10 U.S.C. 7688
4689	10 U.S.C. 7689
4690	10 U.S.C. 7690
Ch. 445	10 U.S.C. Ch. 775
4712	10 U.S.C. 7712
4714	10 U.S.C. 7714
Ch. 446	10 U.S.C. Ch. 776
4721	10 U.S.C. 7721
4722	10 U.S.C. 7722
4723	10 U.S.C. 7723
4724	10 U.S.C. 7724
4725	10 U.S.C. 7725
4726	10 U.S.C. 7726
4727	10 U.S.C. 7727
Ch. 447	10 U.S.C. Ch. 777
4749	10 U.S.C. 7749
Ch. 449	10 U.S.C. Ch. 779
4771	10 U.S.C. 7771
4772	10 U.S.C. 7772
4776	10 U.S.C. 7776
4777	10 U.S.C. 7777
4778	10 U.S.C. 7778
4779	10 U.S.C. 7779
4780	10 U.S.C. 7780
4781	10 U.S.C. 7781
Ch. 451	10 U.S.C. Ch. 781
4801	10 U.S.C. 7801
4802	10 U.S.C. 7802
4803	10 U.S.C. 7803
4804	10 U.S.C. 7804
4806	10 U.S.C. 7806
Ch. 453	10 U.S.C. Ch. 783
4831	10 U.S.C. 7831
4837	10 U.S.C. 7837
4838	10 U.S.C. 7838
4839	10 U.S.C. 7839
4840	10 U.S.C. 7840
4841	10 U.S.C. 7841
4842	10 U.S.C. 7842
Ch. 501	10 U.S.C. Ch. 801
5001	10 U.S.C. 8001
Ch. 503	10 U.S.C. Ch. 803
5011	10 U.S.C. 8011
5012	10 U.S.C. 8012
5013	10 U.S.C. 8013
5013a	10 U.S.C. 8013a
5014	10 U.S.C. 8014
5015	10 U.S.C. 8015
5016	10 U.S.C. 8016
5017	10 U.S.C. 8017
5018	10 U.S.C. 8018
5019	10 U.S.C. 8019
5020	10 U.S.C. 8020
5022	10 U.S.C. 8022
5023	10 U.S.C. 8023
5024	10 U.S.C. 8024
5025	10 U.S.C. 8025
5026	10 U.S.C. 8026
5027	10 U.S.C. 8027
5028	10 U.S.C. 8028
Ch. 505	10 U.S.C. Ch. 805
5031	10 U.S.C. 8031
5032	10 U.S.C. 8032
5033	10 U.S.C. 8033
5035	10 U.S.C. 8035
5036	10 U.S.C. 8036
5037	10 U.S.C. 8037
5038	10 U.S.C. 8038
Ch. 506	10 U.S.C. Ch. 806
5041	10 U.S.C. 8041
5042	10 U.S.C. 8042
5043	10 U.S.C. 8043
5044	10 U.S.C. 8044
5045	10 U.S.C. 8045
5046	10 U.S.C. 8046
5047	10 U.S.C. 8047
Ch. 507	10 U.S.C. Ch. 807
5061	10 U.S.C. 8061
5062	10 U.S.C. 8062
5063	10 U.S.C. 8063
Ch. 513	10 U.S.C. Ch. 809
5131	10 U.S.C. 8071
5132	10 U.S.C. 8072
5135	10 U.S.C. 8075
5137	10 U.S.C. 8077
5138	10 U.S.C. 8078
5139	10 U.S.C. 8079
5141	10 U.S.C. 8081
5142	10 U.S.C. 8082
5142a	10 U.S.C. 8082a
5143	10 U.S.C. 8083
5144	10 U.S.C. 8084
5148	10 U.S.C. 8088
5149	10 U.S.C. 8089
5150	10 U.S.C. 8090
Ch. 533	10 U.S.C. Ch. 811
5441	10 U.S.C. 8101
5450	10 U.S.C. 8102
5451	10 U.S.C. 8103
Ch. 535	10 U.S.C. Ch. 812
5501	10 U.S.C. 8111
5502	10 U.S.C. 8112
5503	10 U.S.C. 8113
5508	10 U.S.C. 8118
Ch. 537	10 U.S.C. Ch. 813
5540	10 U.S.C. 8120
Ch. 539	10 U.S.C. Ch. 815
5582	10 U.S.C. 8132
5585	10 U.S.C. 8135
5587	10 U.S.C. 8137
5587a	10 U.S.C. 8138
5589	10 U.S.C. 8139
5596	10 U.S.C. 8146
Ch. 551	10 U.S.C. Ch. 821
5942	10 U.S.C. 8162
5943	10 U.S.C. 8163
5944	10 U.S.C. 8164
5945	10 U.S.C. 8165
5946	10 U.S.C. 8166
5947	10 U.S.C. 8167
5948	10 U.S.C. 8168
5949	10 U.S.C. 8169
5951	10 U.S.C. 8171
5952	10 U.S.C. 8172
Ch. 553	10 U.S.C. Ch. 823
5983	10 U.S.C. 8183
5985	10 U.S.C. 8185
5986	10 U.S.C. 8186
Ch. 555	10 U.S.C. Ch. 825
6011	10 U.S.C. 8211
6012	10 U.S.C. 8212
6013	10 U.S.C. 8213
6014	10 U.S.C. 8214
6019	10 U.S.C. 8215
6021	10 U.S.C. 8216
6022	10 U.S.C. 8217
6024	10 U.S.C. 8218
6027	10 U.S.C. 8219
6029	10 U.S.C. 8220
6031	10 U.S.C. 8221
6032	10 U.S.C. 8222
6035	10 U.S.C. 8225
6036	10 U.S.C. 8226
Ch. 557	10 U.S.C. Ch. 827
6081	10 U.S.C. 8241
6082	10 U.S.C. 8242
6083	10 U.S.C. 8243
6084	10 U.S.C. 8244
6085	10 U.S.C. 8245
6086	10 U.S.C. 8246
6087	10 U.S.C. 8247
Ch. 559	10 U.S.C. Ch. 829
6113	10 U.S.C. 8253
Ch. 561	10 U.S.C. Ch. 831
6141	10 U.S.C. 8261
6151	10 U.S.C. 8262
6152	10 U.S.C. 8263
6153	10 U.S.C. 8264
6154	10 U.S.C. 8265
6155	10 U.S.C. 8266
6156	10 U.S.C. 8267
6160	10 U.S.C. 8270
6161	10 U.S.C. 8271
Ch. 563	10 U.S.C. Ch. 833
6201	10 U.S.C. 8281
6202	10 U.S.C. 8282
6203	10 U.S.C. 8283
Ch. 565	10 U.S.C. Ch. 835
6221	10 U.S.C. 8286
6222	10 U.S.C. 8287
Ch. 567	10 U.S.C. Ch. 837
6241	10 U.S.C. 8291
6242	10 U.S.C. 8292
6243	10 U.S.C. 8293
6244	10 U.S.C. 8294
6245	10 U.S.C. 8295
6246	10 U.S.C. 8296
6247	10 U.S.C. 8297
6248	10 U.S.C. 8298
6249	10 U.S.C. 8299
6250	10 U.S.C. 8300
6251	10 U.S.C. 8301
6252	10 U.S.C. 8302
6253	10 U.S.C. 8303
6254	10 U.S.C. 8304
6255	10 U.S.C. 8305
6256	10 U.S.C. 8306
6257	10 U.S.C. 8307
6258	10 U.S.C. 8308
Ch. 569	10 U.S.C. Ch. 839
6292	10 U.S.C. 8317
Ch. 571	10 U.S.C. Ch. 841
6321	10 U.S.C. 8321
6322	10 U.S.C. 8322
6323	10 U.S.C. 8323
6324	10 U.S.C. 8324
6325	10 U.S.C. 8325
6326	10 U.S.C. 8326
6327	10 U.S.C. 8327
6328	10 U.S.C. 8328
6329	10 U.S.C. 8329
6330	10 U.S.C. 8330
6331	10 U.S.C. 8331
6332	10 U.S.C. 8332
6333	10 U.S.C. 8333
6334	10 U.S.C. 8334
6335	10 U.S.C. 8335
6336	10 U.S.C. 8336
Ch. 573	10 U.S.C. Ch. 843
6371	10 U.S.C. 8371
6383	10 U.S.C. 8372
6389	10 U.S.C. 8373
6404	10 U.S.C. 8374
6408	10 U.S.C. 8375
Ch. 575	10 U.S.C. Ch. 845
6483	10 U.S.C. 8383
6484	10 U.S.C. 8384
6485	10 U.S.C. 8385
6486	10 U.S.C. 8386
Ch. 577	10 U.S.C. Ch. 847
6522	10 U.S.C. 8392
Ch. 601	10 U.S.C. Ch. 851
6911	10 U.S.C. 8411
6912	10 U.S.C. 8412
6913	10 U.S.C. 8413
6915	10 U.S.C. 8415
Ch. 602	10 U.S.C. Ch. 852
6931	10 U.S.C. 8431
6932	10 U.S.C. 8432
Ch. 603	10 U.S.C. Ch. 853
6951	10 U.S.C. 8451
6951a	10 U.S.C. 8451a
6952	10 U.S.C. 8452
6953	10 U.S.C. 8453
6954	10 U.S.C. 8454
6955	10 U.S.C. 8455
6956	10 U.S.C. 8456
6958	10 U.S.C. 8458
6959	10 U.S.C. 8459
6960	10 U.S.C. 8460
6961	10 U.S.C. 8461
6962	10 U.S.C. 8462
6963	10 U.S.C. 8463
6964	10 U.S.C. 8464
6965	10 U.S.C. 8465
6966	10 U.S.C. 8466
6967	10 U.S.C. 8467
6968	10 U.S.C. 8468
6969	10 U.S.C. 8469
6970	10 U.S.C. 8470
6970a	10 U.S.C. 8470a
6971	10 U.S.C. 8471
6972	10 U.S.C. 8472
6973	10 U.S.C. 8473
6974	10 U.S.C. 8474
6975	10 U.S.C. 8475
6976	10 U.S.C. 8476
6977	10 U.S.C. 8477
6978	10 U.S.C. 8478
6979	10 U.S.C. 8479
6980	10 U.S.C. 8480
6981	10 U.S.C. 8481
Ch. 605	10 U.S.C. Ch. 855
7041	10 U.S.C. 8541
7042	10 U.S.C. 8542
7043	10 U.S.C. 8543
7044	10 U.S.C. 8544
7045	10 U.S.C. 8545
7046	10 U.S.C. 8546
7047	10 U.S.C. 8547
7048	10 U.S.C. 8548
7049	10 U.S.C. 8549
7050	10 U.S.C. 8550
Ch. 607	10 U.S.C. Ch. 857
7081	10 U.S.C. 8581
7082	10 U.S.C. 8582
7083	10 U.S.C. 8583
7084	10 U.S.C. 8584
7085	10 U.S.C. 8585
7086	10 U.S.C. 8586
7087	10 U.S.C. 8587
7088	10 U.S.C. 8588
Ch. 609	10 U.S.C. Ch. 859
7101	10 U.S.C. 8591
7102	10 U.S.C. 8592
7103	10 U.S.C. 8593
7104	10 U.S.C. 8594
Ch. 631	10 U.S.C. Ch. 861
7204	10 U.S.C. 8604
7205	10 U.S.C. 8605
7207	10 U.S.C. 8607
7211	10 U.S.C. 8611
7212	10 U.S.C. 8612
7214	10 U.S.C. 8614
7216	10 U.S.C. 8616
7219	10 U.S.C. 8619
7220	10 U.S.C. 8620
7221	10 U.S.C. 8621
7222	10 U.S.C. 8622
7223	10 U.S.C. 8623
7224	10 U.S.C. 8624
7225	10 U.S.C. 8625
7226	10 U.S.C. 8626
7227	10 U.S.C. 8627
7228	10 U.S.C. 8628
7229	10 U.S.C. 8629
7231	10 U.S.C. 8631
7233	10 U.S.C. 8633
7234	10 U.S.C. 8634
7235	10 U.S.C. 8635
Ch. 633	10 U.S.C. Ch. 863
7291	10 U.S.C. 8661
7292	10 U.S.C. 8662
7293	10 U.S.C. 8663
7294	10 U.S.C. 8664
7297	10 U.S.C. 8667
7299	10 U.S.C. 8669
7299a	10 U.S.C. 8669a
7300	10 U.S.C. 8670
7301	10 U.S.C. 8671
7303	10 U.S.C. 8673
7304	10 U.S.C. 8674
7305	10 U.S.C. 8675
7305a	10 U.S.C. 8675a
7306	10 U.S.C. 8676
7306a	10 U.S.C. 8676a
7306b	10 U.S.C. 8676b
7307	10 U.S.C. 8677
7308	10 U.S.C. 8678
7309	10 U.S.C. 8679
7310	10 U.S.C. 8680
7311	10 U.S.C. 8681
7312	10 U.S.C. 8682
7313	10 U.S.C. 8683
7314	10 U.S.C. 8684
7315	10 U.S.C. 8685
7316	10 U.S.C. 8686
7317	10 U.S.C. 8687
7318	10 U.S.C. 8688
7319	10 U.S.C. 8689
7320	10 U.S.C. 8690
7321	10 U.S.C. 8691
Ch. 637	10 U.S.C. Ch. 865
7361	10 U.S.C. 8701
7362	10 U.S.C. 8702
7363	10 U.S.C. 8703
7364	10 U.S.C. 8704
Ch. 639	10 U.S.C. Ch. 867
7395	10 U.S.C. 8715
7396	10 U.S.C. 8716
Ch. 641	10 U.S.C. Ch. 869
7420	10 U.S.C. 8720
7421	10 U.S.C. 8721
7422	10 U.S.C. 8722
7423	10 U.S.C. 8723
7424	10 U.S.C. 8724
7425	10 U.S.C. 8725
7427	10 U.S.C. 8727
7428	10 U.S.C. 8728
7429	10 U.S.C. 8729
7430	10 U.S.C. 8730
7431	10 U.S.C. 8731
7432	10 U.S.C. 8732
7433	10 U.S.C. 8733
7435	10 U.S.C. 8735
7436	10 U.S.C. 8736
7437	10 U.S.C. 8737
7438	10 U.S.C. 8738
7439	10 U.S.C. 8739
Ch. 643	10 U.S.C. Ch. 871
7472	10 U.S.C. 8742
7473	10 U.S.C. 8743
7476	10 U.S.C. 8746
7477	10 U.S.C. 8747
7478	10 U.S.C. 8748
7479	10 U.S.C. 8749
7479a	10 U.S.C. 8749a
7480	10 U.S.C. 8750
Ch. 645	10 U.S.C. Ch. 873
7522	10 U.S.C. 8752
7523	10 U.S.C. 8753
7524	10 U.S.C. 8754
Ch. 647	10 U.S.C. Ch. 875
7541	10 U.S.C. 8761
7541a	10 U.S.C. 8761a
7541b	10 U.S.C. 8761b
7542	10 U.S.C. 8762
7543	10 U.S.C. 8763
7544	10 U.S.C. 8764
7545	10 U.S.C. 8765
7546	10 U.S.C. 8766
7547	10 U.S.C. 8767
Ch. 649	10 U.S.C. Ch. 877
7571	10 U.S.C. 8771
7572	10 U.S.C. 8772
7573	10 U.S.C. 8773
7576	10 U.S.C. 8776
7577	10 U.S.C. 8777
7579	10 U.S.C. 8779
7580	10 U.S.C. 8780
7581	10 U.S.C. 8781
7582	10 U.S.C. 8782
Ch. 651	10 U.S.C. Ch. 879
7601	10 U.S.C. 8801
7602	10 U.S.C. 8802
7603	10 U.S.C. 8803
7604	10 U.S.C. 8804
7605	10 U.S.C. 8805
7606	10 U.S.C. 8806
Ch. 653	10 U.S.C. Ch. 881
7621	10 U.S.C. 8821
7622	10 U.S.C. 8822
7623	10 U.S.C. 8823
Ch. 655	10 U.S.C. Ch. 883
7651	10 U.S.C. 8851
7652	10 U.S.C. 8852
7653	10 U.S.C. 8853
7654	10 U.S.C. 8854
7655	10 U.S.C. 8855
7656	10 U.S.C. 8856
7657	10 U.S.C. 8857
7658	10 U.S.C. 8858
7659	10 U.S.C. 8859
7660	10 U.S.C. 8860
7661	10 U.S.C. 8861
7662	10 U.S.C. 8862
7663	10 U.S.C. 8863
7664	10 U.S.C. 8864
7665	10 U.S.C. 8865
7666	10 U.S.C. 8866
7667	10 U.S.C. 8867
7668	10 U.S.C. 8868
7669	10 U.S.C. 8869
7670	10 U.S.C. 8870
7671	10 U.S.C. 8871
7672	10 U.S.C. 8872
7673	10 U.S.C. 8873
7674	10 U.S.C. 8874
7675	10 U.S.C. 8875
7676	10 U.S.C. 8876
7677	10 U.S.C. 8877
7678	10 U.S.C. 8878
7679	10 U.S.C. 8879
7680	10 U.S.C. 8880
7681	10 U.S.C. 8881
Ch. 657	10 U.S.C. Ch. 885
7721	10 U.S.C. 8891
7722	10 U.S.C. 8892
7723	10 U.S.C. 8893
7724	10 U.S.C. 8894
7725	10 U.S.C. 8895
7726	10 U.S.C. 8896
7727	10 U.S.C. 8897
7728	10 U.S.C. 8898
7729	10 U.S.C. 8899
7730	10 U.S.C. 8900
Ch. 659	10 U.S.C. Ch. 887
7851	10 U.S.C. 8901
7852	10 U.S.C. 8902
7853	10 U.S.C. 8903
7854	10 U.S.C. 8904
Ch. 661	10 U.S.C. Ch. 889
7861	10 U.S.C. 8911
7862	10 U.S.C. 8912
7863	10 U.S.C. 8913
Ch. 663	10 U.S.C. Ch. 891
7881	10 U.S.C. 8921
Ch. 665	10 U.S.C. Ch. 893
7901	10 U.S.C. 8931
7902	10 U.S.C. 8932
7903	10 U.S.C. 8933
Ch. 667	10 U.S.C. Ch. 895
7912	10 U.S.C. 8942
7913	10 U.S.C. 8943
Ch. 669	10 U.S.C. Ch. 897
7921	10 U.S.C. 8951
Ch. 801	10 U.S.C. Ch. 901
Ch. 803	10 U.S.C. Ch. 903
8011	10 U.S.C. 9011
8012	10 U.S.C. 9012
8013	10 U.S.C. 9013
8014	10 U.S.C. 9014
8015	10 U.S.C. 9015
8016	10 U.S.C. 9016
8017	10 U.S.C. 9017
8018	10 U.S.C. 9018
8019	10 U.S.C. 9019
8020	10 U.S.C. 9020
8021	10 U.S.C. 9021
8022	10 U.S.C. 9022
8023	10 U.S.C. 9023
8024	10 U.S.C. 9024
Ch. 805	10 U.S.C. Ch. 905
8031	10 U.S.C. 9031
8032	10 U.S.C. 9032
8033	10 U.S.C. 9033
8034	10 U.S.C. 9034
8035	10 U.S.C. 9035
8036	10 U.S.C. 9036
8037	10 U.S.C. 9037
8038	10 U.S.C. 9038
8039	10 U.S.C. 9039
8040	10 U.S.C. 9040
Ch. 807	10 U.S.C. Ch. 907
8061	10 U.S.C. 9061
8062	10 U.S.C. 9062
8067	10 U.S.C. 9067
8069	10 U.S.C. 9069
8074	10 U.S.C. 9074
8075	10 U.S.C. 9075
8081	10 U.S.C. 9081
8084	10 U.S.C. 9084
Ch. 831	10 U.S.C. Ch. 911
8210	10 U.S.C. 9110
Ch. 833	10 U.S.C. Ch. 913
8251	10 U.S.C. 9131
8252	10 U.S.C. 9132
8257	10 U.S.C. 9137
8258	10 U.S.C. 9138
Ch. 835	10 U.S.C. Ch. 915
8281	10 U.S.C. 9151
8310	10 U.S.C. 9160
Ch. 839	10 U.S.C. Ch. 919
8446	10 U.S.C. 9176
Ch. 841	10 U.S.C. Ch. 921
8491	10 U.S.C. 9191
8503	10 U.S.C. 9203
Ch. 843	10 U.S.C. Ch. 923
8547	10 U.S.C. 9217
8548	10 U.S.C. 9218
Ch. 845	10 U.S.C. Ch. 925
8572	10 U.S.C. 9222
8575	10 U.S.C. 9225
8579	10 U.S.C. 9229
8581	10 U.S.C. 9231
8583	10 U.S.C. 9233
Ch. 849	10 U.S.C. Ch. 929
8639	10 U.S.C. 9239
Ch. 853	10 U.S.C. Ch. 933
8681	10 U.S.C. 9251
8684	10 U.S.C. 9252
8691	10 U.S.C. 9253
Ch. 855	10 U.S.C. Ch. 935
8723	10 U.S.C. 9263
Ch. 857	10 U.S.C. Ch. 937
8741	10 U.S.C. 9271
8742	10 U.S.C. 9272
8743	10 U.S.C. 9273
8744	10 U.S.C. 9274
8745	10 U.S.C. 9275
8746	10 U.S.C. 9276
8747	10 U.S.C. 9277
8748	10 U.S.C. 9278
8749	10 U.S.C. 9279
8750	10 U.S.C. 9280
8751	10 U.S.C. 9281
8752	10 U.S.C. 9282
8754	10 U.S.C. 9284
8755	10 U.S.C. 9285
8756	10 U.S.C. 9286
Ch. 861	10 U.S.C. Ch. 939
8817	10 U.S.C. 9307
Ch. 867	10 U.S.C. Ch. 941
8911	10 U.S.C. 9311
8914	10 U.S.C. 9314
8917	10 U.S.C. 9317
8918	10 U.S.C. 9318
8920	10 U.S.C. 9320
8921	10 U.S.C. 9321
8924	10 U.S.C. 9324
8925	10 U.S.C. 9325
8926	10 U.S.C. 9326
8929	10 U.S.C. 9329
Ch. 869	10 U.S.C. Ch. 943
8961	10 U.S.C. 9341
8962	10 U.S.C. 9342
8963	10 U.S.C. 9343
8964	10 U.S.C. 9344
8965	10 U.S.C. 9345
8966	10 U.S.C. 9346
Ch. 871	10 U.S.C. Ch. 945
8991	10 U.S.C. 9361
8992	10 U.S.C. 9362
Ch. 873	10 U.S.C. Ch. 947
9021	10 U.S.C. 9371
9025	10 U.S.C. 9375
9027	10 U.S.C. 9377
Ch. 875	10 U.S.C. Ch. 949
9061	10 U.S.C. 9381
Ch. 901	10 U.S.C. Ch. 951
9301	10 U.S.C. 9401
9302	10 U.S.C. 9402
9303	10 U.S.C. 9403
9304	10 U.S.C. 9404
9305	10 U.S.C. 9405
9306	10 U.S.C. 9406
9314	10 U.S.C. 9414
9314a	10 U.S.C. 9414a
9314b	10 U.S.C. 9414b
9315	10 U.S.C. 9415
9317	10 U.S.C. 9417
9319	10 U.S.C. 9419
9320	10 U.S.C. 9420
Ch. 903	10 U.S.C. Ch. 953
9331	10 U.S.C. 9431
9332	10 U.S.C. 9432
9333	10 U.S.C. 9433
9333a	10 U.S.C. 9433a
9334	10 U.S.C. 9434
9335	10 U.S.C. 9435
9336	10 U.S.C. 9436
9338	10 U.S.C. 9438
9341	10 U.S.C. 9441
9341a	10 U.S.C. 9441a
9342	10 U.S.C. 9442
9343	10 U.S.C. 9443
9346	10 U.S.C. 9446
9347	10 U.S.C. 9447
9348	10 U.S.C. 9448
9349	10 U.S.C. 9449
9350	10 U.S.C. 9450
9351	10 U.S.C. 9451
9352	10 U.S.C. 9452
9353	10 U.S.C. 9453
9354	10 U.S.C. 9454
9355	10 U.S.C. 9455
9356	10 U.S.C. 9456
9357	10 U.S.C. 9457
9359	10 U.S.C. 9459
9360	10 U.S.C. 9460
9361	10 U.S.C. 9461
9362	10 U.S.C. 9462
Ch. 907	10 U.S.C. Ch. 957
9411	10 U.S.C. 9481
9412	10 U.S.C. 9482
9413	10 U.S.C. 9483
9414	10 U.S.C. 9484
9417	10 U.S.C. 9487
Ch. 909	10 U.S.C. Ch. 959
9441	10 U.S.C. 9491
9442	10 U.S.C. 9492
9443	10 U.S.C. 9493
9444	10 U.S.C. 9494
9445	10 U.S.C. 9495
9446	10 U.S.C. 9496
9447	10 U.S.C. 9497
9448	10 U.S.C. 9498
Ch. 931	10 U.S.C. Ch. 961
Ch. 933	10 U.S.C. Ch. 963
Ch. 935	10 U.S.C. Ch. 965
Ch. 937	10 U.S.C. Ch. 967
Ch. 939	10 U.S.C. Ch. 969
Ch. 941	10 U.S.C. Ch. 971
Ch. 943	10 U.S.C. Ch. 973
Ch. 945	10 U.S.C. Ch. 975
Ch. 947	10 U.S.C. Ch. 977
Ch. 949	10 U.S.C. Ch. 979
Ch. 951	10 U.S.C. Ch. 981
Ch. 953	10 U.S.C. Ch. 983

Effective Date of 2021 Amendment

Pub. L. 117–81, div. A, title XVII, §1701(a), Dec. 27, 2021, 135 Stat. 2131, provided that:

"(1) Definitions.—In this section [see Tables for classification], the terms 'FY2021 NDAA' and 'such Act' mean the William M. (Mac) Thornberry National Defense Authorization Act for Fiscal Year 2021 (Public Law 116–283) [see Tables for classification].

"(2) Amendments to apply pre-transfer of defense acquisition statutes.—The amendments made by subsections (b), (i), and (j) through (v) [see Tables for classification] shall apply as if included in the enactment of title XVIII of the FY2021 NDAA as enacted.

"(3) Amendments to take effect post-transfer of defense acquisition statutes.—The amendments made by subsections (c) through (h) and (w) [see Tables for classification] shall take effect immediately after the amendments made by title XVIII of the FY2021 NDAA have taken effect. Sections 1883 through 1885 of the FY2021 NDAA [enacting provisions set out as notes below] shall apply with respect to the transfers, redesignations, and amendments made under such subsections as if such transfers, redesignations, and amendments were made under title XVIII of the FY2021 NDAA.

"(4) Reorganization regulation update notice.—[Amended section 1801(d) of Pub. L. 116–283, set out as a note below.]

"(5) Savings provision relating to transfer and reorganization of defense acquisition statutes.—If this Act is enacted after December 31, 2021 [Pub. L. 117–81 approved Dec. 27, 2021], notwithstanding section 1801(d)(1) of the FY2021 NDAA, the amendments made by title XVIII of the FY2021 NDAA shall take effect immediately after the enactment of this Act."

Pub. L. 116–283, div. A, title XVIII, §1801(d), Jan. 1, 2021, 134 Stat. 4151, as amended by Pub. L. 117–81, div. A, title XVII, §1701(a)(4), Dec. 27, 2021, 135 Stat. 2131, provided that:

"(1) Delayed enactment.—Except as specifically provided, this title [see Tables for classification] and the amendments made by this title shall take effect on January 1, 2022.

"(2) Delayed implementation.—Not later than January 1, 2023, the Secretary of Defense shall take such action as necessary to revise or modify the Department of Defense Supplement to the Federal Acquisition Regulation and other existing authorities affected by the enactment of this title and the amendments made by this title.

"(3) Applicability.—

"(A) In general.—The Secretary of Defense shall apply the law as in effect on December 31, 2021, with respect to contracts entered into during the covered period.

"(B) Covered period defined.—In this paragraph, the term 'covered period' means the period beginning on January 1, 2022, and ending on the earlier of—

"(i) the date on which the Secretary of Defense revises or modifies authorities pursuant to paragraph (2) and provides public notice that such authorities have been revised and modified pursuant to such paragraph; or

"(ii) January 1, 2023."

Effective Date of 2018 Amendment; Coordination of Amendments

Pub. L. 115–232, div. A, title VIII, §800, Aug. 13, 2018, 132 Stat. 1825, provided that:

"(a) Effective Dates.—

"(1) Parts i and ii.—Parts I and II of this subtitle [probably means parts I (§801) and II (§§806–809) of subtitle A of title VIII of div. A of Pub. L. 115–232, see Tables for classification], and the redesignations and amendments made by such parts, shall take effect on February 1, 2019.

"(2) Part iii.—Part III of this subtitle [probably means part III (§§811–813) of subtitle A of title VIII of div. A of Pub. L. 115–232, see Tables for classification] shall take effect on the date of the enactment of this Act [Aug. 13, 2018].

"(b) Coordination of Amendments.—The redesignations and amendments made by part II of this subtitle shall be executed before the amendments made by part I of this subtitle.

"(c) Rule for Certain Redesignations.—In the case of a redesignation specified in part II of this subtitle (1) that is to be made to a section of subtitle B, C, or D of title 10, United States Code, for which the current section designation consists of a four-digit number and a letter, and (2) that is directed to be made by the addition of a specified number to the current section designation, the new section designation shall consist of a new four-digit number and the same letter, with the new four-digit number being the number that is the sum of the specified number and the four-digit number in the current section designation."

Rule of Construction

Pub. L. 116–283, div. A, title XVIII, §1885, Jan. 1, 2021, 134 Stat. 4294, provided that: "This title [see Tables for classification], including the amendments made by this title, is intended only to reorganize title 10, United States Code, and may not be construed to alter—

"(1) the effect of a provision of title 10, United States Code, including any authority or requirement therein;

"(2) a department or agency interpretation with respect to title 10, United States Code; or

"(3) a judicial interpretation with respect to title 10, United States Code."

Savings Provisions

Pub. L. 116–283, div. A, title XVIII, §1884, Jan. 1, 2021, 134 Stat. 4294, provided that:

"(a) Regulations, Orders, and Other Administrative Actions.—A regulation, order, or other administrative action in effect under a provision of title 10, United States Code, redesignated by this title [see Tables for classification] continues in effect under the provision as so redesignated.

"(b) Actions Taken and Offenses Committed.—An action taken or an offense committed under a provision of title 10, United States Code, redesignated by this title is deemed to have been taken or committed under the provision as so redesignated."

Transfer and Reorganization of Defense Acquisition Statutes

Pub. L. 116–283, div. A, title XVIII, §1801(a), (b), Jan. 1, 2021, 134 Stat. 4150, provided that:

"(a) Activities.—Not later than February 1, 2021, the Secretary of Defense shall establish a process to engage interested parties and experts from the public and private sectors, as determined appropriate by the Secretary, in a comprehensive review of this title [see Tables for classification] and the amendments made by this title.

"(b) Assessment and Report.—Not later than March 15, 2021, the Secretary of Defense shall submit to the congressional defense committees [Committees on Armed Services and Appropriations of the Senate and the House of Representatives] a report evaluating this title and the amendments made by this title that shall include the following elements:

"(1) Specific recommendations for modifications to the legislative text of this title and the amendments made by this title, along with a list of conforming amendments to law required by this title and the amendments made by this title.

"(2) A summary of activities conducted pursuant to the process established under subsection (a), including an assessment of the effect of this title and the amendments made by this title on related Department of Defense activities, guidance, and interagency coordination.

"(3) An implementation plan for updating the regulations and guidance relating to this title and the amendments made by this title that contains the following elements:

"(A) A description of how the plan will be implemented.

"(B) A schedule with milestones for the implementation of the plan.

"(C) A description of the assignment of roles and responsibilities for the implementation of the plan.

"(D) A description of the resources required to implement the plan.

"(E) A description of how the plan will be reviewed and assessed to monitor progress.

"(4) Such other items as the Secretary considers appropriate."

References to Sections Redesignated by Title XVIII of Pub. L. 116–283

Pub. L. 116–283, div. A, title XVIII, §1883, Jan. 1, 2021, 134 Stat. 4294, provided that:

"(a) Definitions.—In this section:

"(1) Redesignated section.—The term 'redesignated section' means a section of title 10, United States Code, that is redesignated by this title [see Tables for classification], as that section is so redesignated.

"(2) Source section.—The term 'source section' means a section of title 10, United States Code, that is redesignated by this title, as that section was in effect before the redesignation.

"(b) Reference to Source Section.—

"(1) Treatment of reference.—Except as otherwise provided in this title, a reference to a source section, including a reference in a regulation, order, or other law, is deemed to refer to the corresponding redesignated section.

"(2) Title 10.—Except as otherwise provided in this title, in title 10, United States Code, each reference in the text of such title to a source section is amended by striking such reference and inserting a reference to the appropriate redesignated section."

¹ See Amendment note below for Pub. L. 118–159, div. A, title XVII, §1701(a)(34)(F).

² So in original. Probably should be "327".

³ So in original. Probably should not be capitalized.

⁴ So in original. Probably should be capitalized.

Subpart A—General

Editorial Notes

Amendments

2018—Pub. L. 115–232, div. A, title VIII, §801(a), Aug. 13, 2018, 132 Stat. 1826, added subpart heading.

CHAPTER 201—DEFINITIONS

        

Editorial Notes

Prior Provisions

A prior chapter 201 "DEFINITIONS", as added by Pub. L. 115–232, div. A, title VIII, §801(a), Aug. 13, 2018, 132 Stat. 1826, and consisting of reserved section 3001, was repealed by Pub. L. 116–283, div. A, title XVIII, §1806(a)(1), Jan. 1, 2021, 134 Stat. 4151.

SUBCHAPTER I—DEFINITIONS RELATING TO DEFENSE ACQUISITION SYSTEM GENERALLY

        

Editorial Notes

Amendments

2021—Pub. L. 117–81, div. A, title XVII, §1701(i)(1)(A), Dec. 27, 2021, 135 Stat. 2140, amended Pub. L. 116–283, div. A, title XVIII, §1806(a)(1), Jan. 1, 2021, 134 Stat. 4151, which added this analysis, by substituting "[Reserved]" for "Defense Federal Acquisition Regulation Supplement" in item 3003 and for "Service chief concerned" in item 3005.

§3001. Defense acquisition system; element of the defense acquisition system

(a) Defense Acquisition System.—In this part, the term "defense acquisition system" means—

(1) the workforce engaged in carrying out the acquisition of property and services for the Department of Defense;

(2) the management structure responsible for directing and overseeing the acquisition of property and services for the Department of Defense; and

(3) the statutory, regulatory, and policy framework that guides the acquisition of property and services for the Department of Defense.

(b) Element of the Defense Acquisition System.—In this part, the term "element of the defense acquisition system" means an organization that—

(1) employs members of the acquisition workforce;

(2) carries out acquisition functions; and

(3) focuses primarily on acquisition.

(c) Acquisition.—In this section, the term "acquisition" has the meaning provided in section 131 of title 41.

(Added and amended Pub. L. 116–283, div. A, title XVIII, §1806(a)(1)–(4), Jan. 1, 2021, 134 Stat. 4152; Pub. L. 117–81, div. A, title XVII, §1701(b)(1), Dec. 27, 2021, 135 Stat. 2132.)

Editorial Notes

Codification

The text of pars. (2), (3), and (1) of section 2545 of this title, which were transferred or copied to this section, redesignated as subsecs. (a), (b), and (c), respectively, and amended by Pub. L. 116–283, §1806(a)(2)–(4), was based on Pub. L. 111–383, div. A, title VIII, §861(a), Jan. 7, 2011, 124 Stat. 4288; Pub. L. 113–291, div. A, title X, §1071(a)(11), Dec. 19, 2014, 128 Stat. 3505.

Section 2545 of this title, which was transferred or copied in large part to this section by Pub. L. 116–283, §1806(a)(2)–(4), was also transferred to section 3101 of this title by Pub. L. 116–283, §1808(a)(2).

Prior Provisions

A prior section 3001 was renumbered section 7001 of this title.

Amendments

2021—Subsec. (a). Pub. L. 116–283, §1806(a)(2), redesignated par. (2) of section 2545 of this title as subsec. (a) of this section, inserted heading and realigned margin, substituted "In this part, the term" for "The term", and inserted dash after "means", par. (1) designation before "the workforce", par. (2) designation before "the management", and par. (3) designation before "the statutory,".

Subsec. (b). Pub. L. 116–283, §1806(a)(3), redesignated par. (3) of section 2545 of this title as subsec. (b) of this section, inserted heading and realigned margin, substituted "In this part, the term" for "The term", "workforce;" for "workforce,", and "functions;" for "functions,", and inserted dash after "organization that", par. (1) designation before "employs", par. (2) designation before "carries out", and par. (3) designation before "focuses".

Subsec. (c). Pub. L. 116–283, §1806(a)(4), as amended by Pub. L. 117–81, §1701(b)(1), added subsec. (c) consisting of text of par. (1) of section 2545 of this title, inserted heading, and substituted "In this section, the term" for "The term".

Statutory Notes and Related Subsidiaries

Effective Date of 2021 Amendment

Amendment by Pub. L. 117–81 applicable as if included in the enactment of title XVIII of Pub. L. 116–283 as enacted, see section 1701(a)(2) of Pub. L. 117–81, set out in a note preceding this section and Effective Date note below.

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 this section.

§3002. Federal Acquisition Regulation

In this part, the term "Federal Acquisition Regulation" means the Federal Acquisition Regulation issued pursuant to section 1303(a)(1) of title 41.

(Added and amended Pub. L. 116–283, div. A, title XVIII, §1806(a)(1), (5), Jan. 1, 2021, 134 Stat. 4152.)

Editorial Notes

Codification

The text of par. (6) of section 2302 of this title, which was transferred to this section and amended by Pub. L. 116–283, §1806(a)(5), was based on Pub. L. 101–189, div. A, title VIII, §853(b)(1), Nov. 29, 1989, 103 Stat. 1518; Pub. L. 111–350, §5(b)(8)(B), Jan. 4, 2011, 124 Stat. 3843.

Amendments

2021—Pub. L. 116–283, §1806(a)(5), transferred par. (6) of section 2302 of this title to this section, realigned margin, struck out par. (6) designation at beginning, and substituted "In this part, the term" for "The term".

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.

§3003. [Reserved]

(Added Pub. L. 116–283, div. A, title XVIII, §1806(a)(1), Jan. 1, 2021, 134 Stat. 4152; amended Pub. L. 117–81, div. A, title XVII, §1701(i)(1)(B), Dec. 27, 2021, 135 Stat. 2140.)

Editorial Notes

Amendments

2021—Pub. L. 117–81, §1701(i)(1)(B), amended Pub. L. 116–283, §1806(a)(1), which enacted this section, by adding section 3003 designation and catchline "[Reserved]" and striking out former section 3003 designation and catchline "Defense Federal Acquisition Regulation Supplement".

Statutory Notes and Related Subsidiaries

Effective Date of 2021 Amendment

Amendment made to Pub. L. 116–283 by Pub. L. 117–81, resulting in omission of this section, applicable as if included in the enactment of title XVIII of Pub. L. 116–283 as enacted, see section 1701(a)(2) of Pub. L. 117–81, set out in a note preceding section 3001 of this title and Effective Date note below.

Effective Date

Section 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.

§3004. Head of an agency

In this part, the term "head of an agency" means the Secretary of Defense, the Secretary of the Army, the Secretary of the Navy, the Secretary of the Air Force, the Secretary of Homeland Security, and the Administrator of the National Aeronautics and Space Administration.

(Added and amended Pub. L. 116–283, div. A, title XVIII, §1806(a)(1), (6), Jan. 1, 2021, 134 Stat. 4152, 4153.)

Editorial Notes

Codification

The text of par. (1) of section 2302 of this title, which was transferred to this section and amended by Pub. L. 116–283, §1806(a)(6), was based on act Aug. 10, 1956, ch. 1041, 70A Stat. 127; Pub. L. 85–568, title III, §301(b), July 29, 1958, 72 Stat. 432; 96–513, title V, §511(74), Dec. 12, 1980, 94 Stat. 2926; Pub. L. 98–369, div. B, title VII, §2722(a), July 18, 1984, 98 Stat. 1186; Pub. L. 100–26, §7(k)(2), Apr. 21, 1987, 101 Stat. 284; Pub. L. 107–296, title XVII, §1704(b)(1), Nov. 25, 2002, 116 Stat. 2314.

Amendments

2021—Pub. L. 116–283, §1806(a)(6), transferred par. (1) of section 2302 of this title to this section, realigned margin, struck out par. (1) designation at beginning, and substituted "In this part, the term" for "The term".

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.

§3005. [Reserved]

(Added Pub. L. 116–283, div. A, title XVIII, §1806(a)(1), Jan. 1, 2021, 134 Stat. 4152; amended Pub. L. 117–81, div. A, title XVII, §1701(i)(1)(C), Dec. 27, 2021, 135 Stat. 2141.)

Editorial Notes

Amendments

2021—Pub. L. 117–81, §1701(i)(1)(C), amended Pub. L. 116–283, §1806(a)(1), which enacted this section, by adding section 3005 designation and heading "[Reserved]" and striking out former section 3005 heading and catchline "Service chief concerned".

Statutory Notes and Related Subsidiaries

Effective Date of 2021 Amendment

Amendment made to Pub. L. 116–283 by Pub. L. 117–81, resulting in omission of this section, applicable as if included in the enactment of title XVIII of Pub. L. 116–283 as enacted, see section 1701(a)(2) of Pub. L. 117–81, set out in a note preceding section 3001 of this title and Effective Date note below.

Effective Date

Section 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.

§3006. Acquisition workforce

For the definition of the term "acquisition workforce" for the purposes of this part, see section 101(a)(18) of this title.

(Added Pub. L. 116–283, div. A, title XVIII, §1806(a)(1), Jan. 1, 2021, 134 Stat. 4152.)

Editorial Notes

Prior Provisions

A prior section 3010 was renumbered section 7011 of this title.

Statutory Notes and Related Subsidiaries

Effective Date

Section 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.

SUBCHAPTER II—DEFINITIONS APPLICABLE TO PROCUREMENT GENERALLY

        

§3011. Definitions incorporated from title 41

In any chapter 137 legacy provision, the following terms have the meanings provided such terms in chapter 1 of title 41:

(1) The term "procurement".

(2) The term "procurement system".

(3) The term "standards".

(4) The term "full and open competition".

(5) The term "responsible source".

(6) The term "item".

(7) The term "item of supply".

(8) The term "supplies".

(9) The term "commercial product".

(10) The term "commercial service".

(11) The term "nondevelopmental item".

(12) The term "commercial component".

(13) The term "component".

(Added and amended Pub. L. 116–283, div. A, title XVIII, §1806(b)(1), (2), Jan. 1, 2021, 134 Stat. 4153.)

Editorial Notes

Codification

The text of par. (3) of section 2302 of this title, which was transferred to this section and amended by Pub. L. 116–283, §1806(b)(2), was based on Pub. L. 103–355, title I, §1502(1), Oct. 13, 1994, 108 Stat. 3296; Pub. L. 104–106, div. D, title XLIII, §4321(b)(3), Feb. 10, 1996, 110 Stat. 672; Pub. L. 111–350, §5(b)(8), Jan. 4, 2011, 124 Stat. 3842; Pub. L. 115–232, div. A, title VIII, §836(c)(1), Aug. 13, 2018, 132 Stat. 1864.

Prior Provisions

A prior section 3011 was renumbered section 7011 of this title.

Another prior section 3011 was renumbered section 7012 of this title.

Amendments

2021—Pub. L. 116–283, §1806(b)(2), transferred par. (3) of section 2302 of this title to this section, realigned margin, struck out par. (3) designation at beginning, substituted "In any chapter 137 legacy provision, the following" for "The following" in introductory provisions, and redesignated subpars. (A) to (M) as pars. (1) to (13), respectively.

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.

§3012. Competitive procedures

In this part, the term "competitive procedures" means procedures under which the head of an agency enters into a contract pursuant to full and open competition. Such term also includes—

(1) procurement of architectural or engineering services conducted in accordance with chapter 11 of title 40;

(2) the competitive selection for award of science and technology proposals resulting from a general solicitation and the peer review or scientific review (as appropriate) of such proposals;

(3) the procedures established by the Administrator of General Services for the multiple award schedule program of the General Services Administration if—

(A) participation in the program has been open to all responsible sources; and

(B) orders and contracts under such program result in the lowest overall cost alternative to meet the needs of the United States;

(4) procurements conducted in furtherance of section 15 of the Small Business Act (15 U.S.C. 644) as long as all responsible business concerns that are entitled to submit offers for such procurements are permitted to compete; and

(5) a competitive selection of research proposals resulting from a general solicitation and peer review or scientific review (as appropriate) solicited pursuant to section 9 of the Small Business Act (15 U.S.C. 638).

(Added and amended Pub. L. 116–283, div. A, title XVIII, §1806(b)(1), (3), Jan. 1, 2021, 134 Stat. 4153.)

Editorial Notes

Codification

The text of par. (2) of section 2302 of this title, which was transferred to this section and amended by Pub. L. 116–283, §1806(b)(3), was based on act Aug. 10, 1956, ch. 1041, 70A Stat. 127; Pub. L. 98–369, div. B, title VII, §2722(a), July 18, 1984, 98 Stat. 1186; Pub. L. 98–577, title V, §504(b)(3), Oct. 30, 1984, 98 Stat. 3087; Pub. L. 99–661, div. A, title XIII, §1343(a)(13), Nov. 14, 1986, 100 Stat. 3993; Pub. L. 100–26, §7(k)(2), Apr. 21, 1987, 101 Stat. 284; Pub. L. 107–217, §3(b)(2), Aug. 21, 2002, 116 Stat. 1295; Pub. L. 115–91, div. A, title II, §221, Dec. 12, 2017, 131 Stat. 1333.

Prior Provisions

A prior section 3012 was renumbered section 7012 of this title.

Another prior section 3012 was renumbered section 3013 of this title and subsequently repealed.

Amendments

2021—Pub. L. 116–283, §1806(b)(3), transferred par. (2) of section 2302 of this title to this section, realigned margin, struck out par. (2) designation at beginning, substituted "In this part, the term" for "The term" in introductory provisions, redesignated subpars. (A) to (E) as pars. (1) to (5), respectively, and, in par. (3), redesignated cls. (i) and (ii) as subpars. (A) and (B), respectively.

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.

§3013. Technical data

In any chapter 137 legacy provision, the term "technical data" means recorded information (regardless of the form or method of the recording) of a scientific or technical nature (including computer software documentation) relating to supplies procured by an agency. Such term does not include computer software or financial, administrative, cost or pricing, or management data or other information incidental to contract administration.

(Added and amended Pub. L. 116–283, div. A, title XVIII, §1806(b)(1), (4), Jan. 1, 2021, 134 Stat. 4153.)

Editorial Notes

Codification

The text of par. (4) of section 2302 of this title, which was transferred to this section and amended by Pub. L. 116–283, §1806(b)(4), was based on Pub. L. 98–525, title XII, §1211, Oct. 19, 1984, 98 Stat. 2589; Pub. L. 100–26, §7(k)(2), Apr. 21, 1987, 101 Stat. 284.

Prior Provisions

A prior section 3013 was renumbered section 7013 of this title.

Another prior section 3013, acts Aug. 10, 1956, ch. 1041, 70A Stat. 157, §3012; Sept. 2, 1958, Pub. L. 85–861, §1(57), 72 Stat. 1462; Sept. 7, 1962, Pub. L. 87–651, title II, §211, 76 Stat. 524; Aug. 14, 1964, Pub. L. 88–426, title III, §§305(2), 306(j)(1), 78 Stat. 422, 431; Nov. 2, 1966, Pub. L. 89–718, §22, 80 Stat. 1118; renumbered §3013, Oct. 1, 1986, Pub. L. 99–433, title V, §501(a)(2), 100 Stat. 1034, related to Secretary of the Army, powers and duties, and delegations, prior to repeal by Pub. L. 99–433, §501(a)(5).

Another prior section 3013 was renumbered section 3014 of this title and subsequently repealed.

Amendments

2021—Pub. L. 116–283, §1806(b)(4), transferred par. (4) of section 2302 of this title to this section, realigned margin, struck out par. (4) designation at beginning, and substituted "In any chapter 137 legacy provision, the term" for "The term".

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.

§3014. Nontraditional defense contractor

In this part, the term "nontraditional defense contractor", with respect to a procurement or with respect to a transaction authorized under section 4021(a) or 4022 of this title, means an entity that is not currently performing and has not performed, for at least the one-year period preceding the solicitation of sources by the Department of Defense for the procurement or transaction, any contract or subcontract for the Department of Defense that is subject to full coverage under the cost accounting standards prescribed pursuant to section 1502 of title 41 and the regulations implementing such section.

(Added and amended Pub. L. 116–283, div. A, title XVIII, §1806(b)(1), (5), Jan. 1, 2021, 134 Stat. 4153, 4154; Pub. L. 117–263, div. A, title X, §1081(a)(4), Dec. 23, 2022, 136 Stat. 2797.)

Editorial Notes

Codification

The text of par. (9) of section 2302 of this title, which was transferred to this section and amended by Pub. L. 116–283, §1806(b)(5), was based on Pub. L. 111–383, div. A, title VIII, §866(g)(1), Jan. 7, 2011, 124 Stat. 4298; Pub. L. 113–291, div. A, title X, §1071(a)(2)(B), Dec. 19, 2014, 128 Stat. 3504; Pub. L. 114–92, div. A, title VIII, §815(b), Nov. 25, 2015, 129 Stat. 896.

Prior Provisions

A prior section 3014 was renumbered section 7014 of this title.

Another prior section 3014, acts Aug. 10, 1956, ch. 1041, 70A Stat. 158, §3013; Aug. 6, 1958, Pub. L. 85–599, §8(a), 72 Stat. 519; Sept. 2, 1958, Pub. L. 85–861, §1(58), 72 Stat. 1462; Aug. 14, 1964, Pub. L. 88–426, title III, §305(3), 78 Stat. 422; Dec. 1, 1967, Pub. L. 90–168, §2(12), 81 Stat. 523; Dec. 31, 1970, Pub. L. 91–611, title II, §211(a), 84 Stat. 1829; Nov. 9, 1979, Pub. L. 96–107, title VIII, §820(b), 93 Stat. 819; Sept. 24, 1983, Pub. L. 98–94, title XII, §1212(c)(1), 97 Stat. 687; renumbered §3014, Oct. 1, 1986, Pub. L. 99–433, title V, §501(a)(2), 100 Stat. 1034, related to Under Secretary and Assistant Secretaries of the Army, appointment, and duties, prior to repeal by Pub. L. 99–433, §501(a)(5).

Another prior section 3014 was renumbered section 3015 of this title and subsequently repealed.

Amendments

2022—Pub. L. 117–263 substituted "section 4021(a) or 4022" for "section 4002(a) or 4003".

2021—Pub. L. 116–283, §1806(b)(5), transferred par. (9) of section 2302 of this title to this section, realigned margin, struck out par. (9) designation at beginning, and substituted "In this part, the term" for "The term" and "section 4002(a) or 4003" for "section 2371(a) or 2371b".

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.

§3015. Simplified acquisition threshold

In this part:

(1) The term "simplified acquisition threshold" has the meaning provided that term in section 134 of title 41, except that, in the case of any contract to be awarded and performed, or purchase to be made, outside the United States in support of a contingency operation or a humanitarian or peacekeeping operation, the term means an amount equal to two times the amount specified for that term in such section.

(2) The term "humanitarian or peacekeeping operation" means a military operation in support of the provision of humanitarian or foreign disaster assistance or in support of a peacekeeping operation under chapter VI or VII of the Charter of the United Nations. The term does not include routine training, force rotation, or stationing.

(Added and amended Pub. L. 116–283, div. A, title XVIII, §1806(b)(1), (6), Jan. 1, 2021, 134 Stat. 4153, 4154.)

Editorial Notes

Codification

The text of pars. (7) and (8) of section 2302 of this title, which were transferred to this section, redesignated as pars. (1) and (2), respectively, and amended by Pub. L. 116–283, §1806(b)(6), was based on Pub. L. 103–355, title I, §1502, Oct. 13, 1994, 108 Stat. 3296; Pub. L. 104–201, div. A, title VIII, §807(a), Sept. 23, 1996, 110 Stat. 2606; Pub. L. 105–85, div. A, title VIII, §803(b), Nov. 18, 1997, 111 Stat. 1832; Pub. L. 111–350, §5(b)(8)(C), Jan. 4, 2011, 124 Stat. 3843; Pub. L. 113–291, div. A, title X, §1071(a)(2)(A), Dec. 19, 2014, 128 Stat. 3504.

Prior Provisions

A prior section 3015 was renumbered section 7015 of this title.

Another prior section 3015, acts Aug. 10, 1956, ch. 1041, 70A Stat. 158, §3014; renumbered §3015, Oct. 1, 1986, Pub. L. 99–433, title V, §501(a)(2), 100 Stat. 1034, related to Comptroller and Deputy Comptroller of the Army, powers and duties, and appointment, prior to repeal by Pub. L. 99–433, §501(a)(5).

Another prior section 3015 was renumbered section 3040 of this title and subsequently repealed.

Amendments

2021—Pub. L. 116–283, §1806(b)(6), redesignated pars. (7) and (8) of section 2302 of this title as pars. (1) and (2), respectively, of this section and inserted introductory provisions.

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.

§3016. Chapter 137 legacy provisions

In this part, the term "chapter 137 legacy provisions" means the following sections of this title: sections 3002, 3004, 3011–3015, 3041, 3063–3069, 3134, 3151–3157, 3201–3208, 3221–3227, 3241, 3243, 3249, 3252, 3301–3309, 3321–3323, 3344, 3345, 3371–3375, 3377, 3401, 3403, 3405, 3406, 3501–3511, 3531–3535, 3571, 3572, 3573, 3701–3708, 3741–3750, 3761, 3771–3775, 3781–3786, 3791, 3794, 3801–3807, 3841, 3842, 3847, 3881, 3901, 3902, 4202(b), 4324, 4325, 4501, 4502, 4505, 4506, 4507, 4576, 4657, 4660, 4751, 4752, and 8751.

(Added Pub. L. 116–283, div. A, title XVIII, §1806(b)(7), Jan. 1, 2021, 134 Stat. 4154.)

Editorial Notes

Prior Provisions

A prior section 3016 was renumbered section 7016 of this title.

Another prior section 3016 was renumbered section 7018 of this title.

Prior sections 3017 and 3018 were renumbered sections 7017 and 7018 of this title, respectively.

Another prior section 3018, added Pub. L. 85–861, §1(59)(A), Sept. 2, 1958, 72 Stat. 1462, prescribed compensation of General Counsel of Department of the Army, prior to repeal by Pub. L. 88–426, title III, §305(40)(A), Aug. 14, 1964, 78 Stat. 427, eff. first day of first pay period beginning on or after July 1, 1964.

A prior section 3019 was renumbered section 7019 of this title.

Another prior section 3019 was renumbered section 7038 of this title.

A prior section 3020 was renumbered section 7020 of this title.

A prior section 3021 was renumbered section 7021 of this title.

Another prior section 3021 was renumbered section 10302 of this title.

Prior sections 3022 to 3024, 3031, and 3032 were renumbered sections 7022 to 7024, 7031, and 7032 of this title, respectively.

A prior section 3033 was renumbered section 7033 of this title.

Another prior section 3033 was renumbered section 10302 of this title.

A prior section 3034 was renumbered section 7034 of this title.

Another prior section 3034 was renumbered section 7033 of this title.

A prior section 3035 was renumbered section 7035 of this title.

Another prior section 3035 was renumbered section 7034 of this title.

Prior sections 3036 and 3037 were renumbered sections 7036 and 7037 of this title, respectively.

A prior section 3038 was renumbered section 7038 of this title.

Another prior section 3038, act Aug. 10, 1956, ch. 1041, 70A Stat. 164, charged Chief of Engineers with responsibility for Army construction, real estate acquisition and management, and the operation of water, gas, electric, and sewer utilities, prior to repeal by Pub. L. 89–718, §25(a), Nov. 2, 1966, 80 Stat. 1119.

A prior section 3039, act Aug. 10, 1956, ch. 1041, 70A Stat. 165, §3040; Pub. L. 95–485, title VIII, §805(a), Oct. 20, 1978, 92 Stat. 1621; renumbered §3039 and amended Pub. L. 99–433, title V, §502(f)(2), Oct. 1, 1986, 100 Stat. 1042, related to deputy and assistant chiefs of branches, prior to repeal by Pub. L. 114–328, div. A, title V, §502(n)(1), Dec. 23, 2016, 130 Stat. 2103.

Another prior section 3039, act Aug. 10, 1956, ch. 1041, 70A Stat. 164, related to Inspector General and Provost Marshal General, prior to repeal by Pub. L. 99–433, §502(f)(1). See section 7020 of this title.

A prior section 3040, acts Aug. 10, 1956, ch. 1041, 70A Stat. 159, §3015; Aug. 6, 1958, Pub. L. 85–599, §12, 72 Stat. 521; renumbered §3040, Oct. 1, 1986, Pub. L. 99–433, title V, §501(a)(1), 100 Stat. 1034; Sept. 29, 1988, Pub. L. 100–456, div. A, title XII, §1234(a)(1), 102 Stat. 2059, related to National Guard Bureau, Chief of Bureau, appointment and acting Chief, prior to repeal by Pub. L. 103–337, div. A, title IX, §904(b)(1), (d), Oct. 5, 1994, 108 Stat. 2827, effective at the end of the 90-day period beginning on Oct. 5, 1994. See sections 10501, 10502, and 10505 of this title.

Statutory Notes and Related Subsidiaries

Effective Date

Section 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.

SUBCHAPTER III—DEFINITIONS RELATING TO MAJOR SYSTEMS AND MAJOR DEFENSE ACQUISITION PROGRAMS

        

§3041. Major system

(a) In General.—In this part (other than in sections 4292(e) and 4321), the term "major system" means a combination of elements that will function together to produce the capabilities required to fulfill a mission need. The elements may include hardware, equipment, software or any combination thereof, but excludes construction or other improvements to real property.

(b) System Considered to Be a Major System.—A system shall be considered a major system if—

(1) the conditions of subsection (c) or (d), as applicable, are satisfied; or

(2) the system is designated a "major system" by the head of the agency responsible for the system.

(c) Department of Defense Systems.—

(1) In general.—For purposes of subsection (b), a system for which the Department of Defense is responsible shall be considered a major system if—

(A) the total expenditures for research, development, test, and evaluation for the system are estimated to be more than $115,000,000 (based on fiscal year 1990 constant dollars); or

(B) the eventual total expenditure for procurement for the system is estimated to be more than $540,000,000 (based on fiscal year 1990 constant dollars).

(2) Adjustment authority.—Authority for the Secretary of Defense to adjust amounts and the base fiscal year in effect under this subsection is provided in section 4202(b) of this title.

(d) Civilian Agency Systems.—For purposes of subsection (b), a system for which a civilian agency is responsible shall be considered a major system if total expenditures for the system are estimated to exceed the greater of—

(1) $750,000 (based on fiscal year 1980 constant dollars); or

(2) the dollar threshold for a "major system" established by the agency pursuant to Office of Management and Budget (OMB) Circular A–109, entitled "Major Systems Acquisitions".

(Added and amended Pub. L. 116–283, div. A, title XVIII, §1806(c), Jan. 1, 2021, 134 Stat. 4154.)

Editorial Notes

Codification

The text of par. (5) of section 2302 of this title, which was transferred to this section, redesignated as subsecs. (a) and (b), and amended by Pub. L. 116–283, §1806(c)(2), was based on Pub. L. 98–525, title XII, §1211, Oct. 19, 1984, 98 Stat. 2589; Pub. L. 100–26, §7(k)(2), Apr. 21, 1987, 101 Stat. 284; Pub. L. 104–201, div. A, title VIII, §805(a)(1), Sept. 23, 1996, 110 Stat. 2605.

The text of subsecs. (a) and (b) of section 2302d of this title, which were transferred to this section, redesignated as subsecs. (c) and (d), respectively, and amended by Pub. L. 116–283, §1806(c)(3), was based on Pub. L. 104–201, div. A, title VIII, §805(a)(2), Sept. 23, 1996, 110 Stat. 2605; Pub. L. 105–85, div. A, title X, §1073(a)(41), Nov. 18, 1997, 111 Stat. 1902.

Amendments

2021—Subsec. (a). Pub. L. 116–283, §1806(c)(2)(A), redesignated par. (5) of section 2302 of this title as subsec. (a) of this section, realigned margin, inserted heading, and substituted "In this part (other than in sections 4292(e) and 4321), the term" for "The term". Former third sentence of subsec. (a) designated (b).

Subsec. (b). Pub. L. 116–283, §1806(c)(2)(B), (C), after transfer of section 2302(5) of this title to subsec. (a) of this section, designated third sentence of subsec. (a) as (b), inserted heading, and substituted "system if—" and pars. (1) and (2) for "system if (A) the conditions of section 2302d of this title are satisfied, or (B) the system is designated a 'major system' by the head of the agency responsible for the system."

Subsec. (c). Pub. L. 116–283, §1806(c)(3), redesignated subsec. (a) of section 2302d of this title as subsec. (c) of this section, substituted "subsection (b)" for "section 2302(5) of this title" in introductory provisions, designated existing provisions as par. (1) and inserted heading, redesignated former pars. (1) and (2) as subpars. (A) and (B), respectively, and added par. (2).

Subsec. (d). Pub. L. 116–283, §1806(c)(3), redesignated subsec. (b) of section 2302d of this title as subsec. (d) of this section and substituted "subsection (b)" for "section 2302(5) of this title" in introductory provisions.

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.

§3042. Major defense acquisition program

For the definition of the term "major defense acquisition program" for purposes of this part, see section 4201 of this title.

(Added Pub. L. 116–283, div. A, title XVIII, §1806(c)(1), Jan. 1, 2021, 134 Stat. 4154.)

Editorial Notes

Prior Provisions

A prior section 3061 was renumbered section 7061 of this title.

Statutory Notes and Related Subsidiaries

Effective Date

Section 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.

CHAPTER 203—GENERAL MATTERS

        

Editorial Notes

Prior Provisions

A prior chapter 203 "GENERAL MATTERS", as added by Pub. L. 115–232, div. A, title VIII, §801(a), Aug. 13, 2018, 132 Stat. 1826, and consisting of reserved section 3021, was repealed by Pub. L. 116–283, div. A, title XVIII, §1807(a), Jan. 1, 2021, 134 Stat. 4156.

Amendments

2024—Pub. L. 118–159, div. A, title VIII, §813(b), Dec. 23, 2024, 138 Stat. 1980, substituted "Comptroller General assessment of acquisition programs and initiatives" for "Comptroller General assessment of acquisition programs and efforts" in item 3072.

2022—Pub. L. 117–263, div. A, title VIII, §812(b), Dec. 23, 2022, 136 Stat. 2706, substituted "efforts" for "initiatives" in item 3072.

2021—Pub. L. 117–81, div. A, title XVII, §1701(f)(3), Dec. 27, 2021, 135 Stat. 2139, inserted "of" after "Applicability" in item 3064.

Statutory Notes and Related Subsidiaries

Internal Controls for Department of Defense Procurements Through GSA Client Support Centers

Pub. L. 108–375, div. A, title VIII, §802, Oct. 28, 2004, 118 Stat. 2004, as amended by Pub. L. 109–313, §2(c)(2), Oct. 6, 2006, 120 Stat. 1735; Pub. L. 116–92, div. A, title IX, §902(38), Dec. 20, 2019, 133 Stat. 1547, provided that:

"(a) Initial Inspector General Review and Determination.—(1) Not later than March 15, 2005, the Inspector General of the Department of Defense and the Inspector General of the General Services Administration shall jointly—

"(A) review—

"(i) the policies, procedures, and internal controls of each GSA Client Support Center; and

"(ii) the administration of those policies, procedures, and internal controls; and

"(B) for each such Center, determine in writing whether—

"(i) the Center is compliant with defense procurement requirements;

"(ii) the Center is not compliant with defense procurement requirements, but the Center made significant progress during 2004 toward becoming compliant with defense procurement requirements; or

"(iii) neither of the conclusions stated in clauses (i) and (ii) is correct.

"(2) If the Inspectors General determine under paragraph (1) that the conclusion stated in clause (ii) or (iii) of subparagraph (B) of such paragraph is correct in the case of a GSA Client Support Center, those Inspectors General shall, not later than March 15, 2006, jointly—

"(A) conduct a second review regarding that GSA Client Support Center as described in paragraph (1)(A); and

"(B) determine in writing whether that GSA Client Support Center is or is not compliant with defense procurement requirements.

"(b) Compliance With Defense Procurement Requirements.—For the purposes of this section, a GSA Client Support Center is compliant with defense procurement requirements if the GSA Client Support Center's policies, procedures, and internal controls, and the manner in which they are administered, are adequate to ensure compliance of that Center with the requirements of laws and regulations that apply to procurements of property and services made directly by the Department of Defense.

"(c) Limitations on Procurements Through GSA Client Support Centers.—(1) After March 15, 2005, and before March 16, 2006, no official of the Department of Defense may, except as provided in subsection (d) or (e), order, purchase, or otherwise procure property or services in an amount in excess of $100,000 through any GSA Client Support Center for which a determination described in paragraph (1)(B)(iii) of subsection (a) has been made under that subsection.

"(2) After March 15, 2006, no official of the Department of Defense may, except as provided in subsection (d) or (e), order, purchase, or otherwise procure property or services in an amount in excess of $100,000 through any GSA Client Support Center that has not been determined under this section as being compliant with defense procurement requirements.

"(d) Exception From Applicability of Limitations.—(1) No limitation applies under subsection (c) with respect to the procurement of property and services from a particular GSA Client Support Center during any period that there is in effect a determination of the Under Secretary of Defense for Acquisition and Sustainment, made in writing, that it is necessary in the interest of the Department of Defense to continue to procure property and services through that GSA Client Support Center.

"(2) A written determination with respect to a GSA Client Support Center under paragraph (1) is in effect for the period, not in excess of one year, that the Under Secretary of Defense for Acquisition and Sustainment shall specify in the written determination. The Under Secretary may extend from time to time, for up to one year at a time, the period for which the written determination remains in effect.

"(e) Termination of Applicability of Limitations.—Subsection (c) shall cease to apply to a GSA Client Support Center on the date on which the Inspector General of the Department of Defense and the Inspector General of the General Services Administration jointly determine that such Center is compliant with defense procurement requirements and notify the Secretary of Defense of that determination.

"(f) GSA Client Support Center Defined.—In this section, the term 'GSA Client Support Center' means a Client Support Center of the Federal Acquisition Service of the General Services Administration."

§3062. Regulations

The Secretary of Defense is required by section 2202 of this title to prescribe regulations governing the performance within the Department of Defense of the procurement functions, and related functions, of the Department of Defense.

(Added Pub. L. 116–283, div. A, title XVIII, §1807(b)(1), Jan. 1, 2021, 134 Stat. 4157; amended Pub. L. 117–81, div. A, title XVII, §1701(b)(2)(A), (j), Dec. 27, 2021, 135 Stat. 2132, 2143.)

Editorial Notes

Prior Provisions

A prior section 3062 was renumbered section 7062 of this title.

Amendments

2021—Pub. L. 117–81, §1701(j), amended text of section enacted by Pub. L. 116–283, §1807(b)(1), by substituting "is required by section 2202 of this title to prescribe" for "shall prescribe".

Pub. L. 117–81, §1701(b)(2)(A), amended directory language of Pub. L. 116–283, §1807(b)(1), which enacted this section.

Statutory Notes and Related Subsidiaries

Effective Date of 2021 Amendment

Amendment by Pub. L. 117–81 applicable as if included in the enactment of title XVIII of Pub. L. 116–283 as enacted, see section 1701(a)(2) of Pub. L. 117–81, set out in a note preceding section 3001 of this title and Effective Date note below.

Effective Date

Section 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.

Pilot Program on Military Working Dog and Explosives Detection Canine Health and Excellence

Pub. L. 117–81, div. A, title III, §381, Dec. 27, 2021, 135 Stat. 1671, as amended by Pub. L. 117–263, div. A, title III, §386(a), Dec. 23, 2022, 136 Stat. 2544, provided that:

"(a) Pilot Program.—Not later than September 31, 2022, the Secretary of Defense shall carry out a pilot program to ensure the health and excellence of explosives detection military working dogs. Under such pilot program, the Secretary shall consult with domestic breeders of working dog lines, covered institutions of higher education, and covered national domestic canine associations, to—

"(1) facilitate the presentation, both in a central location and at regional field evaluations in the United States, of domestically-bred explosives detection military working dogs for assessment for procurement by the Department of Defense, at a rate of at least 250 canines presented per fiscal year;

"(2) facilitate the delivery and communication to domestic breeders, covered institutions of higher education, and covered national domestic canine associations, of information regarding—

"(A) any specific needs or requirements for the future acquisition by the Department of explosives detection military working dogs; and

"(B) any factors identified as relevant to the success or failure of explosives detection military working dogs presented for assessment pursuant to this section;

"(3) collect information on the biological and health factors of explosives detection military working dogs procured by the Department, and make such information available for academic research and to domestic breeders;

"(4) collect and make available genetic and phenotypic information, including canine rearing and training data for study by domestic breeders and covered institutions of higher education, for the further development of working canines that are bred, raised, and trained domestically; and

"(5) evaluate current Department guidance for the procurement of military working dogs to ensure that pricing structures and procurement requirements for foreign and domestic canine procurements accurately account for input cost differences between foreign and domestic canines.

"(b) Termination.—The authority to carry out the pilot program under subsection (a) shall terminate on October 1, 2025.

"(c) Definitions.—In this section:

"(1) The term 'covered institution of higher education' means an institution of higher education, as such term is defined in section 101 of the Higher Education Act of 1965 (20 U.S.C. 1001), with demonstrated expertise in veterinary medicine for working canines.

"(2) The term 'covered national domestic canine association' means a national domestic canine association with demonstrated expertise in the breeding and pedigree of working canine lines.

"(3) The term 'explosives detection military working dog' means a canine that, in connection with the work duties of the canine performed for the Department of Defense, is certified and trained to detect odors indicating the presence of explosives in a given object or area, in addition to the performance of such other duties for the Department as may be assigned."

Restriction on Department of Defense Procurement of Certain Items Containing Perfluorooctane Sulfonate or Perfluorooctanoic Acid

Pub. L. 116–283, div. A, title III, §333, Jan. 1, 2021, 134 Stat. 3531, provided that:

"(a) Prohibition.—The Department of Defense may not procure any covered item that contains perfluorooctane sulfonate (PFOS) or perfluorooctanoic acid (PFOA).

"(b) Definitions.—In this section, the term 'covered item' means—

"(1) nonstick cookware or cooking utensils for use in galleys or dining facilities; and

"(2) upholstered furniture, carpets, and rugs that have been treated with stain-resistant coatings.

"(c) Effective Date.—This section shall take effect on April 1, 2023."

§3063. Covered agencies

For purposes of any provision of law referring to this section, the agencies named in this section are the following:

(1) The Department of Defense.

(2) The Department of the Army.

(3) The Department of the Navy.

(4) The Department of the Air Force.

(5) The Coast Guard.

(6) The National Aeronautics and Space Administration.

(Added and amended Pub. L. 116–283, div. A, title XVIII, §1807(c)(1), (2), Jan. 1, 2021, 134 Stat. 4157.)

Editorial Notes

Codification

The text of pars. (1) to (6) of section 2303(a) of this title, which were transferred to this section by Pub. L. 116–283, §1807(c)(2), was based on act Aug. 10, 1956, ch. 1041, 70A Stat. 128; Pub. L. 85–568, title III, §301(b), July 29, 1958, 72 Stat. 432; Pub. L. 98–369, div. B, title VII, §2722(b)(1)(C), (D), July 18, 1984, 98 Stat. 1187.

Prior Provisions

A prior section 3063 was renumbered section 7063 of this title.

Amendments

2021—Pars. (1) to (6). Pub. L. 116–283, §1807(c)(2), transferred pars. (1) to (6) of section 2303(a) of this title to this section.

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.

§3064. Applicability of chapter 137 legacy provisions

(a) General Applicability.—Any provision of this part that is a chapter 137 legacy provision applies to the procurement by any of the agencies named in section 3063 of this title, for its use or otherwise, of all property (other than land) and all services for which payment is to be made from appropriated funds.

(b) Applicability to Contracts for Installation or Alteration.—The provisions of this part that are chapter 137 legacy provisions that apply to the procurement of property apply also to contracts for its installation or alteration.

(Added and amended Pub. L. 116–283, div. A, title XVIII, §1807(c)(1), (3), Jan. 1, 2021, 134 Stat. 4157; Pub. L. 117–81, div. A, title XVII, §1701(b)(2)(B), Dec. 27, 2021, 135 Stat. 2132.)

Editorial Notes

Codification

The text of subsec. (a) introductory provisions and subsec. (b) of section 2303 of this title, which were transferred to this section and amended by Pub. L. 116–283, §1807(c)(3), was based on act Aug. 10, 1956, ch. 1041, 70A Stat. 128; Pub. L. 98–369, div. B, title VII, §2722(b)(1)(A), (B), (3), July 18, 1984, 98 Stat. 1187.

Prior Provisions

A prior section 3064 was renumbered section 7064 of this title.

Amendments

2021—Pub. L. 116–283, §1807(c)(3), transferred introductory provisions of subsec. (a) and subsec. (b) of section 2303 of this title to this section.

Subsec. (a). Pub. L. 116–283, §1807(c)(3)(A), as amended by Pub. L. 117–81, §1701(b)(2)(B), inserted heading and substituted "Any provision of this part that is a chapter 137 legacy provision" for "This chapter", "of the agencies named in section 3063 of this title" for "of the following agencies", and period for colon at end.

Subsec. (b). Pub. L. 116–283, §1807(c)(3)(B), inserted heading and substituted "The provisions of this part that are chapter 137 legacy provisions" for "The provisions of this chapter".

Statutory Notes and Related Subsidiaries

Effective Date of 2021 Amendment

Amendment by Pub. L. 117–81 applicable as if included in the enactment of title XVIII of Pub. L. 116–283 as enacted, see section 1701(a)(2) of Pub. L. 117–81, set out in a note preceding section 3001 of this title and Effective Date note below.

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.

§3065. Assignment and delegation of procurement functions and responsibilities: delegation within agency

Except to the extent expressly prohibited by another provision of law, the head of an agency may delegate, subject to his direction, to any other officer or official of that agency, any power under any provision of this part that is a chapter 137 legacy provision.

(Aug. 10, 1956, ch. 1041, 70A Stat. 132, §2311; Pub. L. 85–800, §11, Aug. 28, 1958, 72 Stat. 967; Pub. L. 87–653, §1(g), Sept. 10, 1962, 76 Stat. 529; Pub. L. 90–378, §3, July 5, 1968, 82 Stat. 290; Pub. L. 97–86, title IX, §§907(c), 909(f), Dec. 1, 1981, 95 Stat. 1117, 1120; Pub. L. 98–369, div. B, title VII, §2726, July 18, 1984, 98 Stat. 1194; Pub. L. 98–525, title XII, §1214, Oct. 19, 1984, 98 Stat. 2592; Pub. L. 98–577, title V, §505, Oct. 30, 1984, 98 Stat. 3087; Pub. L. 103–355, title I, §1503(a)(1), Oct. 13, 1994, 108 Stat. 3296; Pub. L. 107–107, div. A, title X, §1048(b)(2), Dec. 28, 2001, 115 Stat. 1225; Pub. L. 116–92, div. A, title IX, §902(49), Dec. 20, 2019, 133 Stat. 1548; renumbered §3065 and amended Pub. L. 116–283, div. A, title XVIII, §1807(d)(1), (2)(A)–(C), (3), Jan. 1, 2021, 134 Stat. 4157, 4158.)

Historical and Revision Notes

Revised section	Source (U.S. Code)	Source (Statutes at Large)
2311	41:156(a) (less 1st sentence). 41:156(b).	Feb. 19, 1948, ch. 65, §7(a) (less 1st sentence), (b), 62 Stat. 24.

The words "in his discretion and" and "including the making of such determinations and decisions" are omitted as surplusage. The words "except the power to make determinations and decisions" are substituted for the words "Except as provided in subsection (b) of this section" and "The power of the agency head to make the determinations or decisions specified in paragraphs (12)–(16) of section 151(c) of this title and in section 154(a) of this title shall not be delegable".

Editorial Notes

Prior Provisions

A prior section 3065 was renumbered section 7065 of this title.

Provisions similar to those in this section were contained in section 2308 of this title prior to repeal by Pub. L. 103–355, §1503(b)(1).

Amendments

2021—Pub. L. 116–283, §1807(d)(2)(C), (3), in section catchline, substituted "Assignment and delegation of procurement functions and responsibilities: delegation within agency" for "Emergency situations involving weapons of mass destruction" and, in text, struck out subsec. (a) designation and heading "In General" at beginning, and substituted "under any provision of this part that is a chapter 137 legacy provision" for "under this chapter".

Pub. L. 116–283, §1807(d)(1), renumbered section 2311 of this title as this section.

Subsecs. (b), (c). Pub. L. 116–283, §1807(d)(2)(A), (B), transferred subsecs. (b) and (c) of this section to sections 3066 and 3067 of this title, respectively.

2019—Subsec. (c)(1), (2)(B). Pub. L. 116–92 substituted "Under Secretary of Defense for Acquisition and Sustainment" for "Under Secretary of Defense for Acquisition, Technology, and Logistics".

2001—Subsec. (c)(1), (2)(B). Pub. L. 107–107 substituted "Under Secretary of Defense for Acquisition, Technology, and Logistics" for "Under Secretary of Defense for Acquisition and Technology".

1994—Pub. L. 103–355 substituted "Assignment and delegation of procurement functions and responsibilities" for "Delegation" as section catchline and amended text generally. Prior to amendment, text read as follows: "Except as provided in section 2304(d)(2) of this title, the head of an agency may delegate, subject to his direction, to any other officer or official of that agency, any power under this chapter."

1984—Pub. L. 98–577 struck out "(a)" before "Except as provided in" and struck out subsec. (b) which related to delegation of authority by heads of procuring activities of agencies of certain functions.

Pub. L. 98–525 designated existing provisions as subsec. (a) and added subsec. (b).

Pub. L. 98–369 inserted provision relating to the exception provided in section 2304(d)(2) of this title and struck out provision that the power to make determinations and decisions under cls. (11)–(16) of section 2304(a) of this title could not be delegated, but that the power to make a determination or decision under section 2304(a)(11) of this title could be delegated to any other officer of official of that agency who was responsible for procurement, and only for contracts requiring the expenditure of not more than $5,000,000.

1981—Pub. L. 97–86 struck out in first sentence cl. (1) designation and cl. (2) relating to authorizing of contracts in excess of three years under section 2306(g) of this title, and in second sentence substituted "$5,000,000" for "$100,000".

1968—Pub. L. 90–378 designated provisions after "the power to make determinations and decisions" as cl. (1) and added cl. (2).

1962—Pub. L. 87–653 substituted "delegated to any other officer" for "delegated only to a chief officer" and "$100,000" for "$25,000".

1958—Pub. L. 85–800 struck out ", or section 2307(a)" after "of section 2304(a)" in first sentence.

Statutory Notes and Related Subsidiaries

Effective Date of 2021 Amendment

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 a note preceding section 3001 of this title.

Effective Date of 1994 Amendment

For effective date and applicability of amendment by Pub. L. 103–355, see section 10001 of Pub. L. 103–355, set out as a note under section 8752 of this title.

Effective Date of 1984 Amendment

Amendment by Pub. L. 98–369 applicable with respect to any solicitation for bids or proposals issued after Mar. 31, 1985, see section 2751 of Pub. L. 98–369, set out as a note under section 4751 of this title.

Effective Date of 1962 Amendment

Pub. L. 87–653, §1(h), Sept. 10, 1962, 76 Stat. 529, provided that: "The amendments made by this Act [amending this section and sections 2304, 2306, and 2310 (now 4751) of this title] shall take effect on the first day of the third calendar month which begins after the date of enactment of this Act [Sept. 10, 1962]."

§3066. Assignment and delegation of procurement functions and responsibilities: procurements for or with other agencies

Subject to section 3065 of this title, to facilitate the procurement of property and services covered by any provision of this part that is a chapter 137 legacy provision by each agency named in section 3063 of this title for any other agency, and to facilitate joint procurement by those agencies—

(1) the head of an agency may delegate functions and assign responsibilities relating to procurement to any officer or employee within such agency;

(2) the heads of two or more agencies may by agreement delegate procurement functions and assign procurement responsibilities from one agency to another of those agencies or to an officer or civilian employee of another of those agencies; and

(3) the heads of two or more agencies may create joint or combined offices to exercise procurement functions and responsibilities.

(Added and amended Pub. L. 116–283, div. A, title XVIII, §1807(d)(2)(A), (D), Jan. 1, 2021, 134 Stat. 4158.)

Editorial Notes

Codification

The text of subsec. (b) of section 2311 of this title, which was transferred first to section 3065(b) of this title and then to this section and amended by Pub. L. 116–283, §1807(d)(1), (2)(A), (D), was based on Pub. L. 103–355, title I, §1503(a)(1), Oct. 13, 1994, 108 Stat. 3296.

Prior Provisions

A prior section 3066, acts Aug. 10, 1956, ch. 1041, 70A Stat. 167; Sept. 2, 1958, Pub. L. 85–861, §33(a)(19), 72 Stat. 1565, authorized President, by and with consent of Senate, to make temporary appointments in grades of general and lieutenant general from officers of Army on active duty in any grade above brigadier general and specified number of positions in each such grade, prior to repeal by Pub. L. 96–513, title II, §201, title VII, §701, Dec. 12, 1980, 94 Stat. 2878, 2955, effective Sept. 15, 1981. See section 601 of this title.

Amendments

2021—Pub. L. 116–283, §1807(d)(2)(D), transferred subsec. (b) of section 3065 of this title to this section, and, in introductory provisions, struck out subsec. (b) designation and heading "Procurements For or With Other Agencies" at beginning and substituted "Subject to section 3065 of this title" for "Subject to subsection (a)", "covered by any provision of this part that is a chapter 137 legacy provision" for "covered by this chapter", and "section 3063" for "section 2303".

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.

§3067. Approval required for military department termination or reduction in participation in joint acquisition programs

(a) Approval of Terminations and Reductions of Joint Acquisition Programs.—The Secretary of Defense shall prescribe regulations that prohibit each military department participating in a joint acquisition program approved by the Under Secretary of Defense for Acquisition and Sustainment from terminating or substantially reducing its participation in such program without the approval of the Under Secretary.

(b) Required Content of Regulations.—The regulations shall include the following provisions:

(1) A requirement that, before any such termination or substantial reduction in participation is approved, the proposed termination or reduction be reviewed by the Joint Requirements Oversight Council of the Department of Defense.

(2) A provision that authorizes the Under Secretary of Defense for Acquisition and Sustainment to require a military department whose participation in a joint acquisition program has been approved for termination or substantial reduction to continue to provide some or all of the funding necessary for the acquisition program to be continued in an efficient manner.

(Added and amended Pub. L. 116–283, div. A, title XVIII, §1807(d)(2)(B), (E), Jan. 1, 2021, 134 Stat. 4158.)

Editorial Notes

Codification

The text of subsec. (c) of section 2311 of this title, which was transferred first to section 3065(c) of this title and then to this section and amended by Pub. L. 116–283, §1807(d)(1), (2)(B), (E), was based on Pub. L. 103–355, title I, §1503(a)(1), Oct. 13, 1994, 108 Stat. 3296; Pub. L. 107–107, div. A, title X, §1048(b)(2), Dec. 28, 2001, 115 Stat. 1225; Pub. L. 116–92, div. A, title IX, §902(49), Dec. 20, 2019, 133 Stat. 1548.

Prior Provisions

A prior section 3067 was renumbered section 7067 of this title.

Amendments

2021—Pub. L. 116–283, §1807(d)(2)(E), redesignated subsec. (c) of section 3065 of this title as subsec. (a) of this section, struck out par. (1) designation before "The Secretary of Defense shall", redesignated par. (2) and its subpars. (A) and (B) as subsec. (b) and pars. (1) and (2), respectively, and inserted subsec. (b) heading.

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.

§3068. Inapplicability of certain laws

(a) Laws Inapplicable to Agencies Named in Section 3063.—Sections 6101 and 6304 of title 41 do not apply to the procurement or sale of property or services by the agencies named in section 3063 of this title.

(b) Laws Inapplicable to Procurement of Automatic Data Processing Equipment and Services for Certain Defense Purposes.—For purposes of subtitle III of title 40, the term "national security system", with respect to a telecommunications and information system operated by the Department of Defense, has the meaning given that term by section 3552(b)(6) of title 44.

(Added and amended Pub. L. 116–283, div. A, title XVIII, §1807(e)(1)–(3), Jan. 1, 2021, 134 Stat. 4158, 4159; Pub. L. 117–81, div. A, title XVII, §1701(b)(2)(C), Dec. 27, 2021, 135 Stat. 2132.)

Editorial Notes

Codification

The text of section 2314 of this title, which was transferred to this section, designated as subsec. (a), and amended by Pub. L. 116–283, §1807(e)(2), was based on act Aug. 10, 1956, ch. 1041, 70A Stat. 133; Pub. L. 96–513, title V, §511(78), Dec. 12, 1980, 94 Stat. 2927; Pub. L. 103–160, div. A, title VIII, §822(b)(2), Nov. 30, 1993, 107 Stat. 1706; Pub. L. 111–350, §5(b)(16), Jan. 4, 2011, 124 Stat. 3843; Pub. L. 113–291, div. A, title X, §1071(a)(4), Dec. 19, 2014, 128 Stat. 3504.

The text of section 2315 of this title, which was transferred to this section, designated as subsec. (b), and amended by Pub. L. 116–283, §1807(e)(3), was based on Pub. L. 97–86, title IX, §908(a)(1), Dec. 1, 1981, 95 Stat. 1117; amended Pub. L. 97–295, §1(25), Oct. 12, 1982, 96 Stat. 1291; Pub. L. 104–106, div. E, title LVI, §5601(c), Feb. 10, 1996, 110 Stat. 699; Pub. L. 104–201, div. A, title X, §1074(b)(4)(B), Sept. 23, 1996, 110 Stat. 2660; Pub. L. 105–85, div. A, title X, §1073(a)(49), Nov. 18, 1997, 111 Stat. 1903; Pub. L. 107–217, §3(b)(5), Aug. 21, 2002, 116 Stat. 1295; Pub. L. 109–364, div. A, title IX, §906(c), Oct. 17, 2006, 120 Stat. 2354; Pub. L. 113–283, §2(e)(5)(C), Dec. 18, 2014, 128 Stat. 3087; Pub. L. 114–92, div. A, title X, §1081(a)(7), Nov. 25, 2015, 129 Stat. 1001.

Prior Provisions

A prior section 3068 was renumbered section 7068 of this title.

Another prior section 3068, acts Aug. 10, 1956, ch. 1041, 70A Stat. 168; Sept. 7, 1962, Pub. L. 87–649, §6(a)(1), 76 Stat. 494, contained substantially the same provisions as section 7068, which formerly was numbered as section 3068, but placed the upper limit for the rank of officers of the Medical Service Corps at colonel, prior to repeal by Pub. L. 89–603.

Amendments

2021—Subsec. (a). Pub. L. 116–283, §1807(e)(2), as amended by Pub. L. 117–81, §1701(b)(2)(C)(i), transferred text of section 2314 of this title to this section, designated it as subsec. (a), inserted heading, and substituted "section 3063" for "section 2303".

Subsec. (b). Pub. L. 116–283, §1807(e)(3), as amended by Pub. L. 117–81, §1701(b)(2)(C)(ii), transferred text of section 2315 of this title to this section, designated it as subsec. (b), and inserted heading.

Statutory Notes and Related Subsidiaries

Effective Date of 2021 Amendment

Amendment by Pub. L. 117–81 applicable as if included in the enactment of title XVIII of Pub. L. 116–283 as enacted, see section 1701(a)(2) of Pub. L. 117–81, set out in a note preceding section 3001 of this title and Effective Date note below.

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.

§3069. Buy-to-budget acquisition: end items

(a) Authority To Acquire Additional End Items.—Using funds available to the Department of Defense for the acquisition of an end item, the head of an agency making the acquisition may acquire a higher quantity of the end item than the quantity specified for the end item in a law providing for the funding of that acquisition if that head of an agency makes each of the following findings:

(1) The agency has an established requirement for the end item that is expected to remain substantially unchanged throughout the period of the acquisition.

(2) It is possible to acquire the higher quantity of the end item without additional funding because of production efficiencies or other cost reductions.

(3) The amount of the funds used for the acquisition of the higher quantity of the end item will not exceed the amount provided under that law for the acquisition of the end item.

(4) The amount so provided is sufficient to ensure that each unit of the end item acquired within the higher quantity is fully funded as a complete end item.

(b) Regulations.—The Secretary of Defense shall prescribe regulations for the administration of this section. The regulations shall include, at a minimum, the following:

(1) The level of approval within the Department of Defense that is required for a decision to acquire a higher quantity of an end item under subsection (a).

(2) Authority (subject to subsection (a)) to acquire up to 10 percent more than the quantity of an end item approved in a justification and approval of the use of procedures other than competitive procedures for the acquisition of the end item under sections 3201 through 3205 of this title.

(c) Notification of Congress.—(1) The head of an agency is not required to notify Congress in advance regarding a decision under the authority of this section to acquire a higher quantity of an end item than is specified in a law described in subsection (a), but, except as provided in paragraph (2), shall notify the congressional defense committees of the decision not later than 30 days after the date of the decision.

(2) A notification is not required under paragraph (1) if the end item being acquired in a higher quantity is an end item under a tactical missile program or a munitions program.

(d) Waiver by Other Law.—A provision of law may not be construed as prohibiting the acquisition of a higher quantity of an end item under this section unless that provision of law—

(1) specifically refers to this section; and

(2) specifically states that the acquisition of the higher quantity of the end item is prohibited notwithstanding the authority provided in this section.

(e) Definitions.—(1) For the purposes of this section, a quantity of an end item shall be considered specified in a law if the quantity is specified either in a provision of that law or in any related representation that is set forth separately in a table, chart, or explanatory text included in a joint explanatory statement or governing committee report accompanying the law.

(2) In this section:

(A) The term "end item" means a production product assembled, completed, and ready for issue or deployment.

(B) The term "head of an agency" means the Secretary of Defense, the Secretary of the Army, the Secretary of the Navy, and the Secretary of the Air Force.

(Added Pub. L. 107–314, div. A, title VIII, §801(a)(1), Dec. 2, 2002, 116 Stat. 2600, §2308; amended Pub. L. 108–136, div. A, title X, §1043(b)(11), Nov. 24, 2003, 117 Stat. 1611; Pub. L. 114–328, div. A, title VIII, §852, Dec. 23, 2016, 130 Stat. 2296; renumbered §3069 and amended Pub. L. 116–283, div. A, title XVIII, §1807(f), Jan. 1, 2021, 134 Stat. 4159.)

Editorial Notes

Prior Provisions

A prior section 3069 was renumbered section 7069 of this title.

Amendments

2021—Pub. L. 116–283 renumbered section 2308 of this title as this section.

Subsec. (b)(2). Pub. L. 116–283 substituted "sections 3201 through 3205" for "section 2304".

2016—Subsec. (c). Pub. L. 114–328 designated existing provisions as par. (1), inserted ", except as provided in paragraph (2)," after "but", and added par. (2).

2003—Subsec. (e)(2). Pub. L. 108–136 redesignated subpars. (B) and (C) as (A) and (B), respectively, and struck out former subpar. (A) which read as follows: "The term 'congressional defense committees' means—

"(i) the Committee on Armed Services and the Committee on Appropriations of the Senate; and

"(ii) the Committee on Armed Services and the Committee on Appropriations of the House of Representatives."

Statutory Notes and Related Subsidiaries

Effective Date of 2021 Amendment

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 a note preceding section 3001 of this title.

§3070. Limitation on acquisition of excess supplies

(a) Two-Year Supply.—The Secretary of Defense may not incur any obligation against a stock fund of the Department of Defense for the acquisition of any item of supply if that acquisition is likely to result in an on-hand inventory (excluding war reserves) of that item of supply in excess of two years of operating stocks, or in the case of ship maintenance, overhaul, and repair, in excess of five years of operating stocks.

(b) Exceptions.—The head of a procuring activity may authorize the acquisition of an item of supply in excess of the limitation contained in subsection (a) if that activity head determines in writing—

(1) that the acquisition is necessary to achieve an economical order quantity and will not result in an on-hand inventory (excluding war reserves) in excess of three years of operating stocks and that the need for the item is unlikely to decline during the period for which the acquisition is made; or

(2) that the acquisition is necessary for purposes of maintaining the industrial base, to protect against identified risk of supply chain disruptions, or for other reasons of national security.

(Added Pub. L. 102–190, div. A, title III, §317(a), Dec. 5, 1991, 105 Stat. 1338, §2213; renumbered §3070, Pub. L. 116–283, div. A, title XVIII, §1807(g)(1), Jan. 1, 2021, 134 Stat. 4159; amended Pub. L. 118–159, div. A, title VIII, §812, Dec. 23, 2024, 138 Stat. 1979.)

Editorial Notes

Prior Provisions

A prior section 3070 was renumbered section 7070 of this title.

A prior section 3071, acts Aug. 10, 1956, ch. 1041, 70A Stat. 169; Sept. 7, 1962, Pub. L. 87–649, §6(a)(2), (3), 76 Stat. 494; Nov. 8, 1967, Pub. L. 90–130, §1(8)(C), 81 Stat. 374, prescribed composition of Women's Army Corps and provided for a Director, a Deputy Director, and other positions for Women's Army Corps, prior to repeal by Pub. L. 95–485, title VIII, §820(b), Oct. 20, 1978, 92 Stat. 1627.

Amendments

2024—Subsec. (a). Pub. L. 118–159, §812(1), inserted ", or in the case of ship maintenance, overhaul, and repair, in excess of five years of operating stocks" after "in excess of two years of operating stocks".

Subsec. (b)(2). Pub. L. 118–159, §812(2), inserted ", to protect against identified risk of supply chain disruptions," before "or for other reasons of national security".

2021—Pub. L. 116–283 renumbered section 2213 of this title as this section.

Statutory Notes and Related Subsidiaries

Effective Date of 2021 Amendment

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 a note preceding section 3001 of this title.

§3072. Comptroller General assessment of acquisition programs and initiatives

(a) Assessment Required.—The Comptroller General of the United States shall submit to the congressional defense committees an annual assessment of selected acquisition programs and initiatives of the Department of Defense by March 30th of each year from 2020 through 2029.

(b) Analyses To Be Included.—The assessment required under subsection (a) shall include—

(1) a macro analysis of how well acquisition programs and initiatives are performing and reasons for that performance;

(2) specific analyses of individual acquisition programs and initiatives; and

(3) other issues as determined appropriate by the Comptroller General.

(c) Acquisition Programs and Efforts ¹ to Be Considered.—The assessment required under subsection (a) shall consider the following programs and initiatives:

(1) Selected weapon systems, as determined appropriate by the Comptroller General.

(2) Selected information technology systems and initiatives, including defense business systems, networks, and software-intensive systems, as determined appropriate by the Comptroller General.

(3) Selected prototyping and rapid fielding activities and initiatives, as determined appropriate by the Comptroller General.

(Added Pub. L. 115–232, div. A, title VIII, §833(a), Aug. 13, 2018, 132 Stat. 1858, §2229b; renumbered §3072 and amended Pub. L. 116–283, div. A, title VIII, §813, title XVIII, §1807(g)(1), Jan. 1, 2021, 134 Stat. 3749, 4159; Pub. L. 117–263, div. A, title VIII, §812(a), Dec. 23, 2022, 136 Stat. 2706; Pub. L. 118–159, div. A, title VIII, §813(a), Dec. 23, 2024, 138 Stat. 1980.)

Editorial Notes

Prior Provisions

Prior sections 3072 to 3075 were renumbered sections 7072 to 7075 of this title, respectively.

Prior sections 3076 to 3080 were repealed by Pub. L. 103–337, div. A, title XVI, §§1661(a)(3)(A), 1691, Oct. 5, 1994, 108 Stat. 2980, 3026, effective Dec. 1, 1994, except as otherwise provided.

Section 3076, act Aug. 10, 1956, ch. 1041, 70A Stat. 170, related to composition of Army Reserve. See section 10104 of this title.

Section 3077, act Aug. 10, 1956, ch. 1041, 70A Stat. 170, related to composition of Army National Guard of United States. See section 10105 of this title.

Section 3078, act Aug. 10, 1956, ch. 1041, 70A Stat. 171, provided that Army National Guard is a component of Army while in service of United States. See section 10106 of this title.

Section 3079, act Aug. 10, 1956, ch. 1041, 70A Stat. 171, related to status of Army National Guard of United States when not in Federal service. See section 10107 of this title.

Section 3080, added Pub. L. 86–603, §1(2)(A), July 7, 1960, 74 Stat. 357, related to authority of officers of Army National Guard of United States with respect to Federal status. See section 10215 of this title.

Prior sections 3081, 3082, 3083, and 3084 were renumbered sections 7081, 10542, 7083, and 7084 of this title, respectively.

Amendments

2024—Pub. L. 118–159, §813(a)(1), (2), substituted "initiatives" for "efforts" in section catchline and wherever appearing in text.

Subsec. (a). Pub. L. 118–159, §813(a)(3), substituted "2029" for "2026".

Subsec. (b)(2), (3). Pub. L. 118–159, §813(a)(4), added par. (3), redesignated former par. (3) as (2), and struck out former par. (2) which read as follows: "a discussion of selected organizational, policy, and legislative changes, as determined appropriate by the Comptroller General, and the potential implications for execution and oversight of programs and efforts; and".

2022—Pub. L. 117–263, §812(a)(1), (2), substituted "efforts" for "initiatives" in section catchline and wherever appearing in text.

Subsec. (a). Pub. L. 117–263, §812(a)(3), substituted "through 2026" for "through 2023".

Subsec. (c). Pub. L. 117–263, §812(a)(4), substituted "Efforts" for "Initiatives" in heading.

2021—Pub. L. 116–283, §1807(g)(1), renumbered section 2229b of this title as this section.

Subsec. (b)(2). Pub. L. 116–283, §813, substituted "a discussion of selected organizational, policy, and legislative changes, as determined appropriate by the Comptroller General, and the potential" for "a summary of organizational and legislative changes and emerging assessment methodologies since the last assessment, and a discussion of the".

Statutory Notes and Related Subsidiaries

Effective Date of 2021 Amendment

Amendment by section 1807(g)(1) of 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 a note preceding section 3001 of this title.

¹ So in original. Probably should be "Initiatives".

CHAPTER 205—DEFENSE ACQUISITION SYSTEM

        

Editorial Notes

Prior Provisions

A prior chapter 205 "DEFENSE ACQUISITION SYSTEM", as added by Pub. L. 115–232, div. A, title VIII, §801(a), Aug. 13, 2018, 132 Stat. 1826, and consisting of reserved section 3051, was repealed by Pub. L. 116–283, div. A, title XVIII, §1808(a)(1), Jan. 1, 2021, 134 Stat. 4159.

Amendments

2023—Pub. L. 118–31, div. A, title XVIII, §1801(a)(25), Dec. 22, 2023, 137 Stat. 684, inserted period at end of item 3106.

2021—Pub. L. 116–283, div. A, title XVIII, §§1808(a)(1), (3)(B), (c)(3), Jan. 1, 2021, 134 Stat. 4159, 4160, transferred chapter 149 of this title to this chapter, renumbered items 2545, 2546, 2546a, 2547, and 2548 as 3101, 3103, 3102, 3104, and 3105, respectively, moved item 3102 so as to follow item 3101, added items 3105 and 3106, and struck out former item 3105 (as renumbered from 2548) "Performance assessments of the defense acquisition system".

Statutory Notes and Related Subsidiaries

Management and Utilization of Digital Data To Enhance Maintenance Activities

Pub. L. 118–159, div. A, title II, §233, Dec. 23, 2024, 138 Stat. 1838, provided that:

"(a) Policies Required.—Not later than one year after the date of the enactment of this Act [Dec. 23, 2024], the Under Secretary of Defense for Acquisition and Sustainment, in consultation with the Secretaries of the military departments and the Chief Digital and Artificial Intelligence Officer of the Department of Defense, shall develop and implement policies to manage and utilize data derived from digital data systems for aircraft, ships, and ground vehicles to inform and support maintenance activities conducted with respect to such aircraft, ships, and vehicles.

"(b) Elements.—The policies required by subsection (a) shall include investment in advanced and scalable data infrastructure to efficiently record, transmit, categorize, and otherwise process data generated by digital data systems described in such subsection. Such policies shall—

"(1) require development of a strategy to invest in advanced technologies, including automated systems and artificial intelligence, to streamline the process of organizing, indexing, and categorizing data;

"(2) require work with vendors to address and resolve limitations imposed by proprietary information and data, including through the adoption of open data and open mission systems approaches;

"(3) address data transmission capabilities, such as—

"(A) implementing high-speed data transfer technologies;

"(B) optimizing network infrastructure; and

"(C) developing secure and efficient methods for transmitting mission-critical data between bases;

"(4) require central compilation of maintenance data and creation of user interfaces, prioritizing analysis of long-lead components;

"(5) require the use of vendor-agnostic, government-owned tagging and interoperable systems, except in cases where there is a compelling reason not to use such systems;

"(6) require review of classification policies relating to digital data to ensure that data is appropriately classified without unnecessarily restricting its usability; and

"(7) establish protocols for detecting unauthorized access or intrusion into vehicle or platform systems.

"(c) Briefing.—Not later than one year after the date of the enactment of this Act, the Under Secretary of Defense for Acquisition and Sustainment shall provide to the Committees on Armed Services of the Senate and the House of Representatives a briefing on—

"(1) the policies developed under subsection (a); and

"(2) the status of the implementation of such policies."

Modernizing the Department of Defense Requirements Process

Pub. L. 118–31, div. A, title VIII, §811, Dec. 22, 2023, 137 Stat. 321, provided that:

"(a) Modernizing the Department of Defense Requirements Process.—Not later than October 1, 2025, the Secretary of Defense, acting through the Vice Chairman of the Joint Chiefs of Staff, in coordination with the Secretaries of the military departments and the commanders of the combatant commands, and in consultation with the Under Secretary of Defense for Acquisition and Sustainment, shall develop and implement a streamlined requirements development process for the Department of Defense, to include revising the Joint Capabilities Integration and Development System, in order to improve alignment between modern warfare concepts, technologies, and system development and reduce the time to deliver needed capabilities to warfighters.

"(b) Reform Elements.—The process required by subsection (a) shall—

"(1) streamline requirements documents, reviews, and approval processes, focusing on programs below the major defense acquisition program threshold described in section 4201 of title 10, United States Code;

"(2) revise requirements management practices using a clean-sheet approach that avoids prescriptive language, is based on mission outcomes and assessed threats, enables a more iterative and collaborative approach with the Armed Forces, maximizes the use of commercial products or commercial services in accordance with section 3453 of title 10, United States Code, and allows for a broader range of new or alternative technological opportunities to be incorporated without the requirement being validated again;

"(3) develop a capability needs and requirements framework and pathways that are aligned to the pathways of the adaptive acquisition framework (as described in Department of Defense Instruction 5000.02, 'Operation of the Adaptive Acquisition Framework'), and better aligned and integrated with the science and technology development processes of the Department;

"(4) provide continuity to the acquisition and research programs of the military departments by enabling the military departments to develop, with respect to collections of capabilities grouped by function by the Department of Defense, sets of requirements that are designed to remain applicable to programs and systems relating to such capabilities over substantial periods of time;

"(5) require the military departments to—

"(A) articulate in a concise model and document with a set of mission impact measures the sets of requirements developed under paragraph (4); and

"(B) seek to continuously improve the capabilities subject to such sets of requirements the acquisition of additional capabilities;

"(6) establish a process to rapidly validate the ability of commercial products and services to meet capability needs or opportunities;

"(7) retire and replace the Department of Defense Architecture Framework with a new structure focused on enabling interoperability through application program interfaces, enterprise architectures and platforms, and government and commercial standards; and

"(8) ensure that requirements processes for software, artificial intelligence, data, and related capability areas enable a more rapid, dynamic, and iterative approach than the requirements processes for traditional hardware systems.

"(c) Elements.—With respect to the implementation of the process required by subsection (a), the Vice Chairman of the Joint Chiefs of Staff shall—

"(1) collaborate with industry partners, contractors of the Department and nontraditional defense contractors (as defined in section 3014 of title 10, United States Code), and Department of Defense science and technology reinvention laboratories (as designated under section 4121(b) of title 10, United States Code) regarding the development of the streamlined requirements development process under subsection (a) to ensure such process effectively uses the innovation ecosystem (as defined in section 236(g) of the James M. Inhofe National Defense Authorization Act for Fiscal Year 2023 [Pub. L. 117–263] (10 U.S.C. 4001 note));

"(2) develop a formal career path, training, and structure for requirements managers; and

"(3) publish new policies, guidance, and templates for the operational, requirements, and acquisition workforces online in digital formats.

"(d) Interim Report.—Not later than October 1, 2024, the Secretary of Defense shall submit to the congressional defense committees [Committees on Armed Services and Appropriations of the Senate and the House of Representatives] a report on the development and implementation of the process required by subsection (a), including—

"(1) a description of the efforts to develop and implement the streamlined requirements development process under subsection (a);

"(2) the plans of the Department of Defense to implement, communicate, and continuously improve the requirements development process required by subsection (a); and

"(3) any additional recommendations for legislation that the Secretary determines appropriate.

"(e) Final Report.—Not later than October 1, 2025, the Secretary of Defense shall submit to the congressional defense committees a report describing activities carried out pursuant to this section."

Digital Modernization of Analytical and Decision-Support Processes for Managing and Overseeing Department of Defense Acquisition Programs

Pub. L. 116–283, div. A, title VIII, §836, Jan. 1, 2021, 134 Stat. 3756, provided that:

"(a) Digital Data Management and Analytics Capabilities.—

"(1) In general.—The Secretary of Defense shall iteratively develop and integrate advanced digital data management and analytics capabilities, consistent with private sector best practices, that—

"(A) integrate all aspects of the defense acquisition system, including the development of capability requirements, research, design, development, testing, evaluation, acquisition, management, operations, and sustainment of systems;

"(B) facilitate the management and analysis of all relevant data generated during the development of capability requirements, research, design, development, testing, evaluation, acquisition, operations, and sustainment of systems;

"(C) enable the use of such data to inform further development, acquisition, management and oversight of such systems, including portfolio management; and

"(D) include software capabilities to collect, transport, organize, manage, make available, and analyze relevant data throughout the life cycle of defense acquisition programs, including any data needed to support individual and portfolio management of acquisition programs.

"(2) Requirements.—The capabilities developed under paragraph (1) shall—

"(A) be accessible to, and useable by, individuals throughout the Department of Defense who have responsibilities relating to activities described in clauses (A) through (C) of paragraph (1);

"(B) enable the development, use, curation, and maintenance of original form and real-time digital systems by—

"(i) ensuring shared access to data within the Department;

"(ii) supplying data to digital engineering models for use in the defense acquisition, sustainment, and portfolio management processes; and

"(iii) supplying data to testing infrastructure and software to support automated approaches for testing, evaluation, and deployment throughout the defense acquisition, sustainment, and portfolio management processes; and

"(C) feature—

"(i) improved data management and sharing processes;

"(ii) timely, high-quality, transparent, and actionable analyses; and

"(iii) analytical models and simulations.

"(3) Enabling data infrastructure, tools, and processes.—In developing the capability required under paragraph (1), the Secretary of Defense shall—

"(A) move supporting processes and the data associated with such processes from analog to digital format, including planning and reporting processes;

"(B) make new and legacy data more accessible to, and usable by, appropriate employees and contractors (at any tier) of the Department of Defense and members of the Armed Forces, including through migration of program and other documentation into digital formats;

"(C) modernize the query, collection, storage, retrieval, reporting, and analysis capabilities for stakeholders within the Department, including research entities, Program Management Offices, analytic organizations, oversight staff, and decision makers;

"(D) automate data collection and storage to minimize or eliminate manual data entry or manual reporting;

"(E) enable employees and other appropriate users to access data from all relevant data sources, including through—

"(i) streamlining data access privileges;

"(ii) sharing of appropriate data between and among Federal Government and contractor information systems; and

"(iii) enabling timely and continuous data collection and sharing from all appropriate personnel, including contractors;

"(F) modernize existing enterprise information systems to enable interoperability consistent with technical best practices; and

"(G) provide capabilities and platforms to enable continuous development and integration of software using public and private sector best practices.

"(b) Portfolio Management.—The Secretary of Defense shall establish capabilities for robust, effective, and data-driven portfolio management described in subsection (a)(1)(C), using the capability established in this section, to improve the Department of Defense-wide assessment, management, and optimization of the investments in weapon systems of the Department, including through consolidation of duplicate or similar weapon system programs.

"(c) Demonstration Activities.—

"(1) In general.—The Secretary of Defense shall carry out activities to demonstrate the capability required under subsection (a).

"(2) Activity selection.—Not later than July 15, 2021, the Secretary of Defense shall select decision support processes and individual acquisition programs to participate in the demonstration activities under paragraph (1), including—

"(A) decision support processes, including—

"(i) portfolio management as described in subsection (b);

"(ii) one or more acquisition data management test cases; and

"(iii) one or more development and test modeling and simulation test cases to demonstrate the ability to collect data from tests and operations in the field, and feed the data back into models and simulations for better software development and testing;

"(B) individual acquisition programs representing—

"(i) one or more defense business systems;

"(ii) one or more command and control systems;

"(iii) one or more middle tier of acquisition programs;

"(iv) programs featuring a cost-plus contract type, and a fixed-price contract type, and a transaction authorized under section 2371 [now 10 U.S.C. 4021] or 2371b [now 10 U.S.C. 4022] of title 10, United States Code; and

"(v) at least one program in each military department.

"(3) Execution of demonstration activities.—As part of the demonstration activities under paragraph (1), the Secretary shall—

"(A) conduct a comparative analysis that assesses the risks and benefits of the digital management and analytics capability used in each of the programs participating in the demonstration activities relative to the traditional data collection, reporting, exposing, and analysis approaches of the Department;

"(B) ensure that the intellectual property strategy for each of the programs participating in the demonstration activities is best aligned to meet the goals of the program; and

"(C) develop a workforce and infrastructure plan to support any new policies and guidance implemented in connection with the demonstration activities, including any policies and guidance implemented after the completion of such activities.

"(d) Policies and Guidance Required.—Not later than March 15, 2022, based on the results of the demonstration activities carried out under subsection (c), the Secretary of Defense shall issue or modify policies and guidance to—

"(1) promote the use of digital data management and analytics capabilities; and

"(2) address roles, responsibilities, and procedures relating to such capabilities.

"(e) Steering Committee.—

"(1) In general.—The Secretary of Defense shall establish a steering committee to assist the Secretary in carrying out subsections (a) through (c).

"(2) Membership.—The steering committee shall be composed of the following members or their designees:

"(A) The Deputy Secretary of Defense.

"(B) The Chief Information Officer.

"(C) The Director of Cost Assessment and Program Evaluation.

"(D) The Under Secretary of Defense for Research and Engineering.

"(E) The Under Secretary of Defense for Acquisition and Sustainment.

"(F) The Director of Operational Test and Evaluation.

"(G) The Service Acquisition Executives.

"(H) The Director for Force Structure, Resources, and Assessment of the Joint Staff.

"(I) The Director of the Defense Digital Service.

"(J) Such other officials of the Department of Defense as the Secretary determines appropriate.

"(f) Independent Assessments.—

"(1) Initial assessment.—

"(A) In general.—The Defense Innovation Board, in consultation with the Defense Digital Service, shall conduct an independent assessment and cost-benefits analysis to identify recommended approaches for the implementation of subsections (a) through (c).

"(B) Elements.—The assessment under subparagraph (A) shall include the following:

"(i) A plan for the development and implementation of the capabilities required under subsection (a), including a plan for any procurement that may be required as part of such development and implementation.

"(ii) An independent cost assessment of the total estimated cost of developing and implementing the capability, as well as an assessment of any potential cost savings.

"(iii) An independent estimate of the schedule for the development approach, and order of priorities for implementation of the capability, including a reasonable estimate of the dates on which the capability can be expected to achieve initial operational capability and full operational capability, respectively.

"(iv) A recommendation identifying the office or other organization of the Department of Defense that would be most appropriate to manage and execute the capability.

"(C) Report.—Not later than July 15, 2021, the Defense Innovation Board, in consultation with the Defense Digital Service, shall submit to the Secretary of Defense and the congressional defense committees [Committees on Armed Services and Appropriations of the Senate and the House of Representatives] a report on the findings of the assessment under subparagraph (A), including the findings of the assessment with respect to each element specified in subparagraph (B).

"(2) Second assessment.—

"(A) In general.—Not later than March 15, 2023, the Defense Innovation Board and the Defense Science Board shall jointly complete an independent assessment of the progress of the Secretary in implementing subsections (a) through (c). The Secretary of Defense shall ensure that the Defense Innovation Board and the Defense Science Board have access to the resources, data, and information necessary to complete the assessment.

"(B) Information to congress.—Not later than 30 days after the date on which the assessment under subparagraph (A) is completed, the Defense Innovation Board and the Defense Science Board shall jointly provide to the congressional defense committees—

"(i) a report summarizing the assessment; and

"(ii) a briefing on the findings of the assessment.

"(g) Demonstrations and Briefing.—

"(1) Demonstration of implementation.—Not later than October 20, 2021, the Secretary of Defense shall submit to the congressional defense committees a demonstration and briefing on the progress of the Secretary in implementing subsections (a) through (c). The briefing shall include an explanation of how the results of the demonstration activities carried out under subsection (c) will be incorporated into the policy and guidance required under subsection (d), particularly the policy and guidance of the members of the steering committee established under subsection (e).

"(2) Briefing on legislative recommendations.—Not later than February 1, 2022, the Secretary of Defense shall submit to the Committees on Armed Services of the Senate and of the House of Representatives a briefing that identifies any changes to existing law that may be necessary to facilitate the implementation of subsections (a) through (c).

"(3) Demonstration of portfolio management.—In conjunction with the budget of the President for fiscal year 2023 (as submitted to Congress under section 1105(a) of title 21 [probably should be title "31"], United States Code), the Deputy Secretary of Defense shall schedule a demonstration of the portfolio management capability developed under subsection (b) with the congressional defense committees."

Prototype Projects To Digitize Defense Acquisition Regulations, Policies, and Guidance, and Empower User Tailoring of Acquisition Process

Pub. L. 115–91, div. A, title VIII, §868, Dec. 12, 2017, 131 Stat. 1495, provided that:

"(a) In General.—The Secretary of Defense, acting through the Under Secretary of Defense for Research and Engineering, shall conduct development efforts to develop prototypes to digitize defense acquisition regulations, policies, and guidance and to develop a digital decision support tool that facilitates the ability of users to tailor programs in accordance with existing laws, regulations, and guidance.

"(b) Elements.—Under the prototype projects, the Secretary shall—

"(1) convert existing acquisition policies, guides, memos, templates, and reports to an online, interactive digital format to create a dynamic, integrated, and authoritative knowledge environment for purposes of assisting program managers and the acquisition workforce of the Department of Defense to navigate the complex lifecycle for each major type of acquisition program or activity of the Department;

"(2) as part of this digital environment, create a digital decision support capability that uses decision trees and tailored acquisition models to assist users to develop strategies and facilitate coordination and approvals; and

"(3) as part of this environment, establish a foundational data layer to enable advanced data analytics on the acquisition enterprise of the Department, to include business process reengineering to improve productivity.

"(c) Use of Prototypes in Acquisition Activities.—The Under Secretary of Defense for Research and Engineering shall encourage the use of these prototypes to model, develop, and test any procedures, policies, instructions, or other forms of direction and guidance that may be required to support acquisition training, practices, and policies of the Department of Defense.

"(d) Funding.—The Secretary may use the authority under section 1705(e)(4)(B) of title 10, United States Code, to develop acquisition support prototypes and tools under this program."

Software Development Pilot Program Using Agile Best Practices

Pub. L. 115–91, div. A, title VIII, §874, Dec. 12, 2017, 131 Stat. 1500, provided that:

"(a) In General.—Not later than 30 days after the date of the enactment of this Act [Dec. 12, 2017], the Secretary of Defense shall identify no fewer than four and up to eight software development activities within the Department of Defense or military departments to be developed in a pilot program using agile acquisition methods.

"(b) Streamlined Processes.—Software development activities identified under subsection (a) shall be selected for the pilot program and developed without incorporation of the following contract or transaction requirements:

"(1) Earned value management (EVM) or EVM-like reporting.

"(2) Development of integrated master schedule.

"(3) Development of integrated master plan.

"(4) Development of technical requirement document.

"(5) Development of systems requirement documents.

"(6) Use of information technology infrastructure library agreements.

"(7) Use of software development life cycle (methodology).

"(c) Roles and Responsibilities.—

"(1) In general.—Selected activities shall include the following roles and responsibilities:

"(A) A program manager that is authorized to make all programmatic decisions within the overarching activity objectives, including resources, funding, personnel, and contract or transaction termination recommendations.

"(B) A product owner that reports directly to the program manager and is responsible for the overall design of the product, prioritization of roadmap elements and interpretation of their acceptance criteria, and prioritization of the list of all features desired in the product.

"(C) An engineering lead that reports directly to the program manager and is responsible for the implementation and operation of the software.

"(D) A design lead that reports directly to the program manager and is responsible for identifying, communicating, and visualizing user needs through a human-centered design process.

"(2) Qualifications.—The Secretary shall establish qualifications for personnel filling the positions described in paragraph (1) prior to their selection. The qualifications may not include a positive education requirement and must be based on technical expertise or experience in delivery of software products, including agile concepts.

"(3) Coordination plan for testing and certification organizations.—The program manager shall ensure the availability of resources for test and certification organizations support of iterative development processes.

"(d) Plan.—The Secretary of Defense shall develop a plan for each selected activity under the pilot program. The plan shall include the following elements:

"(1) Definition of a product vision, identifying a succinct, clearly defined need the software will address.

"(2) Definition of a product road map, outlining a noncontractual plan that identifies short-term and long-term product goals and specific technology solutions to help meet those goals and adjusts to mission and user needs at the product owner's discretion.

"(3) The use of a broad agency announcement, other transaction authority, or other rapid merit-based solicitation procedure.

"(4) Identification of, and continuous engagement with, end users.

"(5) Frequent and iterative end user validation of features and usability consistent with the principles outlined in the Digital Services Playbook of the U.S. Digital Service.

"(6) Use of commercial best practices for advanced computing systems, including, where applicable—

"(A) Automated testing, integration, and deployment;

"(B) compliance with applicable commercial accessibility standards;

"(C) capability to support modern versions of multiple, common web browsers;

"(D) capability to be viewable across commonly used end user devices, including mobile devices; and

"(E) built-in application monitoring.

"(e) Program Schedule.—The Secretary shall ensure that each selected activity includes—

"(1) award processes that take no longer than three months after a requirement is identified;

"(2) planned frequent and iterative end user validation of implemented features and their usability;

"(3) delivery of a functional prototype or minimally viable product in three months or less from award; and

"(4) follow-on delivery of iterative development cycles no longer than four weeks apart, including security testing and configuration management as applicable.

"(f) Oversight Metrics.—The Secretary shall ensure that the selected activities—

"(1) use a modern tracking tool to execute requirements backlog tracking; and

"(2) use agile development metrics that, at a minimum, track—

"(A) pace of work accomplishment;

"(B) completeness of scope of testing activities (such as code coverage, fault tolerance, and boundary testing);

"(C) product quality attributes (such as major and minor defects and measures of key performance attributes and quality attributes);

"(D) delivery progress relative to the current product roadmap; and

"(E) goals for each iteration.

"(g) Restrictions.—

"(1) Use of funds.—No funds made available for the selected activities may be expended on estimation or evaluation using source lines of code methodologies.

"(2) Contract types.—The Secretary of Defense may not use lowest price technically acceptable contracting methods or cost plus contracts to carry out selected activities under this section, and shall encourage the use of existing streamlined and flexible contracting arrangements.

"(h) Reports.—

"(1) Software development activity commencement.—

"(A) In general.—Not later than 30 days before the commencement of a software development activity under the pilot program under subsection (a), the Secretary shall submit to the congressional defense committees [Committees on Armed Services and Appropriations of the Senate and the House of Representatives] a report on the activity (in this subsection referred to as a 'pilot activity').

"(B) Elements.—The report on a pilot activity under this paragraph shall set forth a description of the pilot activity, including the following information:

"(i) The purpose of the pilot activity.

"(ii) The duration of the pilot activity.

"(iii) The efficiencies and benefits anticipated to accrue to the Government under the pilot program.

"(2) Software development activity completion.—

"(A) In general.—Not later than 60 days after the completion of a pilot activity, the Secretary shall submit to the congressional defense committees a report on the pilot activity.

"(B) Elements.—The report on a pilot activity under this paragraph shall include the following elements:

"(i) A description of results of the pilot activity.

"(ii) Such recommendations for legislative or administrative action as the Secretary considers appropriate in light of the pilot activity.

"(i) Definitions.—In this section:

"(1) Agile acquisition.—The term 'agile acquisition' means acquisition using agile or iterative development.

"(2) Agile or iterative development.—The term 'agile or iterative development', with respect to software—

"(A) means acquisition pursuant to a method for delivering multiple, rapid, incremental capabilities to the user for operational use, evaluation, and feedback not exclusively linked to any single, proprietary method or process; and

"(B) involves—

"(i) the incremental development and fielding of capabilities, commonly called 'spirals', 'spins', or 'sprints', which can be measured in a few weeks or months; and

"(ii) continuous participation and collaboration by users, testers, and requirements authorities."

Establishment of Set of Activities That Use Data Analysis, Measurement, and Other Evaluation-Related Methods To Improve Acquisition Program Outcomes

Pub. L. 115–91, div. A, title IX, §913, Dec. 12, 2017, 131 Stat. 1523, as amended by Pub. L. 115–232, div. A, title X, §1081(c)(2), Aug. 13, 2018, 132 Stat. 1985; Pub. L. 118–159, div. A, title XVII, §1701(d)(2), Dec. 23, 2024, 138 Stat. 2207, provided that:

"(a) Establishment Required.—Not later than one year after the date of the enactment of this Act [Dec. 12, 2017], the Secretary of Defense shall establish a set of activities that use data analysis, measurement, and other evaluation-related methods to improve the acquisition outcomes of the Department of Defense and enhance organizational learning.

"(b) Types of Activities.—The set of activities established under subsection (a) may include any or all of the following:

"(1) Establishment of data analytics capabilities and organizations within an Armed Force.

"(2) Development of capabilities in Department of Defense laboratories, test centers, and federally funded research and development centers to provide technical support for data analytics activities that support acquisition program management and business process re-engineering activities.

"(3) Increased use of existing analytical capabilities available to acquisition programs and offices to support improved acquisition outcomes.

"(4) Funding of intramural and extramural research and development activities to develop and implement data analytics capabilities in support of improved acquisition outcomes.

"(5) Publication, to the maximum extent practicable, and in a manner that protects classified and proprietary information, of data collected by the Department of Defense related to acquisition program costs and activities for access and analyses by the general public or Department research and education organizations.

"(6) Promulgation by the Chief of Staff of the Army, the Chief of Naval Operations, the Chief of Staff of the Air Force, the Chief of Space Operations, and the Commandant of the Marine Corps, in coordination with the Deputy Secretary of Defense, the Under Secretary of Defense for Research and Engineering, and the Under Secretary for Acquisition and Sustainment, of a consistent policy as to the role of data analytics in establishing budgets and making milestone decisions for major defense acquisition programs.

"(7) Continual assessment, in consultation with the private sector, of the efficiency of current data collection and analyses processes, so as to minimize the requirement for collection and delivery of data by, from, and to Government organizations.

"(8) Promulgation of guidance to acquisition programs and activities on the efficient use, quality, and sharing of enterprise data between programs and organizations to improve acquisition program analytics and outcomes.

"(9) Establishment of focused research and educational activities at the Defense Acquisition University, and appropriate private sector academic institutions, to support enhanced use of data management, data analytics, and other evaluation-related methods to improve acquisition outcomes."

[Pub. L. 115–232, div. A, title X, §1081(c), Aug. 13, 2018, 132 Stat. 1985, provided that the amendment made by section 1081(c)(2) to section 913 of Pub. L. 115–91, set out above, is effective as of Dec. 12, 2017, and as if included in Pub. L. 115–91 as enacted.]

Review of Time-Based Requirements Process and Budgeting and Acquisition Systems

Pub. L. 114–92, div. A, title VIII, §810, Nov. 25, 2015, 129 Stat. 890, provided that:

"(a) Time-based Requirements Process.—The Secretary of Defense and the Chairman of the Joint Chiefs of Staff shall review the requirements process with the goal of establishing an agile and streamlined system that develops requirements that provide stability and foundational direction for acquisition programs and shall determine the advisability of providing a time-based or phased distinction between capabilities needed to be deployed urgently, within 2 years, within 5 years, and longer than 5 years.

"(b) Budgeting and Acquisition Systems.—The Secretary of Defense shall review and ensure that the acquisition and budgeting systems are structured to meet time-based or phased requirements in a manner that is predictable, cost effective, and efficient and takes advantage of emerging technological developments."

§3101. Definitions

In this chapter, the term "acquisition" has the meaning provided in section 131 of title 41.

(Added Pub. L. 111–383, div. A, title VIII, §861(a), Jan. 7, 2011, 124 Stat. 4288, §2545; amended Pub. L. 113–291, div. A, title X, §1071(a)(11), Dec. 19, 2014, 128 Stat. 3505; renumbered §3101 and amended Pub. L. 116–283, div. A, title XVIII, §1808(a)(2), (b)(1), Jan. 1, 2021, 134 Stat. 4159, 4160.)

Editorial Notes

Codification

Section 2545 of this title, which was transferred to this section by Pub. L. 116–283, §1808(a)(2), was also transferred or copied in large part to section 3001 of this title by Pub. L. 116–283, §1806(a)(2)–(4).

Amendments

2021—Pub. L. 116–283, §1808(b)(1), substituted "In this chapter, the term" for "In this chapter:", par. (1) designation, and "The term" and struck out pars. (2) to (4) which defined "defense acquisition system", "element of the defense acquisition system", and "acquisition workforce".

Pub. L. 116–283, §1808(a)(2), renumbered section 2545 of this title as this section.

2014—Par. (1). Pub. L. 113–291 substituted "section 131 of title 41" for "section 4(16) of the Office of Federal Procurement Policy Act (41 U.S.C. 403(16))".

Statutory Notes and Related Subsidiaries

Effective Date of 2021 Amendment

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 a note preceding section 3001 of this title.

§3102. Customer-oriented acquisition system

(a) Objective.—It shall be the objective of the defense acquisition system to meet the needs of its customers in the most cost-effective manner practicable. The acquisition policies, directives, and regulations of the Department of Defense shall be modified as necessary to ensure the development and implementation of a customer-oriented acquisition system.

(b) Customer.—The customer of the defense acquisition system is the armed force that will have primary responsibility for fielding the system or systems acquired. The customer is represented with regard to a major defense acquisition program by the Secretary of the military department concerned and the Chief of the armed force concerned.

(c) Role of Customer.—The customer of a major defense acquisition program shall be responsible for balancing resources against priorities on the acquisition program and ensuring that appropriate trade-offs are made among cost, schedule, technical feasibility, and performance on a continuing basis throughout the life of the acquisition program.

(Added Pub. L. 114–92, div. A, title VIII, §802(a)(1), Nov. 25, 2015, 129 Stat. 878, §2546a; renumbered §3102 and amended Pub. L. 116–283, div. A, title XVIII, §1808(a)(2), (3)(A), Jan. 1, 2021, 134 Stat. 4159.)

Editorial Notes

Amendments

2021—Pub. L. 116–283 renumbered section 2546a of this title as this section and transferred it so as to appear after section 3101 of this title. Directory language transferring this section "within such section" was executed as if it had read "within such chapter", meaning chapter 205 of this title, to reflect the probable intent of Congress.

Statutory Notes and Related Subsidiaries

Effective Date of 2021 Amendment

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 a note preceding section 3001 of this title.

Consideration of Trade-Offs Among Cost, Schedule, and Performance Objectives in Department of Defense Acquisition Programs

Pub. L. 111–23, title II, §201(a), May 22, 2009, 123 Stat. 1719, provided that:

"(1) In general.—The Secretary of Defense shall ensure that mechanisms are developed and implemented to require consideration of trade-offs among cost, schedule, and performance objectives as part of the process for developing requirements for Department of Defense acquisition programs.

"(2) Elements.—The mechanisms required under this subsection shall ensure, at a minimum, that—

"(A) Department of Defense officials responsible for acquisition, budget, and cost estimating functions are provided an appropriate opportunity to develop estimates and raise cost and schedule matters before performance objectives are established for capabilities for which the Chairman of the Joint Requirements Oversight Council is the validation authority; and

"(B) the process for developing requirements is structured to enable incremental, evolutionary, or spiral acquisition approaches, including the deferral of technologies that are not yet mature and capabilities that are likely to significantly increase costs or delay production until later increments or spirals."

§3103. Civilian management of the defense acquisition system

(a) Responsibility of the Under Secretary of Defense for Acquisition and Sustainment.—Subject to the authority, direction and control of the Secretary of Defense, the Under Secretary of Defense for Acquisition and Sustainment shall be responsible for the management of the defense acquisition system and shall exercise such control of the system and perform such duties as are necessary to ensure the successful and efficient operation of the defense acquisition system, including the duties enumerated and assigned to the Under Secretary elsewhere in this title.

(b) Responsibility of the Service Acquisition Executives.—Subject to the direction of the Under Secretary of Defense for Acquisition and Sustainment on matters pertaining to acquisition, and subject to the authority, direction, and control of the Secretary of the military department concerned, a service acquisition executive of a military department shall be responsible for the management of elements of the defense acquisition system in that military department and shall exercise such control of the system and perform such duties as are necessary to ensure the successful and efficient operation of such elements of the defense acquisition system.

(Added Pub. L. 111–383, div. A, title VIII, §861(a), Jan. 7, 2011, 124 Stat. 4288, §2546; amended Pub. L. 116–92, div. A, title IX, §902(78), Dec. 20, 2019, 133 Stat. 1552; renumbered §3103, Pub. L. 116–283, div. A, title XVIII, §1808(a)(2), Jan. 1, 2021, 134 Stat. 4159.)

Editorial Notes

Amendments

2021—Pub. L. 116–283 renumbered section 2546 of this title as this section.

2019—Subsec. (a). Pub. L. 116–92, §902(78)(A), (B), substituted "Under Secretary of Defense for Acquisition and Sustainment" for "Under Secretary of Defense for Acquisition, Technology, and Logistics" in heading and text.

Subsec. (b). Pub. L. 116–92, §902(78)(C), substituted "Under Secretary of Defense for Acquisition and Sustainment" for "Under Secretary of Defense for Acquisition, Technology, and Logistics".

Statutory Notes and Related Subsidiaries

Effective Date of 2021 Amendment

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 a note preceding section 3001 of this title.

§3104. Acquisition-related functions of chiefs of the armed forces

(a) Performance of Certain Acquisition-related Functions.—The Secretary of Defense shall ensure that the Chief of Staff of the Army, the Chief of Naval Operations, the Chief of Staff of the Air Force, the Commandant of the Marine Corps, and the Chief of Space Operations assist the Secretary of the military department concerned in the performance of the following acquisition-related functions of such department:

(1) The development of requirements for equipping the armed force concerned (subject, where appropriate, to validation by the Joint Requirements Oversight Council pursuant to section 181 of this title).

(2) Decisions regarding the balancing of resources and priorities, and associated trade-offs among cost, schedule, technical feasibility, and performance on major defense acquisition programs.

(3) The coordination of measures to control requirements creep in the defense acquisition system.

(4) The recommendation of trade-offs among life-cycle cost, schedule, and performance objectives, and procurement quantity objectives, to ensure acquisition programs deliver best value in meeting the approved military requirements.

(5) Termination of development or procurement programs for which life-cycle cost, schedule, and performance expectations are no longer consistent with approved military requirements and levels of priority, or which no longer have approved military requirements.

(6) The development and management of career paths in acquisition for military personnel (as required by section 1722a of this title).

(7) The assignment and training of contracting officer representatives when such representatives are required to be members of the armed forces because of the nature of the contract concerned.

(b) Adherence to Requirements in Major Defense Acquisition Programs.—(1) The Secretary of the military department concerned shall ensure that the program capability document supporting a Milestone B or subsequent decision for a major defense acquisition program may not be approved until the chief of the armed force concerned determines in writing that the requirements in the document are necessary and realistic in relation to the program cost and fielding targets established under section 4271(a) of this title.

(2) Consistent with the performance of duties under subsection (a), the Chief of the armed force concerned, or in the case of a joint program the chiefs of the armed forces concerned, with respect to major defense acquisition programs, shall—

(A) concur with the need for a materiel solution as identified in the Materiel Development Decision Review prior to entry into the Materiel Solution Analysis Phase under Department of Defense Instruction 5000.02;

(B) concur with the cost, schedule, technical feasibility, and performance trade-offs that have been made with regard to the program before Milestone A approval is granted under section 4251 of this title;

(C) concur that appropriate trade-offs among cost, schedule, technical feasibility, and performance objectives have been made to ensure that the program is affordable when considering the per unit cost and the total life-cycle cost before Milestone B approval is granted under section 4252 of this title; and

(D) concur that the requirements in the program capability document are necessary and realistic in relation to program cost and fielding targets as required by paragraph (1) before Milestone C approval is granted.

(c) Rule of Construction.—Nothing in this section shall be construed to affect the assignment of functions under section 7014(c)(1)(A), section 8014(c)(1)(A), or section 9014(c)(1)(A) of this title, except as explicitly provided in this section.

(d) Definitions.—In this section:

(1) The term "requirements creep" means the addition of new technical or operational specifications after a requirements document is approved by the appropriate validation authority for the requirements document.

(2) The term "requirements document" means a document produced in the requirements process that is provided for an acquisition program to guide the subsequent development, production, and testing of the program and that—

(A) justifies the need for a materiel approach, or an approach that is a combination of materiel and non-materiel, to satisfy one or more specific capability gaps;

(B) details the information necessary to develop an increment of militarily useful, logistically supportable, and technically mature capability, including key performance parameters; or

(C) identifies production attributes required for a single increment of a program.

(3) The term "program capability document" has the meaning provided in section 4401(b)(5) of this title.

(Added Pub. L. 111–383, div. A, title VIII, §861(a), Jan. 7, 2011, 124 Stat. 4289, §2547; amended Pub. L. 112–239, div. A, title IX, §951(c), Jan. 2, 2013, 126 Stat. 1891; Pub. L. 114–92, div. A, title VIII, §802(b), Nov. 25, 2015, 129 Stat. 879; Pub. L. 114–328, div. A, title VIII, §807(c), Dec. 23, 2016, 130 Stat. 2261; Pub. L. 115–91, div. A, title VIII, §833, Dec. 12, 2017, 131 Stat. 1468; Pub. L. 115–232, div. A, title VIII, §809(a), Aug. 13, 2018, 132 Stat. 1840; Pub. L. 116–92, div. A, title XVII, §1731(a)(52), Dec. 20, 2019, 133 Stat. 1815; renumbered §3104 and amended Pub. L. 116–283, div. A, title IX, §924(b)(32), title XVIII, §1808(a)(2), (b)(2), Jan. 1, 2021, 134 Stat. 3825, 4159, 4160.)

Editorial Notes

Codification

In addition to being transferred to this section as part of the renumbering of section 2547 of this title, subsec. (b) of section 2547 of this title had also been directed to be transferred to section 4274 of this title and redesignated as subsec. (a) of that section by Pub. L. 116–283, div. A, title XVIII, §1847(e)(4)(B), Jan. 1, 2021, 134 Stat. 4257. Section 1847(e)(4)(B) of Pub. L. 116–283 was repealed by Pub. L. 117–81, div. A, title XVII, §1701(r)(1)(B), Dec. 27, 2021, 135 Stat. 2149, effective as if included in title XVIII of Pub. L. 116–283.

Amendments

2021—Pub. L. 116–283, §1808(a)(2), renumbered section 2547 of this title as this section.

Subsec. (a). Pub. L. 116–283, §924(b)(32), substituted "the Commandant of the Marine Corps, and the Chief of Space Operations" for "and the Commandant of the Marine Corps".

Subsec. (b)(1). Pub. L. 116–283, §1808(b)(2)(A), substituted "section 4271(a)" for "section 2448a(a)".

Subsec. (b)(2)(B). Pub. L. 116–283, §1808(b)(2)(B), substituted "section 4251" for "section 2366a".

Subsec. (b)(2)(C). Pub. L. 116–283, §1808(b)(2)(C), substituted "section 4252" for "section 2366b".

Subsec. (d)(3). Pub. L. 116–283, §1808(b)(2)(D), substituted "section 4401(b)(5)" for "section 2446a(b)(5)".

2019—Subsec. (b)(2)(A). Pub. L. 116–92 substituted "materiel" for "material" and "Materiel" for "Material" in two places.

2018—Subsec. (c). Pub. L. 115–232 substituted "section 7014(c)(1)(A), section 8014(c)(1)(A), or section 9014(c)(1)(A)" for "section 3014(c)(1)(A), section 5014(c)(1)(A), or section 8014(c)(1)(A)".

2017—Subsec. (b). Pub. L. 115–91 designated existing provisions as par. (1) and added par. (2).

2016—Subsecs. (b), (c). Pub. L. 114–328, §807(c)(1), (2), added subsec. (b) and redesignated former subsec. (b) as (c). Former subsec. (c) redesignated (d).

Subsec. (d). Pub. L. 114–328, §807(c)(1), redesignated subsec. (c) as (d).

Subsec. (d)(3). Pub. L. 114–328, §807(c)(3), added par. (3).

2015—Subsec. (a)(2) to (5). Pub. L. 114–92, §802(b)(1), (2), added par. (2) and redesignated former pars. (2) to (4) as (3) to (5), respectively. Former par. (5) redesignated (6).

Subsec. (a)(6). Pub. L. 114–92, §802(b)(1), (3), redesignated par. (5) as (6) and substituted "The development and management" for "The development". Former par. (6) redesignated (7).

Subsec. (a)(7). Pub. L. 114–92, §802(b)(1), redesignated par. (6) as (7).

2013—Subsec. (a)(1). Pub. L. 112–239, §951(c)(1), substituted "of requirements for equipping the armed force concerned" for "of requirements relating to the defense acquisition system".

Subsec. (a)(3) to (6). Pub. L. 112–239, §951(c)(2), (3), added pars. (3) and (4) and redesignated former pars. (3) and (4) as (5) and (6), respectively.

Statutory Notes and Related Subsidiaries

Effective Date of 2021 Amendment

Amendment by section 1808(a)(2), (b)(2) of 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 a note preceding section 3001 of this title.

Effective Date of 2018 Amendment

Amendment by Pub. L. 115–232 effective Feb. 1, 2019, with provision for the coordination of amendments and special rule for certain redesignations, see section 800 of Pub. L. 115–232, set out as a note preceding section 3001 of this title.

§3105. Elements of the defense acquisition system: performance assessments

(a) Performance Assessments Required.—The Secretary of Defense, acting through the Under Secretary of Defense for Acquisition and Sustainment, the Director of Procurement and Acquisition Policy, and the Director of the Office of Performance Assessment and Root Cause Analysis, shall issue guidance, with detailed implementation instructions, for the Department of Defense to provide for periodic independent performance assessments of elements of the defense acquisition system for the purpose of—

(1) determining the extent to which such elements of the defense acquisition system deliver value to the Department of Defense, taking into consideration the performance elements identified in subsection (b);

(2) assisting senior officials of the Department of Defense in identifying and developing lessons learned from best practices and shortcomings in the performance of such elements of the defense acquisition system; and

(3) assisting senior officials of the Department of Defense in developing acquisition workforce excellence under section 1701a of this title.

(b) Areas Considered in Performance Assessments.—(1) Each performance assessment conducted pursuant to subsection (a) shall consider, at a minimum—

(A) the extent to which acquisitions conducted by the element of the defense acquisition system under review meet applicable cost, schedule, and performance objectives; and

(B) the staffing and quality of the acquisition workforce and the effectiveness of the management of the acquisition workforce, including workforce incentives and career paths.

(2) The Secretary of Defense shall ensure that the performance assessments required by this section are appropriately tailored to reflect the diverse nature of the work performed by each element of the defense acquisition system. In addition to the mandatory areas under paragraph (1), a performance assessment may consider, as appropriate, specific areas of acquisition concern, such as—

(A) the selection of contractors, including—

(i) the extent of competition and the use of exceptions to competition requirements;

(ii) compliance with Department of Defense policies regarding the participation of small business concerns and various categories of small business concerns, including the use of contract bundling and the availability of non-bundled contract vehicles;

(iii) the quality of market research;

(iv) the effective consideration of contractor past performance; and

(v) the number of bid protests, the extent to which such bid protests have been successful, and the reasons for such success;

(B) the negotiation of contracts, including—

(i) the appropriate application of sections 3701 through 3708 of this title (relating to truth in negotiations);

(ii) the appropriate use of contract types appropriate to specific procurements;

(iii) the appropriate use of performance requirements;

(iv) the appropriate acquisition of technical data and other rights and assets necessary to support long-term sustainment and follow-on procurement; and

(v) the timely definitization of any undefinitized contract actions; and

(C) the management of contractor performance, including—

(i) the assignment of appropriately qualified contracting officer representatives and other contract management personnel;

(ii) the extent of contract disputes, the reasons for such disputes, and the extent to which they have been successfully addressed;

(iii) the appropriate consideration of long-term sustainment and energy efficiency objectives; and

(iv) the appropriate use of integrated testing.

(c) Contents of Guidance.—The guidance issued pursuant to subsection (a) shall ensure that each element of the defense acquisition system is subject to a performance assessment under this section not less often than once every four years, and shall address, at a minimum—

(1) the designation of elements of the defense acquisition system that are subject to performance assessment at an organizational level that ensures such assessments can be performed in an efficient and integrated manner;

(2) the frequency with which such performance assessments should be conducted;

(3) goals, standards, tools, and metrics for use in conducting performance assessments;

(4) the composition of the teams designated to perform performance assessments;

(5) any phase-in requirements needed to ensure that qualified staff are available to perform performance assessments;

(6) procedures for tracking the implementation of recommendations made pursuant to performance assessments;

(7) procedures for developing and disseminating lessons learned from performance assessments; and

(8) procedures for ensuring that information from performance assessments are retained electronically and are provided in a timely manner to the Under Secretary of Defense for Acquisition and Sustainment and the Director of the Office of Performance Assessment and Root Cause Analysis as needed to assist them in performing their responsibilities under this section.

(Added Pub. L. 111–383, div. A, title VIII, §861(a), Jan. 7, 2011, 124 Stat. 4289, §2548; amended Pub. L. 112–239, div. A, title X, §1076(d)(5), (f)(30), Jan. 2, 2013, 126 Stat. 1951, 1953; Pub. L. 115–91, div. A, title X, §1081(a)(41), Dec. 12, 2017, 131 Stat. 1596; Pub. L. 116–92, div. A, title IX, §902(79), Dec. 20, 2019, 133 Stat. 1553; renumbered §3105 and amended Pub. L. 116–283, div. A, title XVIII, §1808(a)(2), (b)(3), (c)(1)(A), (2), Jan. 1, 2021, 134 Stat. 4159, 4160.)

Editorial Notes

Amendments

2021—Pub. L. 116–283, §1808(a)(2), (c)(2), renumbered section 2548 of this title as this section and substituted "Elements of the defense acquisition system: performance assessments" for "Performance assessments of the defense acquisition system" in section catchline.

Subsec. (b)(2)(B)(i). Pub. L. 116–283, §1808(b)(3), substituted "sections 3701 through 3708" for "section 2306a".

Subsecs. (d), (e). Pub. L. 116–283, §1808(c)(1)(A), transferred subsecs. (d) and (e) of this section to section 3106 of this title.

2019—Subsecs. (a), (c)(8). Pub. L. 116–92 substituted "Under Secretary of Defense for Acquisition and Sustainment" for "Under Secretary of Defense for Acquisition, Technology, and Logistics".

2017—Subsec. (e). Pub. L. 115–91 substituted "Requirement" for "Requirements" in heading, struck out introductory provisions "Beginning with fiscal year 2012—", substituted "The annual report prepared by the Secretary" for "(1) the annual report prepared by the Secretary", and struck out par. (2) which read as follows: "the annual report prepared by the Director of the Office of Performance Assessment and Root Cause Analysis pursuant to section 2438(f) of this title shall include information on the activities undertaken by the Department pursuant to such section, including a summary of significant findings or recommendations arising out of performance assessments."

2013—Subsec. (a). Pub. L. 112–239, §1076(f)(30)(A)(i), substituted "The Secretary" for "Not later than 180 days after the date of the enactment of the Ike Skelton National Defense Authorization Act for Fiscal Year 2011, the Secretary" in introductory provisions.

Subsec. (a)(3). Pub. L. 112–239, §1076(f)(30)(A)(ii), inserted period at end.

Subsec. (d). Pub. L. 112–239, §1076(f)(30)(B), inserted "and" after "Government Performance" in heading and substituted "The" for "Beginning with fiscal year 2012, the" in text.

Subsec. (e)(1). Pub. L. 112–239, §1076(f)(30)(C), struck out ", United States Code," after "title 31".

Subsec. (e)(2). Pub. L. 112–239, §1076(d)(5), substituted "section 2438(f) of this title" for "section 103(f) of the Weapon Systems Acquisition Reform Act of 2009 (10 U.S.C. 2430 note),".

Statutory Notes and Related Subsidiaries

Effective Date of 2021 Amendment

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 a note preceding section 3001 of this title.

§3106. Elements of the defense acquisition system: performance goals

(a) Performance Goals Under Government Performance and Results Act of 1993.—The annual performance plan prepared by the Department of Defense pursuant to section 1115 of title 31 shall include appropriate performance goals for elements of the defense acquisition system.

(b) Reporting Requirement.—The annual report prepared by the Secretary of Defense pursuant to section 1116 of title 31 shall address the Department's success in achieving performance goals established pursuant to such section for elements of the defense acquisition system.

(Added and amended Pub. L. 116–283, div. A, title XVIII, §1808(c)(1), Jan. 1, 2021, 134 Stat. 4160.)

Editorial Notes

References in Text

The Government Performance and Results Act of 1993, referred to in subsec. (a), is Pub. L. 103–62, Aug. 3, 1993, 107 Stat. 285, which enacted section 306 of Title 5, Government Organization and Employees, sections 1115 to 1119, 9703, and 9704 of Title 31, Money and Finance, and sections 2801 to 2805 of Title 39, Postal Service, amended section 1105 of Title 31, and enacted provisions set out as notes under sections 1101 and 1115 of Title 31. For complete classification of this Act to the Code, see Short Title of 1993 Amendment note set out under section 1101 of Title 31 and Tables.

Codification

The text of subsecs. (d) and (e) of section 2548 of this title, which were transferred first to section 3105(d) and (e) of this title and then to this section, redesignated as subsecs. (a) and (b), respectively, and amended by Pub. L. 116–283, §1808(a)(2), (c)(1), was based on Pub. L. 111–383, div. A, title VIII, §861(a), Jan. 7, 2011, 124 Stat. 4289; amended Pub. L. 112–239, div. A, title X, §1076(d)(5), (f)(30)(B), (C), Jan. 2, 2013, 126 Stat. 1951, 1953; Pub. L. 115–91, div. A, title X, §1081(a)(41), Dec. 12, 2017, 131 Stat. 1596.

Amendments

2021—Pub. L. 116–283, §1808(c)(1)(B), redesignated subsecs. (d) and (e) of section 3105 of this title as subsecs. (a) and (b), respectively, of this section.

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.

CHAPTER 207—BUDGETING AND APPROPRIATIONS

        

        

Editorial Notes

Prior Provisions

A prior chapter 207 "BUDGETING AND APPROPRIATIONS MATTERS", as added by Pub. L. 115–232, div. A, title VIII, §801(a), Aug. 13, 2018, 132 Stat. 1826, and consisting of reserved section 3101, was repealed by Pub. L. 116–283, div. A, title XVIII, §1809(a), Jan. 1, 2021, 134 Stat. 4160.

¹ Section omitted by Pub. L. 117–81 without corresponding amendment of chapter analysis.

§3131. Availability of appropriations

(a) Funds appropriated to the Department of Defense for research and development remain available for obligation for a period of two consecutive years.

(b) Funds appropriated to the Department of Defense for research and development may be used—

(1) for the purposes of section 4141 of this title; and

(2) for purposes related to research and development for which expenditures are specifically authorized in other appropriations of the Department of Defense.

(Added Pub. L. 97–258, §2(b)(3)(B), Sept. 13, 1982, 96 Stat. 1052, §2361; renumbered §2351 and amended Pub. L. 100–370, §1(g)(1), July 19, 1988, 102 Stat. 846; renumbered §3131 and amended Pub. L. 116–283, div. A, title XVIII, §§1809(b), 1883(b)(2), Jan. 1, 2021, 134 Stat. 4161, 4294; Pub. L. 117–81, div. A, title XVII, §1701(d)(1), Dec. 27, 2021, 135 Stat. 2136.)

Historical and Revision Notes
1982 Act

Revised section	Source (U.S. Code)	Source (Statutes at Large)
2361	31:649c(2).	Aug. 10, 1956, ch. 1041, §40(2), 70A Stat. 636; Nov. 17, 1971, Pub. L. 92–156, §201(b), 85 Stat. 424.

The words "Unless otherwise provided in the appropriation Act concerned" are omitted as unnecessary and for consistency. The word "Funds" is substituted for "moneys" for consistency in title 10.

1988 Act

Subsection (a) is based on section 2361 of this title.

Subsection (b) is based on Pub. L. 99–190, §101(b) [title VIII, §8015], Dec. 19, 1985, 99 Stat. 1185, 1205.

Editorial Notes

Amendments

2021—Pub. L. 116–283, §1809(b), renumbered section 2351 of this title as this section.

Subsec. (b)(1). Pub. L. 117–81, which directed the substitution of "section 4141" for "section 2353", could not be executed because of the intervening amendment by Pub. L. 116–283, §1883(b)(2). See note below.

Pub. L. 116–283, §1883(b)(2), substituted "section 4141" for "section 2353".

1988—Pub. L. 100–370 renumbered section 2361 of this title as section 2351, designated such provisions as subsec. (a), and added subsec. (b).

Statutory Notes and Related Subsidiaries

Effective Date of 2021 Amendment

Amendment by Pub. L. 117–81 to take effect immediately after the amendments made by title XVIII of Pub. L. 116–283 have taken effect, see section 1701(a)(3) of Pub. L. 117–81, set out in a note preceding section 3001 of this title and note below.

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 a note preceding section 3001 of this title.

§3132. Availability of appropriations for procurement of technical military equipment and supplies

Funds appropriated to the Department of Defense for the procurement of technical military equipment and supplies remain available until spent.

(Added Pub. L. 97–258, §2(b)(4)(B), Sept. 13, 1982, 96 Stat. 1052, §2394; renumbered §2395 and amended Pub. L. 97–295, §1(28)(A), Oct. 12, 1982, 96 Stat. 1291; renumbered §3132, Pub. L. 116–283, div. A, title XVIII, §1809(c), Jan. 1, 2021, 134 Stat. 4161.)

Historical and Revision Notes
1982 Act (Pub. L. 97–258)

Revised section	Source (U.S. Code)	Source (Statutes at Large)
2394	31:649c(1).	Aug. 10, 1956, ch. 1041, §40(1), 70A Stat. 636; Nov. 17, 1971, Pub. L. 92–156, §201(b), 85 Stat. 424.

The words "Unless otherwise provided in the appropriation Act concerned" are omitted as unnecessary and for consistency. The word "Funds" is substituted for "moneys" for consistency in title 10. The word "military" is added before "public" for clarity. The words "including moneys appropriated to the Department of the Navy for the procurement and construction of guided missiles" are omitted as included in "technical military equipment".

1982 Act (Pub. L. 97–295)

Revised section	Source (U.S. Code)	Source (Statutes at Large)
2395	10:2394.	Sept. 13, 1982, Pub. L. 97–258, §2(b)(4)(B), 96 Stat. 1053.

This redesignates 10:2394 (enacted by Pub. L. 97–258) as 10:2395 because of the enactment of another 10:2394 by Pub. L. 97–214, §6(a)(1), July 12, 1982, 96 Stat. 171, and amends the section generally to eliminate the words "and the construction of military public works" because of section 10(b)(5) of the Military Construction Codification Act (Pub. L. 97–214, July 12, 1982, 96 Stat. 176) which struck corresponding words from the source statute for 10:2394 subsequent to Apr. 15, 1982, the cut-off date prescribed by section 4(a) of Pub. L. 97–258, section 2(b)(4)(B) of which enacted 10:2394.

Editorial Notes

Amendments

2021—Pub. L. 116–283 renumbered section 2395 of this title as this section.

1982—Pub. L. 97–295 struck out "and the construction of military public works" after "supplies".

Statutory Notes and Related Subsidiaries

Effective Date of 2021 Amendment

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 a note preceding section 3001 of this title.

§3133. Contracts for periods crossing fiscal years: severable service contracts; leases of real or personal property

(a) Authority.—(1) The Secretary of Defense, the Secretary of a military department, or the Secretary of Homeland Security with respect to the Coast Guard when it is not operating as a service in the Navy, may enter into a contract for a purpose described in paragraph (2) for a period that begins in one fiscal year and ends in the next fiscal year if (without regard to any option to extend the period of the contract) the contract period does not exceed one year.

(2) The purpose of a contract described in this paragraph is as follows:

(A) The procurement of severable services.

(B) The lease of real or personal property, including the maintenance of such property when contracted for as part of the lease agreement.

(b) Obligation of Funds.—Funds made available for a fiscal year may be obligated for the total amount of a contract entered into under the authority of subsection (a).

(Added Pub. L. 100–370, §1(h)(2), July 19, 1988, 102 Stat. 847, §2410a; amended Pub. L. 102–190, div. A, title III, §342, Dec. 5, 1991, 105 Stat. 1343; Pub. L. 104–324, title II, §214(b), Oct. 19, 1996, 110 Stat. 3915; Pub. L. 105–85, div. A, title VIII, §801(a), Nov. 18, 1997, 111 Stat. 1831; Pub. L. 107–296, title XVII, §1704(b)(1), Nov. 25, 2002, 116 Stat. 2314; Pub. L. 108–136, div. A, title X, §1005(a), (b)(1), Nov. 24, 2003, 117 Stat. 1584; renumbered §3133, Pub. L. 116–283, div. A, title XVIII, §1809(d), Jan. 1, 2021, 134 Stat. 4161.)

Historical and Revision Notes

Section is based on Pub. L. 99–190, §101(b) [title VIII, §8005(e), (h), (l)], Dec. 19, 1985, 99 Stat. 1185, 1202.

Editorial Notes

Amendments

2021—Pub. L. 116–283 renumbered section 2410a of this title as this section.

2003—Pub. L. 108–136, §1005(b)(1), amended section catchline generally, substituting "Contracts for periods crossing fiscal years: severable service contracts; leases of real or personal property" for "Severable service contracts for periods crossing fiscal years".

Subsec. (a). Pub. L. 108–136, §1005(a), inserted "(1)" before "The Secretary of Defense", substituted "for a purpose described in paragraph (2)" for "for procurement of severable services", and added par. (2).

2002—Subsec. (a). Pub. L. 107–296 substituted "of Homeland Security" for "of Transportation".

1997—Pub. L. 105–85 amended section generally. Prior to amendment, section related to availability of appropriated funds for payments under contracts for various types of maintenance, leases, and operations and authorized Secretary of Transportation to enter into contracts for procurement of severable services.

1996—Pub. L. 104–324 designated existing provisions as subsec. (a) and added subsec. (b).

1991—Par. (1). Pub. L. 102–190, §342(1), inserted ", equipment," after "tools".

Par. (4). Pub. L. 102–190, §342(2), added par. (4).

Statutory Notes and Related Subsidiaries

Effective Date of 2021 Amendment

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 a note preceding section 3001 of this title.

Effective Date of 2003 Amendment

Pub. L. 108–136, div. A, title X, §1005(c), Nov. 24, 2003, 117 Stat. 1585, provided that: "The amendments made by this section [amending this section] shall not apply to funds appropriated for a fiscal year before fiscal year 2004."

Effective Date of 2002 Amendment

Amendment by Pub. L. 107–296 effective on the date of transfer of the Coast Guard to the Department of Homeland Security, see section 1704(g) of Pub. L. 107–296, set out as a note under section 101 of this title.

§3134. Allocation of appropriations

(a) Appropriations available for procurement by an agency named in section 3063 of this title may, through administrative allotment, be made available for obligation for procurement by any other agency in amounts authorized by the head of the allotting agency and without transfer of funds on the books of the Department of the Treasury.

(b) A disbursing official of the allotting agency may make any disbursement chargeable to an allotment under subsection (a) upon a voucher certified by an officer or civilian employee of the procuring agency.

(Aug. 10, 1956, ch. 1041, 70A Stat. 132, §2309; Pub. L. 97–258, §2(b)(1)(B), Sept. 13, 1982, 96 Stat. 1052; renumbered §3134 and amended Pub. L. 116–283, div. A, title XVIII, §1809(e), Jan. 1, 2021, 134 Stat. 4161; Pub. L. 117–81, div. A, title XVII, §1701(b)(3), Dec. 27, 2021, 135 Stat. 2132.)

Historical and Revision Notes

Revised section	Source (U.S. Code)	Source (Statutes at Large)
2309(a) 2309(b)	41:159 (2d sentence). 41:159 (less 1st and 2d sentences).	Feb. 19, 1948, ch. 65, §10 (less 1st sentence), 62 Stat. 25.

In subsection (a), the words "an agency named in section 2303 of this title" are substituted for the words "any such agency".

In subsection (b), the words "an allotment under subsection (a)" are substituted for the words "such allotments".

Editorial Notes

Amendments

2021—Pub. L. 116–283, §1809(e)(1), renumbered section 2309 of this title as this section.

Subsec. (a). Pub. L. 116–283, §1809(e)(2)(A), substituted "named in section 3063" for "named in section 2303".

Subsec. (c). Pub. L. 116–283, §1809(e)(2)(B), which directed adding subsec. (c), was repealed by Pub. L. 117–81, §1701(b)(3).

1982—Subsec. (b). Pub. L. 97–258 substituted "disbursing official" for "disbursing officer".

Statutory Notes and Related Subsidiaries

Effective Date of 2021 Amendment

Amendment by Pub. L. 117–81 applicable as if included in the enactment of title XVIII of Pub. L. 116–283 as enacted, see section 1701(a)(2) of Pub. L. 117–81, set out in a note preceding section 3001 of this title and note below.

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 a note preceding section 3001 of this title.

§3135. Comparable budgeting for common procurement weapon systems

(a) Matters To Be Included in Annual Defense Budgets.—In preparing the defense budget for any fiscal year, the Secretary of Defense shall—

(1) specifically identify each common procurement weapon system included in the budget;

(2) take all feasible steps to minimize variations in procurement unit costs for any such system as shown in the budget requests of the different armed forces requesting procurement funds for the system; and

(3) identify and justify in the budget all such variations in procurement unit costs for common procurement weapon systems.

(b) Comptroller.—The Secretary shall carry out this section through the Under Secretary of Defense (Comptroller).

(c) Definitions.—In this section:

(1) The term "defense budget" means the budget of the Department of Defense included in the President's budget submitted to Congress under section 1105 of title 31 for a fiscal year.

(2) The term "common procurement weapon system" means a weapon system for which two or more of the Army, Navy, Air Force, Marine Corps, and Space Force request procurement funds in a defense budget.

(Added Pub. L. 100–370, §1(d)(3)(A), July 19, 1988, 102 Stat. 843, §2217; amended Pub. L. 104–106, div. A, title XV, §1503(a)(20), Feb. 10, 1996, 110 Stat. 512; renumbered §3135 and amended Pub. L. 116–283, div. A, title IX, §924(b)(1)(N), title XVIII, §1809(f)(1), Jan. 1, 2021, 134 Stat. 3820, 4161.)

Historical and Revision Notes

Section is based on Pub. L. 99–500, §101(c) [title X, §955], Oct. 18, 1986, 100 Stat. 1783–82, 1783-173, and Pub. L. 99–591, §101(c) [title X, §955], Oct. 30, 1986, 100 Stat. 3341–82, 3341-173; Pub. L. 99–661, div. A, title IX, formerly title IV, §955, Nov. 14, 1986, 100 Stat. 3953, renumbered title IX, Pub. L. 100–26, §3(5), Apr. 21, 1987, 101 Stat. 273.

Editorial Notes

Amendments

2021—Pub. L. 116–283, §1809(f)(1), renumbered section 2217 of this title as this section.

Subsec. (c)(2). Pub. L. 116–283, §924(b)(1)(N), substituted "Marine Corps, and Space Force" for "and Marine Corps".

1996—Subsec. (b). Pub. L. 104–106 substituted "Under Secretary of Defense (Comptroller)" for "Comptroller of the Department of Defense".

Statutory Notes and Related Subsidiaries

Effective Date of 2021 Amendment

Amendment by section 1809(f)(1) of 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 a note preceding section 3001 of this title.

§3136. Defense Modernization Account

(a) Establishment.—There is established in the Treasury an account to be known as the "Defense Modernization Account".

(b) Funds Available for Account.—The Defense Modernization Account shall consist of the following:

(1) Amounts appropriated to the Defense Modernization Account for the costs of projects described in subsection (d)(1), and amounts reimbursed to the Defense Modernization Account under subsection (c)(1)(B)(ii) out of savings derived from such projects.

(2) Amounts transferred to the Defense Modernization Account under subsection (c).

(c) Transfers to Account.—(1)(A) Upon a determination by the Secretary of a military department, or the Secretary of Defense with respect to Defense-wide appropriations accounts, of the availability and source of funds described in subparagraph (B), the Secretary concerned may transfer to the Defense Modernization Account during any fiscal year any amount of funds available to the Secretary described in that subparagraph. Such funds may be transferred to that account only after the Secretary concerned notifies the congressional defense committees in writing of the amount and source of the proposed transfer.

(B) This subsection applies to the following funds that have been appropriated for fiscal years after fiscal year 2016 and are available to the Secretary concerned:

(i) Unexpired funds in appropriations accounts that are available for new obligations and that, as a result of economies, efficiencies, and other savings achieved in carrying out an acquisition program, are excess to the requirements of that program.

(ii) Unexpired funds in appropriations accounts that are available for procurement or operation and maintenance of a system, if and to the extent that savings are achieved for such accounts through reductions in life cycle costs of such system that result from one or more projects undertaken with respect to such systems with funds made available from the Defense Modernization Account under subsection (b)(1).

(C) Any transfer under subparagraph (A) shall be made under regulations prescribed by the Secretary of Defense.

(2) Funds referred to in paragraph (1) may not be transferred to the Defense Modernization Account if the balance of funds in the account, after transfer of funds to the account, would exceed $1,000,000,000.

(3) Amounts deposited in the Defense Modernization Account shall remain available for transfer and obligation until the end of the third fiscal year that follows the fiscal year in which the amounts are deposited in the account.

(d) Authorized Use of Funds.—Funds in the Defense Modernization Account may be used for the following purposes:

(1) For paying the costs of any project that, in accordance with criteria prescribed by the Secretary concerned, is undertaken by the Secretary of a military department or the head of a Defense Agency or other element of the Department of Defense to reduce the life cycle cost of a new or existing system.

(2) For increasing, subject to subsection (e), the quantity of items and services procured under an acquisition program in order to achieve a more efficient production or delivery rate.

(3) For research, development, test, and evaluation, for procurement, and for sustainment activities necessary for paying costs of unforeseen contingencies that are approved by the milestone decision authority concerned, that could prevent an ongoing acquisition program from meeting critical schedule or performance requirements.

(4) For paying costs of changes to program requirements or system configuration that are approved by the configuration steering board for a major defense acquisition program.

(5) For procuring and integrating available commercial technologies and services to satisfy a joint urgent operational need, joint emergent operational need, or a validated service requirement.

(6) For providing infrastructure to support Department goals of accelerating the fielding and adoption of new capabilities.

(e) Limitations.—(1) Funds in the Defense Modernization Account may not be used to increase the quantity of an item or services procured under a particular acquisition program to the extent that doing so would—

(A) result in procurement of a total quantity of items or services in excess of—

(i) a specific limitation provided by law on the quantity of the items or services that may be procured; or

(ii) the requirement for the items or services as approved by the Joint Requirements Oversight Council and reported to Congress by the Secretary of Defense; or

(B) result in an obligation or expenditure of funds in excess of a specific limitation provided by law on the amount that may be obligated or expended, respectively, for that acquisition program.

(2) Funds in the Defense Modernization Account may not be used for a purpose or program for which Congress has not authorized appropriations, unless the procedures for initiating a new start program are complied with.

(3) Funds may not be transferred from the Defense Modernization Account in any year for the purpose of—

(A) making an expenditure for which there is no corresponding obligation; or

(B) making an expenditure that would satisfy an unliquidated or unrecorded obligation arising in a prior fiscal year.

(f) Transfer of Funds.—(1) The Secretary of a military department, or the Secretary of Defense with respect to Defense-wide appropriations accounts, may transfer funds in the Defense Modernization Account to appropriations available for purposes set forth in subsection (d).

(2) Funds in the Defense Modernization Account may not be transferred under paragraph (1) until 30 days after the date on which the Secretary concerned notifies the congressional defense committees in writing of the amount and purpose of the proposed transfer.

(3) The total amount of transfers from the Defense Modernization Account during any fiscal year under this subsection may not exceed $500,000,000.

(g) Availability of Funds by Appropriation.—In addition to transfers under subsection (f), funds in the Defense Modernization Account may be made available for purposes set forth in subsection (d), but only to the extent authorized in an Act other than an appropriations Act. Funds deposited in the Defense Modernization Account shall remain available for obligation until the end of the third fiscal year that follows the fiscal year in which the amounts are deposited in the account.

(h) Secretary To Act Through Comptroller.—(1) The Secretary of Defense shall carry out this section through the Under Secretary of Defense (Comptroller), who shall be authorized to implement this section through the issuance of any necessary regulations, policies, and procedures after consultation with the General Counsel and Inspector General of the Department of Defense.

(2) The regulations prescribed under paragraph (1) shall, at a minimum, provide for—

(A) the establishment and management of subaccounts for each of the military departments and Defense Agencies concerned for the use of funds in the Defense Modernization Account, consistent with each military department's or Defense Agency's deposits in the Account;

(B) the submission of proposals by the Secretaries concerned or heads of Defense Agencies or other elements of the Department of Defense to the Comptroller for the use of Defense Modernization Account funds for purposes set forth in subsection (d);

(C) the use of a competitive process for the evaluation of such proposals and the selection of programs, projects, and activities to be funded out of the Defense Modernization Account and subaccounts from among those proposed for such funding; and

(D) the calculation of—

(i) the savings to be derived from projects described in subsection (d)(1) that are to be funded out of the Defense Modernization Account; and

(ii) the amounts to be reimbursed to the Defense Modernization Account out of such savings pursuant to subsection (c)(1)(B)(ii).

(i) Definitions.—In this section:

(1) The term "major defense acquisition program" has the meaning given the term in section 4201 of this title.

(2) The term "unexpired funds" means funds appropriated for a definite period that remain available for obligation.

(Added Pub. L. 104–106, div. A, title IX, §912(a)(1), Feb. 10, 1996, 110 Stat. 407, §2216; amended Pub. L. 106–65, div. A, title X, §1067(1), Oct. 5, 1999, 113 Stat. 774; Pub. L. 108–136, div. A, title X, §§1008(a)–(f)(1), 1043(b)(8), Nov. 24, 2003, 117 Stat. 1586, 1587, 1611; Pub. L. 109–364, div. A, title X, §1071(a)(16), Oct. 17, 2006, 120 Stat. 2399; Pub. L. 113–66, div. A, title X, §1084(a)(2), Dec. 26, 2013, 127 Stat. 871; Pub. L. 114–328, div. A, title VIII, §804, Dec. 23, 2016, 130 Stat. 2250; Pub. L. 116–92, div. A, title XVII, §1731(a)(30), Dec. 20, 2019, 133 Stat. 1814; renumbered §3136 and amended Pub. L. 116–283, div. A, title XVIII, §§1809(g)(1), 1883(b)(2), Jan. 1, 2021, 134 Stat. 4161, 4294; Pub. L. 117–263, div. A, title VIII, §813, Dec. 23, 2022, 136 Stat. 2707; Pub. L. 118–159, div. A, title X, §1003(a), Dec. 23, 2024, 138 Stat. 2047.)

Editorial Notes

Amendments

2024—Subsec. (d)(5), (6). Pub. L. 118–159 added pars. (5) and (6).

2022—Subsec. (j). Pub. L. 117–263 struck out subsec. (j). Text read as follows:

"(1) The authority under subsection (c) to transfer funds into the Defense Modernization Account terminates at the close of September 30, 2022.

"(2) Three years after the termination date specified in paragraph (1), the Defense Modernization Account shall be closed and any remaining balance in the account shall be canceled and thereafter shall not be available for any purpose."

2021—Pub. L. 116–283, §1809(g)(1), renumbered section 2216 of this title as this section.

Subsec. (i)(1). Pub. L. 116–283, §1883(b)(2), substituted "section 4201 of this title" for "section 2430(a) of this title".

2019—Subsec. (b)(1). Pub. L. 116–92 substituted "subsection (c)(1)(B)(ii)" for "subsection (c)(1)(B)(iii)".

2016—Subsec. (b)(1). Pub. L. 114–328, §804(a), struck out "commencing" before "projects described".

Subsec. (c)(1)(A). Pub. L. 114–328, §804(b)(1), substituted ", or the Secretary of Defense with respect to Defense-wide appropriations accounts," for "or the Secretary of Defense with respect to Defense-wide appropriations accounts" and "the Secretary concerned" for "that Secretary" before "may transfer".

Subsec. (c)(1)(B). Pub. L. 114–328, §804(b)(2)(A), in introductory provisions, inserted "that have been appropriated for fiscal years after fiscal year 2016 and are" after "following funds".

Subsec. (c)(1)(B)(i). Pub. L. 114–328, §804(b)(2)(B), substituted "or new obligations" for "for procurement", "an acquisition program" for "a particular procurement", and "that program" for "that procurement".

Subsec. (c)(1)(B)(ii), (iii). Pub. L. 114–328, §804(b)(2)(C), (D), redesignated cl. (iii) as (ii) and struck out former cl. (ii) which read as follows: "Unexpired funds that are available during the final 30 days of a fiscal year for support of installations and facilities and that, as a result of economies, efficiencies, and other savings, are excess to the requirements for support of installations and facilities."

Subsec. (c)(2). Pub. L. 114–328, §804(b)(3), struck out ", other than funds referred to in subparagraph (B)(iii) of such paragraph," after "Funds referred to in paragraph (1)" and substituted "if the balance of funds" for "if—

"(A) the funds are necessary for programs, projects, and activities that, as determined by the Secretary, have a higher priority than the purposes for which the funds would be available if transferred to that account; or

"(B) the balance of funds".

Subsec. (c)(3). Pub. L. 114–328, §804(b)(4), substituted "deposited in" for "credited to" in two places and inserted "and obligation" after "available for transfer".

Subsec. (c)(4). Pub. L. 114–328, §804(b)(5), struck out par. (4) which read as follows: "The period of availability of funds for expenditure provided for in sections 1551 and 1552 of title 31 may not be extended by transfer into the Defense Modernization Account."

Subsec. (d)(1). Pub. L. 114–328, §804(c)(1), struck out "commencing" before "any project" and substituted "Secretary concerned" for "Secretary of Defense".

Subsec. (d)(2). Pub. L. 114–328, §804(c)(2), substituted "an acquisition program" for "a procurement program".

Subsec. (d)(3). Pub. L. 114–328, §804(c)(3), amended par. (3) generally. Prior to amendment, par. (3) read as follows: "For research, development, test, and evaluation and for procurement necessary for modernization of an existing system or of a system being procured under an ongoing procurement program."

Subsec. (d)(4). Pub. L. 114–328, §804(c)(4), added par. (4).

Subsec. (e)(1). Pub. L. 114–328, §804(d)(1), substituted "acquisition program" for "procurement program" in introductory provisions and subpar. (B).

Subsec. (e)(2). Pub. L. 114–328, §804(d)(2), substituted "authorized appropriations, unless the procedures for initiating a new start program are complied with" for "authorized appropriations".

Subsec. (f)(1). Pub. L. 114–328, §804(e), substituted "Secretary of a military department, or the Secretary of Defense with respect to Defense-wide appropriations accounts," for "Secretary of Defense".

Subsec. (g). Pub. L. 114–328, §804(f), struck out "in accordance with the provisions of appropriations Acts" after "subsection (d)" and inserted at end "Funds deposited in the Defense Modernization Account shall remain available for obligation until the end of the third fiscal year that follows the fiscal year in which the amounts are deposited in the account."

Subsec. (h)(2)(A), (B). Pub. L. 114–328, §804(g)(1), (2), added subpar. (A) and redesignated former subpar. (A) as (B). Former subpar. (B) redesignated (C).

Subsec. (h)(2)(C). Pub. L. 114–328, §804(g)(1), (3), redesignated subpar. (B) as (C) and inserted "and subaccounts" after "Account". Former subpar. (C) redesignated (D).

Subsec. (h)(2)(D). Pub. L. 114–328, §804(g)(1), redesignated subpar. (C) as (D).

Subsec. (h)(2)(D)(ii). Pub. L. 114–328, §804(g)(4), substituted "subsection (c)(1)(B)(ii)" for "subsection (c)(1)(B)(iii)".

Subsec. (i)(1). Pub. L. 114–328, §804(h), amended par. (1) generally. Prior to amendment, par. (1) read as follows: "The term 'Secretary concerned' includes the Secretary of Defense with respect to Defense-wide appropriations accounts."

Subsec. (j)(1). Pub. L. 114–328, §804(j), substituted "terminates at the close of September 30, 2022" for "terminates at the close of September 30, 2006".

2013—Subsecs. (i) to (k). Pub. L. 113–66 redesignated subsecs. (j) and (k) as (i) and (j), respectively, and struck out former subsec. (i) which related to an annual report submitted by the Secretary of Defense to the congressional defense committees and the Committee on Governmental Affairs of the Senate and the Committee on Government Reform and Oversight of the House of Representatives.

2006—Subsec. (b)(1). Pub. L. 109–364 substituted "subsection (c)(1)(B)(iii)" for "subsections (c)(1)(B)(iii)".

2003—Subsec. (b). Pub. L. 108–136, §1008(a)(3), added subsec. (b). Former subsec. (b) redesignated (c).

Subsec. (c). Pub. L. 108–136, §1008(a)(1), (2), redesignated subsec. (b) as (c) and struck out heading and text of former subsec. (c). Text read as follows: "Funds transferred to the Defense Modernization Account from funds appropriated for a military department, Defense Agency, or other element of the Department of Defense shall be available in accordance with subsections (f) and (g) only for transfer to funds available for that military department, Defense Agency, or other element."

Subsec. (c)(1)(B)(iii). Pub. L. 108–136, §1008(c)(1), added cl. (iii).

Subsec. (c)(2). Pub. L. 108–136, §1008(c)(2), inserted ", other than funds referred to in subparagraph (B)(iii) of such paragraph," after "Funds referred to in paragraph (1)".

Subsec. (d). Pub. L. 108–136, §1008(b), substituted "in the Defense Modernization Account" for "available from the Defense Modernization Account pursuant to subsection (f) or (g)" in introductory provisions, added par. (1), and redesignated former pars. (1) and (2) as (2) and (3), respectively.

Subsec. (h). Pub. L. 108–136, §1008(d), designated existing provisions as par. (1) and added par. (2).

Subsec. (i). Pub. L. 108–136, §1008(e)(1), substituted "Annual Report" for "Quarterly Reports" in heading.

Subsec. (i)(1). Pub. L. 108–136, §1008(e)(1), (2), substituted "fiscal year" for "calendar quarter" in introductory provisions and "fiscal year" for "quarter" in subpars. (A) to (C).

Subsec. (j)(3). Pub. L. 108–136, §1043(b)(8), struck out par. (3) which read as follows: "The term 'congressional defense committees' means—

"(A) the Committee on Armed Services and the Committee on Appropriations of the Senate; and

"(B) the Committee on Armed Services and the Committee on Appropriations of the House of Representatives."

Subsec. (k). Pub. L. 108–136, §1008(f)(1), added subsec. (k).

1999—Subsec. (j)(3)(B). Pub. L. 106–65 substituted "Committee on Armed Services" for "Committee on National Security".

Statutory Notes and Related Subsidiaries

Effective Date of 2024 Amendment

Pub. L. 118–159, div. A, title X, §1003(b), Dec. 23, 2024, 138 Stat. 2047, provided that: "Paragraphs (5) and (6) of subsection (d) of section 3136 of title 10, United States Code, as added by subsection (a), shall apply only with respect to funds made available, and transferred to the Defense Modernization Account, on or after the date of the enactment of this Act [Dec. 23, 2024]."

Effective Date of 2021 Amendment

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 a note preceding section 3001 of this title.

Effective Date

Pub. L. 104–106, div. A, title IX, §912(b), Feb. 10, 1996, 110 Stat. 410, provided that: "Section 2216 of title 10, United States Code [now 10 U.S.C. 3136] (as added by subsection (a)), shall apply only to funds appropriated for fiscal years after fiscal year 1995."

[§3137. Omitted]

Editorial Notes

Codification

Pub. L. 116–283, div. A, title XVIII, §1809(h)(1), Jan. 1, 2021, 134 Stat. 4162, directed the transfer of section 235 of this title to this section, which was to take effect Jan. 1, 2022. However, Pub. L. 117–81, div. A, title VIII, §815(b)(1), Dec. 27, 2021, 135 Stat. 1825, subsequently repealed section 235 of this title effective Dec. 27, 2021, effectively eliminating that transfer and omitting this section before it took effect.

§3138. Obligations for contract services: reporting in budget object classes

(a) Limitation on Reporting in Miscellaneous Services Object Class.—The Secretary of Defense shall ensure that, in reporting to the Office of Management and Budget (pursuant to OMB Circular A–11 (relating to preparation and submission of budget estimates)) obligations of the Department of Defense for any period of time for contract services, no more than 15 percent of the total amount of obligations so reported is reported in the miscellaneous services object class.

(b) Definition of Reporting Categories for Advisory and Assistance Services.—In carrying out section 1105(g) of title 31 for the Department of Defense (and in determining what services are to be reported to the Office of Management and Budget in the advisory and assistance services object class), the Secretary of Defense shall apply to the terms used for the definition of "advisory and assistance services" in paragraph (2)(A) of that section the following meanings (subject to the authorized exemptions):

(1) Management and professional support services.—The term "management and professional support services" (used in clause (i) of section 1105(g)(2)(A) of title 31) means services that provide engineering or technical support, assistance, advice, or training for the efficient and effective management and operation of organizations, activities, or systems. Those services—

(A) are closely related to the basic responsibilities and mission of the using organization; and

(B) include efforts that support or contribute to improved organization or program management, logistics management, project monitoring and reporting, data collection, budgeting, accounting, auditing, and administrative or technical support for conferences and training programs.

(2) Studies, analyses, and evaluations.—The term "studies, analyses, and evaluations" (used in clause (ii) of section 1105(g)(2)(A) of title 31) means services that provide organized, analytic assessments to understand or evaluate complex issues to improve policy development, decisionmaking, management, or administration and that result in documents containing data or leading to conclusions or recommendations. Those services may include databases, models, methodologies, and related software created in support of a study, analysis, or evaluation.

(3) Engineering and technical services.—The term "engineering and technical services" (used in clause (iii) of section 1105(g)(2)(A) of title 31) means services that take the form of advice, assistance, training, or hands-on training necessary to maintain and operate fielded weapon systems, equipment, and components (including software when applicable) at design or required levels of effectiveness.

(c) Proper Classification of Advisory and Assistance Services.—Before the submission to the Office of Management and Budget of the proposed Department of Defense budget for inclusion in the President's budget for a fiscal year pursuant to section 1105 of title 31, the Secretary of Defense, acting through the Under Secretary of Defense (Comptroller), shall conduct a review of Department of Defense services expected to be performed as contract services during the fiscal year for which that budget is to be submitted in order to ensure that those services that are advisory and assistance services (as defined in accordance with subsection (b)) are in fact properly classified, in accordance with that subsection, in the advisory and assistance services object class.

(d) Report to Congress.—The Secretary shall submit to Congress each year, not later than 30 days after the date on which the budget for the next fiscal year is submitted pursuant to section 1105 of title 31, a report containing the information derived from the review under subsection (c).

(e) Assessment by Comptroller General.—(1) The Comptroller General shall conduct a review of the report of the Secretary of Defense under subsection (d) each year and shall—

(A) assess the methodology used by the Secretary in obtaining the information submitted to Congress in that report; and

(B) assess the information submitted to Congress in that report.

(2) Not later than 120 days after the date on which the Secretary submits to Congress the report required under subsection (d) for any year, the Comptroller General shall submit to Congress the Comptroller General's report containing the results of the review for that year under paragraph (1).

(f) Definitions.—In this section:

(1) The term "contract services" means all services that are reported to the Office of Management and Budget pursuant to OMB Circular A–11 (relating to preparation and submission of budget estimates) in budget object classes that are designated in the Object Class 25 series.

(2) The term "advisory and assistance services object class" means those contract services constituting the budget object class that is denominated "Advisory and Assistance Service" and designated (as of October 17, 1998) as Object Class 25.1 (or any similar object class established after October 17, 1998, for the reporting of obligations for advisory and assistance contract services).

(3) The term "miscellaneous services object class" means those contract services constituting the budget object class that is denominated "Other Services (services not otherwise specified in the 25 series)" and designated (as of October 17, 1998) as Object Class 25.2 (or any similar object class established after October 17, 1998, for the reporting of obligations for miscellaneous or unspecified contract services).

(4) The term "authorized exemptions" means those exemptions authorized (as of October 17, 1998) under Department of Defense Directive 4205.2, captioned "Acquiring and Managing Contracted Advisory and Assistance Services (CAAS)" and issued by the Under Secretary of Defense for Acquisition and Technology on February 10, 1992, such exemptions being set forth in Enclosure 3 to that directive (captioned "CAAS Exemptions").

(Added Pub. L. 105–261, div. A, title IX, §911(a)(1), Oct. 17, 1998, 112 Stat. 2097, §2212; amended Pub. L. 106–65, div. A, title X, §1066(a)(17), Oct. 5, 1999, 113 Stat. 771; renumbered §3138, Pub. L. 116–283, div. A, title XVIII, §1809(i)(1), Jan. 1, 2021, 134 Stat. 4162.)

Editorial Notes

Amendments

2021—Pub. L. 116–283 renumbered section 2212 of this title as this section.

1999—Subsec. (f)(2), (3). Pub. L. 106–65 substituted "as of October 17, 1998" for "as of the date of the enactment of this section" and "after October 17, 1998," for "after the date of the enactment of this section".

Subsec. (f)(4). Pub. L. 106–65, §1066(a)(17)(B), substituted "as of October 17, 1998" for "as of the date of the enactment of this section".

Statutory Notes and Related Subsidiaries

Change of Name

Reference to Under Secretary of Defense for Acquisition and Technology deemed to refer to Under Secretary of Defense for Acquisition, Technology, and Logistics, pursuant to section 911(a)(1) of Pub. L. 106–65, formerly set out as a note under section 133 of this title.

Effective Date of 2021 Amendment

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 a note preceding section 3001 of this title.

CHAPTER 209—OPERATIONAL CONTRACT SUPPORT

        

Editorial Notes

Prior Provisions

A prior chapter 209 "OPERATIONAL CONTRACT SUPPORT", as added by Pub. L. 115–232, div. A, title VIII, §801(a), Aug. 13, 2018, 132 Stat. 1827, and consisting of reserved section 3151, was repealed by Pub. L. 116–283, div. A, title XVIII, §1810(a), Jan. 1, 2021, 134 Stat. 4162.

Amendments

2021—Pub. L. 117–81, div. A, title XVII, §1701(i)(2)(A), Dec. 27, 2021, 135 Stat. 2141, amended Pub. L. 116–283, div. A, title XVIII, §1810(a), Jan. 1, 2021, 134 Stat. 4162, which added this analysis, by substituting "[Reserved]" for "Other Provisions Relating to Operational Contract Support" in item for subchapter II.

Statutory Notes and Related Subsidiaries

Responsibility Within Department of Defense for Operational Contract Support

Pub. L. 112–239, div. A, title VIII, §843, Jan. 2, 2013, 126 Stat. 1845, provided that:

"(a) Guidance Required.—Not later than one year after the date of the enactment of this Act [Jan. 2, 2013], the Secretary of Defense shall develop and issue guidance establishing the chain of authority and responsibility within the Department of Defense for policy, planning, and execution of operational contract support.

"(b) Elements.—The guidance under subsection (a) shall, at a minimum—

"(1) specify the officials, offices, and components of the Department within the chain of authority and responsibility described in subsection (a);

"(2) identify for each official, office, and component specified under paragraph (1)—

"(A) requirements for policy, planning, and execution of contract support for operational contract support, including, at a minimum, requirements in connection with—

"(i) coordination of functions, authorities, and responsibilities related to operational contract support, including coordination with relevant Federal agencies;

"(ii) assessments of total force data in support of Department force planning scenarios, including the appropriateness of and necessity for the use of contractors for identified functions;

"(iii) determinations of capability requirements for nonacquisition community operational contract support, and identification of resources required for planning, training, and execution to meet such requirements; and

"(iv) determinations of policy regarding the use of contractors by function, and identification of the training exercises that will be required for operational contract support (including an assessment [of] whether or not such exercises will include contractors); and

"(B) roles, authorities, responsibilities, and lines of supervision for the achievement of the requirements identified under subparagraph (A); and

"(3) ensure that the chain of authority and responsibility described in subsection (a) is appropriately aligned with, and appropriately integrated into, the structure of the Department for the conduct of overseas contingency operations, including the military departments, the Joint Staff, and the commanders of the unified combatant commands."

Competition and Review of Contracts for Property or Services in Support of a Contingency Operation

Pub. L. 112–81, div. A, title VIII, §844(a), (b), Dec. 31, 2011, 125 Stat. 1515, which authorized the Secretary of Defense to establish goals for competition in contracts for procurement of property or services to be used outside the United States in support of a contingency operation and to develop processes to measure and monitor such competition and required annual review of such contracts, was repealed by Pub. L. 118–159, div. A, title VIII, §811(a)(2)(A), Dec. 23, 2024, 138 Stat. 1979.

SUBCHAPTER I—JOINT POLICIES ON REQUIREMENTS DEFINITION, CONTINGENCY PROGRAM MANAGEMENT, AND CONTINGENCY CONTRACTING

        

§3151. Joint policy requirement

The Secretary of Defense, in consultation with the Chairman of the Joint Chiefs of Staff, shall develop joint policies for requirements definition, contingency program management, and contingency contracting during combat operations and post-conflict operations.

(Added and amended Pub. L. 116–283, div. A, title XVIII, §1810(a), (b)(1), Jan. 1, 2021, 134 Stat. 4162, 4163.)

Editorial Notes

Codification

The text of subsec. (a) of section 2333 of this title, which was transferred to this section and amended by Pub. L. 116–283, §1810(b)(1), was based on Pub. L. 109–364, div. A, title VIII, §854(a)(1), Oct. 17, 2006, 120 Stat. 2343.

Amendments

2021—Pub. L. 116–283, §1810(b)(1), transferred subsec. (a) of section 2333 of this title to this section and struck out subsec. (a) designation and heading "Joint Policy Requirement" at beginning.

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.

§3152. Requirements definition matters covered

The joint policy for requirements definition required by section 3151 of this title shall, at a minimum, provide for the following:

(1) The assignment of a senior commissioned officer or civilian member of the senior executive service, with appropriate experience and qualifications related to the definition of requirements to be satisfied through acquisition contracts (such as for delivery of products or services, performance of work, or accomplishment of a project), to act as head of requirements definition and coordination during combat operations, post-conflict operations, and contingency operations, if required, including leading a requirements review board involving all organizations concerned.

(2) An organizational approach to requirements definition and coordination during combat operations, post-conflict operations, and contingency operations that is designed to ensure that requirements are defined in a way that effectively implements United States Government and Department of Defense objectives, policies, and decisions regarding the allocation of resources, coordination of interagency efforts in the theater of operations, and alignment of requirements with the proper use of funds.

(Added and amended Pub. L. 116–283, div. A, title XVIII, §1810(a), (b)(2), Jan. 1, 2021, 134 Stat. 4162, 4163.)

Editorial Notes

Codification

The text of subsec. (b) of section 2333 of this title, which was transferred to this section and amended by Pub. L. 116–283, §1810(b)(2), was based on Pub. L. 109–364, div. A, title VIII, §854(a)(1), Oct. 17, 2006, 120 Stat. 2343.

Amendments

2021—Pub. L. 116–283, §1810(b)(2), transferred subsec. (b) of section 2333 of this title to this section and, in introductory provisions, struck out subsec. (b) designation and heading "Requirements Definition Matters Covered" at beginning and substituted "section 3151 of this title" for "subsection (a)".

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.

§3153. Contingency program management matters covered

The joint policy for contingency program management required by section 3151 of this title shall, at a minimum, provide for the following:

(1) The assignment of a senior commissioned officer or civilian member of the senior executive service, with appropriate program management experience and qualifications, to act as head of program management during combat operations, post-conflict operations, and contingency operations, including stabilization and reconstruction operations involving multiple United States Government agencies and international organizations, if required.

(2) A preplanned organizational approach to program management during combat operations, post-conflict operations, and contingency operations that is designed to ensure that the Department of Defense is prepared to conduct such program management.

(3) Identification of a deployable cadre of experts, with the appropriate tools and authority, and trained in processes under paragraph (6).

(4) Utilization of the hiring and appointment authorities necessary for the rapid deployment of personnel to ensure the availability of key personnel for sufficient lengths of time to provide for continuing program and project management.

(5) A requirement to provide training (including training under a program to be created by the Defense Acquisition University) to program management personnel in—

(A) the use of laws, regulations, policies, and directives related to program management in combat or contingency environments;

(B) the integration of cost, schedule, and performance objectives into practical acquisition strategies aligned with available resources and subject to effective oversight; and

(C) procedures of the Department of Defense related to funding mechanisms and contingency contract management.

(6) Appropriate steps to ensure that training is maintained for such personnel even when they are not deployed in a contingency operation.

(7) Such steps as may be needed to ensure jointness and cross-service coordination in the area of program management during contingency operations.

(Added and amended Pub. L. 116–283, div. A, title XVIII, §1810(a), (b)(3), Jan. 1, 2021, 134 Stat. 4162, 4163.)

Editorial Notes

Codification

The text of subsec. (c) of section 2333 of this title, which was transferred to this section and amended by Pub. L. 116–283, §1810(b)(3), was based on Pub. L. 109–364, div. A, title VIII, §854(a)(1), Oct. 17, 2006, 120 Stat. 2343.

Amendments

2021—Pub. L. 116–283, §1810(b)(3), transferred subsec. (c) of section 2333 of this title to this section and, in introductory provisions, struck out subsec. (c) designation and heading "Contingency Program Management Matters Covered" at beginning and substituted "section 3151 of this title" for "subsection (a)".

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.

Enhancement of Interagency Support During Contingency Operations and Transition Periods

Pub. L. 114–328, div. A, title XII, §1281, Dec. 23, 2016, 130 Stat. 2541, provided that:

"(a) Authority.—The Secretary of Defense and the Secretary of State may enter into an agreement under which each Secretary may provide covered support, supplies, and services on a reimbursement basis, or by exchange of covered support, supplies, and services, to the other Secretary during a contingency operation and related transition period for up to 2 years following the end of such contingency operation.

"(b) Agreement.—An agreement entered into under this section shall be in writing and shall include the following terms:

"(1) The price charged by a supplying agency shall be the direct costs that such agency incurred by providing the covered support, supplies, or services to the requesting agency under this section.

"(2) Credits and liabilities of the agencies accrued as a result of acquisitions and transfers of covered support, supplies, and services under this section shall be liquidated not less often than once every 3 months by direct payment to the agency supplying such support, supplies, or services by the agency receiving such support, supplies, or services.

"(3) Exchange entitlements accrued as a result of acquisitions and transfers of covered support, supplies, and services under this section shall be satisfied within 12 months after the date of the delivery of the covered support, supplies, or services. Exchange entitlements not so satisfied shall be immediately liquidated by direct payment to the agency supplying such covered support, supplies, or services.

"(c) Effect of Obligation and Availability of Funds.—An order placed by an agency pursuant to an agreement under this section is deemed to be an obligation in the same manner that a similar order placed under a contract with, or a contract for similar goods or services awarded to, a private contractor is an obligation. Appropriations remain available to pay an obligation to the servicing agency in the same manner as appropriations remain available to pay an obligation to a private contractor.

"(d) Definitions.—In this section:

"(1) Covered support, supplies, and services.—The term 'covered support, supplies, and services' means food, billeting, transportation (including airlift), petroleum, oils, lubricants, communications services, medical services, ammunition, base operations support, use of facilities, spare parts and components, repair and maintenance services, and calibration services.

"(2) Contingency operation.—The term 'contingency operation' has the meaning given that term in section 101(a)(13) of title 10, United States Code.

"(e) Crediting of Receipts.—Any receipt as a result of an agreement entered into under this section shall be credited, at the option of the Secretary of Defense with respect to the Department of Defense and the Secretary of State with respect to the Department of State, to—

"(1) the appropriation, fund, or account used in incurring the obligation; or

"(2) an appropriate appropriation, fund, or account currently available for the purposes for which the expenditures were made.

"(f) Notification.—Not later than 30 days after the end of a fiscal year in which covered support, supplies, and services are provided or exchanged pursuant to an agreement under this section, the Secretary of Defense and the Secretary of State shall jointly submit to the congressional defense committees [Committees on Armed Services and Appropriations of the Senate and the House of Representatives], the Committee on Foreign Relations of the Senate, and the Committee on Foreign Affairs of the House of Representatives a notification that contains a copy of such agreement and a description of such covered support, supplies, and services."

§3154. Contingency contracting matters covered

(a) In General.—The joint policy for contingency contracting required by section 3151 of this title shall, at a minimum, provide for the following:

(1) The designation of a senior commissioned officer or civilian member of the senior executive service in each military department with the responsibility for administering the policy.

(2) The assignment of a senior commissioned officer with appropriate acquisition experience and qualifications to act as head of contingency contracting during combat operations, post-conflict operations, and contingency operations, who shall report directly to the commander of the combatant command in whose area of responsibility the operations occur.

(3) A sourcing approach to contingency contracting that is designed to ensure that each military department is prepared to conduct contingency contracting during combat operations, post-conflict operations, and contingency operations, including stabilization and reconstruction operations involving interagency organizations, if required.

(4) A requirement to provide training (including training under a program to be created by the Defense Acquisition University) to contingency contracting personnel in—

(A) the use of law, regulations, policies, and directives related to contingency contracting operations;

(B) the appropriate use of rapid acquisition methods, including the use of exceptions to competition requirements under sections 3201 through 3205 of this title, sealed bidding, letter contracts, indefinite delivery-indefinite quantity task orders, set asides under section 8(a) of the Small Business Act (15 U.S.C. 637(a)), undefinitized contract actions, and other tools available to expedite the delivery of goods and services during combat operations or post-conflict operations;

(C) the appropriate use of rapid acquisition authority, commanders' emergency response program funds, and other tools unique to contingency contracting; and

(D) instruction on the necessity for the prompt transition from the use of rapid acquisition authority to the use of full and open competition and other methods of contracting that maximize transparency in the acquisition process.

(5) Appropriate steps to ensure that training is maintained for such personnel even when they are not deployed in a contingency operation.

(6) Such steps as may be needed to ensure jointness and cross-service coordination in the area of contingency contracting.

(b) Interagency Plans.—To the extent practicable, the joint policy for contingency contracting required by section 3151 of this title should be taken into account in the development of interagency plans for stabilization and reconstruction operations, consistent with the report submitted by the President under section 1035 of the John Warner National Defense Authorization Act for Fiscal Year 2007 (Public Law 109–364; 120 Stat. 2388) on interagency operating procedures for the planning and conduct of stabilization and reconstruction operations.

(Added and amended Pub. L. 116–283, div. A, title XVIII, §1810(a), (b)(4), (c), Jan. 1, 2021, 134 Stat. 4162–4164.)

Editorial Notes

References in Text

Section 1035 of the John Warner National Defense Authorization Act for Fiscal Year 2007, referred to in subsec. (b), is section 1035 of Pub. L. 109–364, div. A, title X, Oct. 17, 2006, 120 Stat. 2388, which is not classified to the Code.

Codification

The text of subsec. (d) of section 2333 of this title, which was transferred to this section and amended by Pub. L. 116–283, §1810(b)(4), (c), was based on Pub. L. 109–364, div. A, title VIII, §854(a)(1), Oct. 17, 2006, 120 Stat. 2343Pub. L. 111–84, div. A, title X, §1073(a)(23)(A), (B), Oct. 28, 2009, 123 Stat. 2473.

Amendments

2021—Subsec. (a). Pub. L. 116–283, §1810(b)(4)(A), (C), (D), substituted "In General" for "Contingency Contracting Matters Covered" in heading and "section 3151 of this title" for "subsection (a)" in introductory provisions, struck out par. (1) designation at beginning, redesignated subpars. (A) to (F) as pars. (1) to (6), respectively, and, in par. (4), redesignated cls. (i) to (iv) as subpars. (A) to (D), respectively. Former par. (2) redesignated subsec. (b).

Pub. L. 116–283, §1810(b)(4), redesignated subsec. (d) of section 2333 of this title as subsec. (a) of this section.

Subsec. (a)(4)(B). Pub. L. 116–283, §1810(c), substituted "sections 3201 through 3205" for "section 2304".

Subsec. (b). Pub. L. 116–283, §1810(b)(4)(B), (C), redesignated par. (2) of subsec. (a) as subsec. (b), inserted heading, and substituted "section 3151 of this title" for "subsection (a)".

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.

§3155. Training for personnel outside acquisition workforce

(a) Required Training.—The joint policy for requirements definition, contingency program management, and contingency contracting required by section 3151 of this title shall provide for training of military personnel outside the acquisition workforce (including operational field commanders and officers performing key staff functions for operational field commanders) who are expected to have acquisition responsibility, including oversight duties associated with contracts or contractors, during combat operations, post-conflict operations, and contingency operations.

(b) Scope of Training.—Training under subsection (a) shall be sufficient to ensure that the military personnel referred to in that subsection—

(1) understand the scope and scale of contractor support they will experience in contingency operations; and

(2) are prepared for their roles and responsibilities with regard to—

(A) requirements definition;

(B) program management (including contractor oversight); and

(C) contingency contracting.

(Added and amended Pub. L. 116–283, div. A, title XVIII, §1810(a), (b)(5), Jan. 1, 2021, 134 Stat. 4162, 4163.)

Editorial Notes

Codification

The text of subsec. (e)(1) and (2) of section 2333 of this title, which was transferred to this section and amended by Pub. L. 116–283, §1810(b)(5), was based on Pub. L. 110–181, div. A, title VIII, §849(a), Jan. 28, 2008, 122 Stat. 245.

Amendments

2021—Subsec. (a). Pub. L. 116–283, §1810(b)(5)(A), (B), redesignated subsec. (e)(1) and (2) of section 2333 of this title as subsec. (a) of this section, in heading, substituted "Required Training" for "Training for Personnel Outside Acquisition Workforce", and, in text, struck out par. (1) designation at beginning and substituted "section 3151 of this title" for "subsection (a)". Par. (2) subsequently redesignated subsec. (b).

Subsec. (b). Pub. L. 116–283, §1810(b)(5)(C), redesignated subsec. (a)(2) as (b), inserted heading, and substituted "Training under subsection (a)" for "Training under paragraph (1)" and "referred to in that subsection—" and pars. (1) and (2) for "referred to in that paragraph understand the scope and scale of contractor support they will experience in contingency operations and are prepared for their roles and responsibilities with regard to requirements definition, program management (including contractor oversight), and contingency contracting."

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.

§3156. Mission readiness exercises

The joint policy required by section 3151 of this title shall also provide for the incorporation of contractors and contract operations in mission readiness exercises for operations that will include contracting and contractor support.

(Added and amended Pub. L. 116–283, div. A, title XVIII, §1810(a), (b)(6), Jan. 1, 2021, 134 Stat. 4162, 4164.)

Editorial Notes

Codification

The text of subsec. (e)(3) of section 2333 of this title, which was transferred to this section and amended by Pub. L. 116–283, §1810(b)(6), was based on Pub. L. 110–181, div. A, title VIII, §849(a), Jan. 28, 2008, 122 Stat. 245.

Amendments

2021—Pub. L. 116–283, §1810(b)(6), transferred subsec. (e)(3) of section 2333 of this title to this section, struck out par. (3) designation at beginning, and inserted "required by section 3151 of this title" after "The joint policy".

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.

§3157. Definitions; applicability

In this subchapter:

(1) Requirements definition.—The term "requirements definition" means the process of translating policy objectives and mission needs into specific requirements, the description of which will be the basis for awarding acquisition contracts for projects to be accomplished, work to be performed, or products to be delivered.

(2) Contingency program management.—The term "contingency program management" means the process of planning, organizing, staffing, controlling, and leading the combined efforts of participating civilian and military personnel and organizations for the management of a specific defense acquisition program or programs during combat operations, post-conflict operations, and contingency operations.

(3) Contingency contracting.—The term "contingency contracting" means all stages of the process of acquiring property or services by the Department of Defense during a contingency operation.

(4) Contingency contracting personnel.—The term "contingency contracting personnel" means members of the armed forces and civilian employees of the Department of Defense who are members of the defense acquisition workforce and, as part of their duties, are assigned to provide support to contingency operations (whether deployed or not).

(Added and amended Pub. L. 116–283, div. A, title XVIII, §1810(a), (b)(7), Jan. 1, 2021, 134 Stat. 4162, 4164.)

Editorial Notes

Codification

The text of subsec. (f)(1), (2), (5), and (6) of section 2333 of this title, which was transferred to this section and amended by Pub. L. 116–283, §1810(b)(7), was based on Pub. L. 109–364, div. A, title VIII, §854(a)(1), Oct. 17, 2006, 120 Stat. 2343; Pub. L. 110–181, div. A, title VIII, §849(a), Jan. 28, 2008, 122 Stat. 245.

Amendments

2021—Pub. L. 116–283, §1810(b)(7), redesignated pars. (6), (5), (2), and (1) of subsec. (f) of section 2333 of this title as pars. (1) to (4), respectively, of this section.

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.

SUBCHAPTER II—[RESERVED]

        

Editorial Notes

Amendments

Pub. L. 117–81, div. A, title XVII, §1701(i)(2)(B), Dec. 27, 2021, 135 Stat. 2141, generally amended Pub. L. 116–283, div. A, title XVIII, §1810(d), Jan. 1, 2021, 134 Stat. 4164, which added this analysis, by substituting "[RESERVED]" for "OTHER PROVISIONS RELATING TO OPERATIONAL CONTRACT SUPPORT" in subchapter II heading and "[Reserved]" for "Contracts for property or services in support of a contingency operation: competition and review" in item 3171 and for "Operational contract support: chain of authority and responsibility within Department of Defense" in item 3172, thereby omitting this analysis.

§3171. [Reserved]

(Added Pub. L. 116–283, div. A, title XVIII, §1810(d), Jan. 1, 2021, 134 Stat. 4164; amended Pub. L. 117–81, div. A, title XVII, §1701(i)(2)(B), Dec. 27, 2021, 135 Stat. 2141.)

Editorial Notes

Amendments

2021—Pub. L. 117–81, §1701(i)(2)(B), amended Pub. L. 116–283, §1810(d), which enacted this section, by substituting "[Reserved]" for "Contracts for property or services in support of a contingency operation: competition and review" in section catchline.

Statutory Notes and Related Subsidiaries

Effective Date of 2021 Amendment

Amendment made to Pub. L. 116–283 by Pub. L. 117–81, resulting in omission of this section, applicable as if included in the enactment of title XVIII of Pub. L. 116–283 as enacted, see section 1701(a)(2) of Pub. L. 117–81, set out in a note preceding section 3001 of this title and Effective Date note below.

Effective Date

Section 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.

§3172. [Reserved]

(Added Pub. L. 116–283, div. A, title XVIII, §1810(d), Jan. 1, 2021, 134 Stat. 4164; amended Pub. L. 117–81, div. A, title XVII, §1701(i)(2)(B), Dec. 27, 2021, 135 Stat. 2141.)

Editorial Notes

Amendments

2021—Pub. L. 117–81, §1701(i)(2)(B), amended Pub. L. 116–283, §1810(d), which enacted this section, by substituting "[Reserved]" for "Operational contract support: chain of authority and responsibility within Department of Defense" in section catchline.

Statutory Notes and Related Subsidiaries

Effective Date of 2021 Amendment

Amendment made to Pub. L. 116–283 by Pub. L. 117–81, resulting in omission of this section, applicable as if included in the enactment of title XVIII of Pub. L. 116–283 as enacted, see section 1701(a)(2) of Pub. L. 117–81, set out in a note preceding section 3001 of this title and Effective Date note below.

Effective Date

Section 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.

Subpart B—Acquisition Planning

Editorial Notes

Amendments

2018—Pub. L. 115–232, div. A, title VIII, §801(a), Aug. 13, 2018, 132 Stat. 1827, added subpart heading.

CHAPTER 221—PLANNING AND SOLICITATION GENERALLY

        

Editorial Notes

Prior Provisions

A prior chapter 221 "PLANNING AND SOLICITATION GENERALLY", as added by Pub. L. 115–232, div. A, title VIII, §801(a), Aug. 13, 2018, 132 Stat. 1827, and consisting of reserved section 3201, was repealed by Pub. L. 116–283, div. A, title XVIII, §1811(b), Jan. 1, 2021, 134 Stat. 4164.

Statutory Notes and Related Subsidiaries

Policy on Qualifications of Contractors for Into-Plane Fuel Deliveries for Heavy-Lift Aircraft

Pub. L. 118–159, div. A, title I, §163, Dec. 23, 2024, 138 Stat. 1817, provided that:

"(a) Establishment of Policy.—Not later than one year after the date of the enactment of this Act [Dec. 23, 2024], the Director of the Defense Logistics Agency shall develop and implement a policy pursuant to which acquisition planning shall be performed for any contract providing for the into-plane procurement for heavy-lift aircraft of an estimated 5,000,000 gallons or more of aviation fuel per year within the continental United States.

"(b) Use of Evaluation Factors.—As part of the acquisition planning required under subsection (a), the Director of the Defense Logistics Agency shall determine whether to use evaluation factors to assess the qualifications of fixed-based operators bidding on contracts described in such subsection. In the event the Director determines it is appropriate to use such evaluation factors, the factors may include the following:

"(1) Whether the fixed-base operator is able to maintain sufficient onsite fuel storage.

"(2) Whether the fixed-base operator's total number of employees is sufficient to service military customers.

"(3) Whether the fixed-based operator is capable of performing a sufficient range of cargo on-load, off-load, and handling operations, including for dangerous goods and cargo, for military aircraft of all sizes.

"(4) Whether the fixed-based operator has acceptable past performance history on similar procurements.

"(5) Any other factors the Director determines appropriate.

"(c) Consultation.—The Director of the Defense Logistics Agency shall, as appropriate, consult with appropriate personnel of the military departments in developing mission requirements at commercial airports for purposes of the acquisition planning required under subsection (a).

"(d) Heavy-lift Aircraft Defined.—In this section, the term 'heavy-lift aircraft' means an aircraft with a maximum gross takeoff weight in excess of 107,000 pounds."

Procurement of Cleaning Products

Pub. L. 118–159, div. A, title VIII, §856, Dec. 23, 2024, 138 Stat. 1997, provided that: "The Secretary of Defense shall procure, to the maximum extent practicable, only those cleaning products that are identified—

"(1) under the Safer Choice program; or

"(2) by an independent third-party organization that provides certifications in a manner consistent with the Safer Choice program."

Procurement of Covered Hearing Protection Devices

Pub. L. 118–159, div. A, title VIII, §858, Dec. 23, 2024, 138 Stat. 1998, provided that:

"(a) In General.—The Secretary of Defense, in coordination with the head of the Hearing Center of Excellence, may enter into one or more contracts to procure covered hearing protection devices for members of the Armed Forces.

"(b) Prioritization.—The Secretary shall prioritize the award of such a contract to a domestic offeror.

"(c) Definitions.—In this section:

"(1) The term 'covered hearing protection device' means an active hearing protection device—

"(A) that is a commercially available off-the-shelf item (as defined in section 104 of title 41, United States Code); and

"(C) [sic] that has been identified, tested, and qualified by the Hearing Center of Excellence.

"(2) The term 'Hearing Center of Excellence' means the center of excellence for hearing loss and auditory system injury established pursuant to section 721 of the Duncan Hunter National Defense Authorization Act for Fiscal Year 2009 (Public Law 110–417) [10 U.S.C. 1071 note]."

Procurement of Department of Defense Batteries

Pub. L. 118–159, div. A, title VIII, §883, Dec. 23, 2024, 138 Stat. 2018, provided that:

"(a) In General.—The Secretary of Defense shall—

"(1) coordinate a Department of Defense-wide approach to establishing a battery strategy to further leverage the advancements of domestic and allied commercial industry with respect to batteries; and

"(2) in coordination with the Secretaries of the military departments and the other relevant elements of the Department of Defense, identify mechanisms for measuring and addressing risks to the defense supply chain, diminishing manufacturing capability, and material shortages for legacy system batteries by transitioning the Department to safer batteries with higher energy capabilities with supply chain growth.

"(b) Legacy Battery Strategy Contents.—The strategy established pursuant to subsection (a)(1) strategy shall include the following:

"(1) The establishment of a Department of Defense-wide accounting of advanced batteries for current and future applications, including obsolete batteries in existing systems, and improved mechanisms for aligning the battery procurement requirements across the Department.

"(2) Requirements for the supply chain for batteries for the Department of Defense to enable to [sic] Department to leverage advancements by domestic industry and industry located in allies of the United States with respect to batteries.

"(3) The application of the requirements described in paragraph (2) to the near-term, mid-term, and long-term horizons of the Department.

"(4) Creating a Department of Defense-wide Science and Technology battery strategy, in coordination with the military services, to define an approach, technical targets, and link into procurement activities.

"(5) Consideration of the existing battery strategies completed by the services.

"(6) A determination of how the military services can standardize the battery systems across the existing and future programs of such Armed Service.

"(7) Identify obstacles with respect to the raw materials required to achieve the goals of the strategy established pursuant to subsection (a)(1) and determine ways to overcome such obstacles, including through the Industrial Base Analysis and Sustainment program of the Department of Defense and the use of authorities under the Defense Production Act [of 1950] (50 U.S.C. 4501 et seq.).

"(8) Processes and guidelines for rapid testing and certification to field batteries.

"(9) A discussion of the workforce challenges, if any, that may inhibit the Department of Defense from achieving the goals of the strategy established pursuant to subsection (a)(1).

"(c) Briefings and Final Report.—

"(1) Initial briefing.—Not later than 180 days after enactment [probably means the date of the enactment of this Act, Dec. 23, 2024], the Secretary of Defense, in consultation with the Secretaries of the military departments and the other relevant elements of the Department of Defense, shall brief the Committees on Armed Services of the Senate and [the] House of Representatives on the approach to establishing the strategy described in subsection (a)(1).

"(2) Update briefings.—Not later than 180 days after the date of the briefing under paragraph (1), and not less frequently than every 6 months thereafter until the strategy described in subsection (a)(1) is established, the Secretary of Defense, in consultation with the Secretaries of the military departments and the other relevant elements of the Department of Defense, shall provide to the Committees on Armed Services of the Senate and House of Representatives a briefing on the status of the establishment of such strategy.

"(3) Final report.—Not later than September 30, 2026, the Secretary of Defense, in consultation with the Secretaries of the military departments and the other relevant elements of the Department of Defense, shall submit to the Committees on Armed Services of the Senate and the House of Representatives a final report on the establishment of the strategy pursuant to subsection (a).

"(d) Military Department Defined.—In this section, the term 'military department' has the meaning given such term in section 101(a) of title 10, United States Code."

Prohibition on Solicitation of Proprietary Armor for Certain Tactical Vehicles

Pub. L. 118–31, div. A, title I, §153, Dec. 22, 2023, 137 Stat. 180, provided that:

"(a) Prohibition.—The Secretary of Defense may not include in a solicitation for a tactical tracked vehicle or tactical wheeled vehicle a requirement that such vehicle use proprietary armor.

"(b) Applicability.—Subsection (a) shall not apply to a contract for the procurement of a tactical tracked vehicle or tactical wheeled vehicle entered into before the date of the enactment of this Act [Dec. 22, 2023]."

Defense Industrial Base Munition Surge Capacity Critical Reserve

Pub. L. 118–31, div. A, title II, §245, Dec. 22, 2023, 137 Stat. 210, provided that:

"(a) In General.—The Under Secretary of Defense for Acquisition and Sustainment, in coordination with the service acquisition executive of each military department, may establish a reserve of long-lead items and components to accelerate the delivery of munitions described in section 222c(c) of title 10, United States Code.

"(b) Quantity.—The quantity of long-lead items and components reserved pursuant to subsection (a) should be in amounts commensurate to fulfill the requirements identified as Out-Year Unconstrained Total Munitions Requirement and Out-Year inventory numbers under section 222c(a) of title 10, United States Code.

"(c) Authority for Advance Procurement.—The Under Secretary of Defense for Acquisition and Sustainment may enter into one or more contracts, beginning in fiscal year 2024, for the advance procurement of long-lead items and components, or economic order quantities of such items and components when cost savings are achievable, associated with munitions identified in subsection (a). Advance procurement authority may include the cost of shipping, storage, tracking, maintenance, and obsolescence management of long-lead items and components while held in the reserve described in subsection (a).

"(d) Limitations.—No long-lead item or component may be procured under this section if the anticipated life cycle of such item or component requires disposal due to lack of military utility less than 8 years after such item or component is procured.

"(e) Report.—Not later than February 1, 2025, and annually thereafter until February 1, 2030, the Under Secretary of Defense for Acquisition and Sustainment shall submit to the congressional defense committees [Committees on Armed Services and Appropriations of the Senate and the House of Representatives] a report that describes the use of the authority under this section, including—

"(1) the type, number, and value of long-lead items and components procured under each contractual action; and

"(2) information about the location of storage of such items and components.

"(f) Definitions.—In this section:

"(1) The term 'long-lead item or component' means a material, component, or subsystem of a munition that must be procured well in advance of the need for such munition.

"(2) The terms 'service acquisition executive' and 'military department' have the meanings given, respectively, in section 101 of title 10, United States Code."

Restriction on Procurement or Purchasing by Department of Defense of Turnout Gear for Firefighters Containing Perfluoroalkyl Substances or Polyfluoroalkyl Substances

Pub. L. 117–263, div. A, title III, §345, Dec. 23, 2022, 136 Stat. 2530, provided that:

"(a) Prohibition on Procurement and Purchasing.—Subject to subsection (d), beginning on October 1, 2026, the Secretary of Defense may not enter into a contract to procure or purchase covered personal protective firefighting equipment for use by Federal or civilian firefighters if such equipment contains an intentionally added perfluoroalkyl substance or polyfluoroalkyl substance.

"(b) Implementation.—

"(1) Inclusion in contracts.—The Secretary of Defense shall include the prohibition under subsection (a) in any contract entered into by the Department of Defense to procure covered personal protective firefighting equipment for use by Federal or civilian firefighters.

"(2) No obligation to test.—In carrying out the prohibition under subsection (a), the Secretary shall not have an obligation to test covered personal protective firefighting equipment to confirm the absence of perfluoroalkyl substances or polyfluoroalkyl substances.

"(c) Existing Inventory.—Nothing in this section shall impact existing inventories of covered personal protective firefighting equipment.

"(d) Availability of Alternatives.—

"(1) In general.—The requirement under subsection (a) shall be subject to the availability of sufficiently protective covered personal protective firefighting equipment that does not contain intentionally added perfluoroalkyl substances or polyfluoroalkyl substances.

"(2) Extension of effective date.—If the Secretary of Defense determines that no sufficiently protective covered personal protective firefighting equipment that does not contain intentionally added perfluoroalkyl substances or polyfluoroalkyl substances is available, the deadline under subsection (a) shall be extended until the Secretary determines that such covered personal protective firefighting equipment is available.

"(e) Definitions.—In this section:

"(1) The term 'covered personal protective firefighting equipment' means—

"(A) any product that provides protection to the upper and lower torso, arms, legs, head, hands, and feet; or

"(B) any other personal protective firefighting equipment, as determined by the Secretary of Defense.

"(2) The term 'perfluoroalkyl substance' means a man-made chemical of which all of the carbon atoms are fully fluorinated carbon atoms.

"(3) The term 'polyfluoroalkyl substance' means a man-made chemical containing at least one fully fluorinated carbon atom and at least one non-fully fluorinated carbon atom."

Middle Tier of Acquisition for Rapid Prototyping and Rapid Fielding

Pub. L. 116–92, div. A, title VIII, §837, Dec. 20, 2019, 133 Stat. 1497, provided that:

"(a) Report.—Not later than December 15, 2019, the Under Secretary of Defense for Acquisition and Sustainment shall submit to the congressional defense committees [Committees on Armed Services and Appropriations of the Senate and the House of Representatives] a report that includes the guidance required under [former] section 804(a) of the National Defense Authorization Act for Fiscal Year 2016 (Public Law 114–92; 10 U.S.C. 2302 note [former 10 U.S.C. 3201 note prec., formerly set out below] [see 10 U.S.C. 3602(a)]). The Under Secretary of Defense for Acquisition and Sustainment shall ensure such guidance includes the business case elements required by an acquisition program established pursuant to such guidance and the metrics required to assess the performance of such a program.

"(b) Limitation.—

"(1) In general.—Beginning on December 15, 2019, if the Under Secretary of Defense for Acquisition and Sustainment has not submitted the report required under subsection (a), not more than 75 percent of the funds specified in paragraph (2) may be obligated or expended until the date on which the report required under subsection (a) has been submitted.

"(2) Funds specified.—The funds specified in this paragraph are the funds authorized to be appropriated by this Act or otherwise made available for fiscal year 2020 for the Department of Defense that remain unobligated as of December 15, 2019, for the following:

"(A) The execution of any acquisition program established pursuant to the guidance required under such [former] section 804(a) [see 10 U.S.C. 3602(a)].

"(B) The operations of the Office of the Under Secretary of Defense for Research & Engineering.

"(C) The operations of the Office of the Under Secretary of Defense for Acquisition & Sustainment.

"(D) The operations of the Office of the Director of Cost Analysis and Program Evaluation.

"(E) The operations of the offices of the service acquisition executives of the military departments."

Pub. L. 114–92, div. A, title VIII, §804, Nov. 25, 2015, 129 Stat. 882, as amended by Pub. L. 114–328, div. A, title VIII, §§849(a), 864(b), 897, title X, §1081(c)(2), Dec. 23, 2016, 130 Stat. 2293, 2304, 2327, 2419; Pub. L. 115–91, div. A, title VIII, §866, Dec. 12, 2017, 131 Stat. 1495; Pub. L. 116–92, div. A, title IX, §902(33), Dec. 20, 2019, 133 Stat. 1546; Pub. L. 116–283, div. A, title VIII, §805, Jan. 1, 2021, 134 Stat. 3742, which authorized the Under Secretary of Defense for Acquisition and Sustainment, in consultation with the Comptroller of the Department of Defense and the Vice Chairman of the Joint Chiefs of Staff, to establish guidance for a middle tier of acquisition programs covering rapid prototyping and rapid fielding pathways, was repealed by Pub. L. 118–159, div. A, title VIII, §804(b), Dec. 23, 2024, 138 Stat. 1968. See section 3602 of this title.

Use of Alternative Acquisition Paths To Acquire Critical National Security Capabilities

Pub. L. 114–92, div. A, title VIII, §805, Nov. 25, 2015, 129 Stat. 885, as amended by Pub. L. 114–328, div. A, title VIII, §849(b), Dec. 23, 2016, 130 Stat. 2293, provided that: "Not later than 180 days after the date of the enactment of this Act [Nov. 25, 2015], the Secretary of Defense shall establish procedures for alternative acquisition pathways to acquire capital assets and services that meet critical national security needs. The procedures shall—

"(1) be separate from existing acquisition procedures;

"(2) be supported by streamlined contracting, budgeting, life-cycle cost management, and requirements processes;

"(3) establish alternative acquisition paths based on the capabilities being bought and the time needed to deploy these capabilities; and

"(4) maximize the use of flexible authorities in existing law and regulation."

Review and Justification of Pass-Through Contracts

Pub. L. 112–239, div. A, title VIII, §802, Jan. 2, 2013, 126 Stat. 1824, provided that: "Not later than 180 days after the date of the enactment of this Act [Jan. 2, 2013], the Secretary of Defense, the Secretary of State, and the Administrator of the United States Agency for International Development shall issue such guidance and regulations as may be necessary to ensure that in any case in which an offeror for a contract or a task or delivery order informs the agency pursuant to section 52.215-22 of the Federal Acquisition Regulation that the offeror intends to award subcontracts for more than 70 percent of the total cost of work to be performed under the contract, task order, or delivery order, the contracting officer for the contract is required to—

"(1) consider the availability of alternative contract vehicles and the feasibility of contracting directly with a subcontractor or subcontractors that will perform the bulk of the work;

"(2) make a written determination that the contracting approach selected is in the best interest of the Government; and

"(3) document the basis for such determination."

Review of Acquisition Process for Rapid Fielding of Capabilities in Response to Urgent Operational Needs

Pub. L. 111–383, div. A, title VIII, §804, Jan. 7, 2011, 124 Stat. 4256, which required a review of, and subsequent report on, the process for the fielding of capabilities in response to urgent operational needs, was repealed by Pub. L. 117–263, div. A, title VIII, §804(c)(1), Dec. 23, 2022, 136 Stat. 2701.

Internal Controls for Procurements on Behalf of the Department of Defense

Pub. L. 110–417, [div. A], title VIII, §804(a)–(c), Oct. 14, 2008, 122 Stat. 4519, provided that:

"(a) Inclusion of Additional Non-Defense Agencies in Review.—The covered non-defense agencies specified in subsection (c) of this section shall be considered covered non-defense agencies as defined in subsection (i) of section 817 of the John Warner National Defense Authorization Act for Fiscal Year 2007 (Public Law 109–364; 120 Stat. 2326) [set out below] for purposes of such section.

"(b) Deadlines and Applicability for Additional Non-Defense Agencies.—For each covered non-defense agency specified in subsection (c) of this section, section 817 of the John Warner National Defense Authorization Act for Fiscal Year 2007 (Public Law 109–364; 120 Stat. 2326) shall apply to such agency as follows:

"(1) The review and determination required by subsection (a)(1) of such section shall be completed by not later than March 15, 2009.

"(2) The review and determination required by subsection (a)(2) of such section, if necessary, shall be completed by not later than June 15, 2010, and such review and determination shall be a review and determination of such agency's procurement of property and services on behalf of the Department of Defense in fiscal year 2009.

"(3) The memorandum of understanding required by subsection (c)(1) of such section shall be entered into by not later than 60 days after the date of the enactment of this Act [Oct. 14, 2008].

"(4) The limitation specified in subsection (d)(1) of such section shall apply after March 15, 2009, and before June 16, 2010.

"(5) The limitation specified in subsection (d)(2) of such section shall apply after June 15, 2010.

"(6) The limitation required by subsection (d)(3) of such section shall commence, if necessary, on the date that is 60 days after the date of the enactment of this Act.

"(c) Definition of Covered Non-Defense Agency.—In this section, the term 'covered non-defense agency' means each of the following:

"(1) The Department of Commerce.

"(2) The Department of Energy."

Pub. L. 110–181, div. A, title VIII, §801, Jan. 28, 2008, 122 Stat. 202, as amended by Pub. L. 110–417, [div. A], title VIII, §804(d), Oct. 14, 2008, 122 Stat. 4519; Pub. L. 111–84, div. A, title VIII, §806, Oct. 28, 2009, 123 Stat. 2404; Pub. L. 112–81, div. A, title VIII, §817, Dec. 31, 2011, 125 Stat. 1493; Pub. L. 112–239, div. A, title VIII, §§801, 805, Jan. 2, 2013, 126 Stat. 1824, 1826; Pub. L. 113–291, div. A, title X, §1071(d)(1)(B), Dec. 19, 2014, 128 Stat. 3509; Pub. L. 116–92, div. A, title IX, §902(42), Dec. 20, 2019, 133 Stat. 1547; Pub. L. 116–283, div. A, title XVIII, §1806(e)(5), Jan. 1, 2021, 134 Stat. 4156, provided that:

"(a) Inspectors General Reviews and Determinations.—

"(1) In general.—For each covered non-defense agency, the Inspector General of the Department of Defense and the Inspector General of such covered non-defense agency may jointly—

"(A) review—

"(i) the procurement policies, procedures, and internal controls of such covered non-defense agency that are applicable to the procurement of property and services on behalf of the Department by such covered non-defense agency; and

"(ii) the administration of such policies, procedures, and internal controls; and

"(B) determine in writing whether such covered non-defense agency is or is not compliant with applicable procurement requirements.

"(2) Separate reviews and determinations.—The Inspector General of the Department of Defense and the Inspector General of a covered non-defense agency may by joint agreement conduct separate reviews of the procurement of property and services on behalf of the Department of Defense that are conducted by separate business units, or under separate government-wide acquisition contracts, of the covered non-defense agency. If such separate reviews are conducted, the Inspectors General shall make a separate determination under paragraph (1)(B) with respect to each such separate review.

"(3) Memoranda of understanding for reviews and determinations.—Not later than one year before a review and determination is to be performed under this subsection with respect to a covered non-defense agency, the Inspector General of the Department of Defense and the Inspector General of the covered non-defense agency may enter into a memorandum of understanding with each other to carry out such review and determination.

"(4) Termination of non-compliance determination.—If the Inspector General of the Department of Defense and the Inspector General of a covered non-defense agency determine, pursuant to paragraph (1)(B), that a covered non-defense agency is not compliant with applicable procurement requirements, the Inspectors General may terminate such a determination effective on the date on which the Inspectors General jointly—

"(A) determine that the non-defense agency is compliant with applicable procurement requirements; and

"(B) notify the Secretary of Defense of that determination.

"(5) Resolution of disagreements.—If the Inspector General of the Department of Defense and the Inspector General of a covered non-defense agency are unable to agree on a joint determination under this subsection, a determination by the Inspector General of the Department of Defense under this subsection shall be conclusive for the purposes of this section.

"(b) Limitation on Procurements on Behalf of Department of Defense.—

"(1) Except as provided in paragraph (2), an acquisition official of the Department of Defense may place an order, make a purchase, or otherwise procure property or services for the Department of Defense in excess of the simplified acquisition threshold through a non-defense agency only if—

"(A) in the case of a procurement by any non-defense agency in any fiscal year, the head of the non-defense agency has certified that the non-defense agency will comply with applicable procurement requirements for the fiscal year;

"(B) in the case of—

"(i) a procurement by a covered non-defense agency in a fiscal year for which a memorandum of understanding is to be entered into under subsection (a)(3), the Inspector General of the Department of Defense and the Inspector General of the covered non-defense agency have entered into such a memorandum of understanding; or

"(ii) a procurement by a covered non-defense agency in a fiscal year following the Inspectors General review and determination provided for under subsection (a), the Inspectors General have determined that a covered non-defense agency is compliant with applicable procurement requirements or have terminated a prior determination of non-compliance in accordance with subsection (a)(4); and

"(C) the procurement is not otherwise prohibited by section 817 of the John Warner National Defense Authorization Act for Fiscal Year 2007 (Public Law 109–364) or section 811 of the National Defense Authorization Act for Fiscal Year 2006 (Public Law 109–163) [see notes below].

"(2) Exception for procurements of necessary property and services.—

"(A) In general.—The limitation in paragraph (1) shall not apply to the procurement of property and services on behalf of the Department of Defense by a non-defense agency during any fiscal year for which there is in effect a written determination of the Under Secretary of Defense for Acquisition and Sustainment that it is necessary in the interest of the Department of Defense to procure property and services through the non-defense agency during such fiscal year.

"(B) Scope of particular exception.—A written determination with respect to a non-defense agency under subparagraph (A) shall apply to any category of procurements through the non-defense agency that is specified in the determination.

"(3) Treatment of procurements under joint programs with intelligence community.—For purposes of this subsection, a contract entered into by a non-defense agency that is an element of the intelligence community (as defined in section 3(4) of the National Security Act of 1947 (50 U.S.C. 3003(4))) for the performance of a joint program conducted to meet the needs of the Department of Defense and the non-defense agency shall not be considered a procurement of property or services for the Department of Defense through a non-defense agency.

"(c) Guidance on Interagency Contracting.—

"(1) Requirement.—Not later than 180 days after the date of enactment of this Act [Jan. 28, 2008], the Secretary of Defense shall issue guidance on the use of interagency contracting by the Department of Defense.

"(2) Matters covered.—The guidance required by paragraph (1) shall address the circumstances in which it is appropriate for Department of Defense acquisition officials to procure goods or services through a contract entered into by an agency outside the Department of Defense. At a minimum, the guidance shall address—

"(A) the circumstances in which it is appropriate for such acquisition officials to use direct acquisitions;

"(B) the circumstances in which it is appropriate for such acquisition officials to use assisted acquisitions;

"(C) the circumstances in which it is appropriate for such acquisition officials to use interagency contracting to acquire items unique to the Department of Defense and the procedures for approving such interagency contracting;

"(D) the circumstances in which it is appropriate for such acquisition officials to use interagency contracting to acquire items that are already being provided under a contract awarded by the Department of Defense;

"(E) tools that should be used by such acquisition officials to determine whether items are already being provided under a contract awarded by the Department of Defense; and

"(F) procedures for ensuring that applicable procurement requirements are identified and communicated to outside agencies involved in interagency contracting.

"(d) Compliance With Applicable Procurement Requirements.—

"(1) Except as provided in paragraph (2), for the purposes of this section, a non-defense agency is compliant with applicable procurement requirements if the procurement policies, procedures, and internal controls of the non-defense agency applicable to the procurement of products and services on behalf of the Department of Defense, and the manner in which they are administered, are adequate to ensure the compliance of the non-defense agency with the following:

"(A) The Federal Acquisition Regulation and other laws and regulations that apply to procurements of property and services by Federal agencies.

"(B) Laws and regulations (including applicable Department of Defense financial management regulations) that apply to procurements of property and services made by the Department of Defense through other Federal agencies.

"(2) In the case of the procurement of property or services on behalf of the Department of Defense through the Work for Others program of the Department of Energy, the laws and regulations applicable under paragraph (1)(B) are the Department of Energy Acquisition Regulations, pertinent interagency agreements, and Department of Defense and Department of Energy policies related to the Work for Others program.

"(e) Treatment of Procurements for Fiscal Year Purposes.—For the purposes of this section, a procurement shall be treated as being made during a particular fiscal year to the extent that funds are obligated by the Department of Defense for the procurement in that fiscal year.

"(f) Definitions.—In this section:

"(1) Non-defense agency.—The term 'non-defense agency' means any department or agency of the Federal Government other than the Department of Defense. Such term includes a covered non-defense agency.

"(2) Covered non-defense agency.—The term 'covered non-defense agency' means each of the following:

"(A) The General Services Administration.

"(B) The Department of the Interior.

"(C) The Department of Veterans Affairs.

"(D) The National Institutes of Health.

"(E) The Department of Commerce.

"(F) The Department of Energy.

"(3) Government-wide acquisition contract.—The term 'government-wide acquisition contract' means a task or delivery order contract that—

"(A) is entered into by a non-defense agency; and

"(B) may be used as the contract under which property or services are procured for one or more other departments or agencies of the Federal Government.

"(4) Simplified acquisition threshold.—The term 'simplified acquisition threshold' has the meaning provided by section 3015(a) of title 10, United States Code.

"(5) Interagency contracting.—The term 'interagency contracting' means the exercise of the authority under section 1535 of title 31, United States Code, or other statutory authority, for Federal agencies to purchase goods and services under contracts entered into or administered by other agencies.

"(6) Acquisition official.—The term 'acquisition official', with respect to the Department of Defense, means—

"(A) a contracting officer of the Department of Defense; or

"(B) any other Department of Defense official authorized to approve a direct acquisition or an assisted acquisition on behalf of the Department of Defense.

"(7) Direct acquisition.—The term 'direct acquisition', with respect to the Department of Defense, means the type of interagency contracting through which the Department of Defense orders an item or service from a government-wide acquisition contract maintained by a non-defense agency.

"(8) Assisted acquisition.—The term 'assisted acquisition', with respect to the Department of Defense, means the type of interagency contracting through which acquisition officials of a non-defense agency award a contract or task or delivery order for the procurement of goods or services on behalf of the Department of Defense."

Pub. L. 109–364, div. A, title VIII, §817, Oct. 17, 2006, 120 Stat. 2326, as amended by Pub. L. 116–92, div. A, title IX, §902(43), Dec. 20, 2019, 133 Stat. 1547, provided that:

"(a) Inspector General Reviews and Determinations.—

"(1) In general.—For each covered non-defense agency, the Inspector General of the Department of Defense and the Inspector General of such non-defense agency shall, not later than March 15, 2007, jointly—

"(A) review—

"(i) the procurement policies, procedures, and internal controls of such non-defense agency that are applicable to the procurement of property and services on behalf of the Department by such non-defense agency; and

"(ii) the administration of those policies, procedures, and internal controls; and

"(B) determine in writing whether—

"(i) such non-defense agency is compliant with defense procurement requirements;

"(ii) such non-defense agency is not compliant with defense procurement requirements, but has a program or initiative to significantly improve compliance with defense procurement requirements;

"(iii) neither of the conclusions stated in clauses (i) and (ii) is correct in the case of such non-defense agency; or

"(iv) such non-defense agency is not compliant with defense procurement requirements to such an extent that the interests of the Department of Defense are at risk in procurements conducted by such non-defense agency.

"(2) Actions following certain determinations.—If the Inspectors General determine under paragraph (1) that a conclusion stated in clause (ii), (iii), or (iv) of subparagraph (B) of that paragraph is correct in the case of a covered non-defense agency, such Inspectors General shall, not later than June 15, 2008, jointly—

"(A) conduct a second review, as described in subparagraph (A) of that paragraph, regarding such non-defense agency's procurement of property or services on behalf of the Department of Defense in fiscal year 2007; and

"(B) determine in writing whether such non-defense agency is or is not compliant with defense procurement requirements.

"(b) Compliance With Defense Procurement Requirements.—For the purposes of this section, a covered non-defense agency is compliant with defense procurement requirements if such non-defense agency's procurement policies, procedures, and internal controls applicable to the procurement of products and services on behalf of the Department of Defense, and the manner in which they are administered, are adequate to ensure such non-defense agency's compliance with the requirements of laws and regulations that apply to procurements of property and services made directly by the Department of Defense.

"(c) Memoranda of Understanding Between Inspectors General.—

"(1) In general.—Not later than 60 days after the date of the enactment of this Act [Oct. 17, 2006], the Inspector General of the Department of Defense and the Inspector General of each covered non-defense agency shall enter into a memorandum of understanding with each other to carry out the reviews and make the determinations required by this section.

"(2) Scope of memoranda.—The Inspector General of the Department of Defense and the Inspector General of a covered non-defense agency may by mutual agreement conduct separate reviews of the procurement of property and services on behalf of the Department of Defense that are conducted by separate business units, or under separate governmentwide acquisition contracts, of such non-defense agency. In any case where such separate reviews are conducted, the Inspectors General shall make separate determinations under paragraph (1) or (2) of subsection (a), as applicable, with respect to each such separate review.

"(d) Limitations on Procurements on Behalf of Department of Defense.—

"(1) Limitation during review period.—After March 15, 2007, and before June 16, 2008, no official of the Department of Defense may, except as provided in subsection (e) or (f), order, purchase, or otherwise procure property or services in an amount in excess of $100,000 through a covered non-defense agency for which a determination described in clause (iii) or (iv) of paragraph (1)(B) of subsection (a) has been made under subsection (a).

"(2) Limitation after review period.—After June 15, 2008, no official of the Department of Defense may, except as provided in subsection (e) or (f), order, purchase, or otherwise procure property or services in an amount in excess of $100,000 through a covered non-defense agency that, having been subject to review under this section, has not been determined under this section as being compliant with defense procurement requirements.

"(3) Limitation following failure to reach mou.—Commencing on the date that is 60 days after the date of the enactment of this Act [Oct. 17, 2006], if a memorandum of understanding between the Inspector General of the Department of Defense and the Inspector General of a covered non-defense agency cannot be attained causing the review required by this section to not be performed, no official of the Department of Defense, except as provided in subsection (e) or (f), may order, purchase or otherwise procure property or services in an amount in excess of $100,000 through such non-defense agency.

"(e) Exception From Applicability of Limitations.—

"(1) Exception.—No limitation applies under subsection (d) with respect to the procurement of property and services on behalf of the Department of Defense by a covered non-defense agency during any period that there is in effect a determination of the Under Secretary of Defense for Acquisition and Sustainment, made in writing, that it is necessary in the interest of the Department of Defense to continue to procure property and services through such non-defense agency.

"(2) Applicability of determination.—A written determination with respect to a covered non-defense agency under paragraph (1) is in effect for the period, not in excess of one year, that the Under Secretary shall specify in the written determination. The Under Secretary may extend from time to time, for up to one year at a time, the period for which the written determination remains in effect.

"(f) Termination of Applicability of Limitations.—Subsection (d) shall cease to apply to a covered non-defense agency on the date on which the Inspector General of the Department of Defense and the Inspector General of such non-defense agency jointly—

"(1) determine that such non-defense agency is compliant with defense procurement requirements; and

"(2) notify the Secretary of Defense of that determination.

"(g) Identification of Procurements Made During a Particular Fiscal Year.—For the purposes of subsection (a), a procurement shall be treated as being made during a particular fiscal year to the extent that funds are obligated by the Department of Defense for that procurement in that fiscal year.

"(h) Resolution of Disagreements.—If the Inspector General of the Department of Defense and the Inspector General of a covered non-defense agency are unable to agree on a joint determination under subsection (a) or (f), a determination by the Inspector General of the Department of Defense under such subsection shall be conclusive for the purposes of this section.

"(i) Definitions.—In this section:

"(1) The term 'covered non-defense agency' means each of the following:

"(A) The Department of Veterans Affairs.

"(B) The National Institutes of Health.

"(2) The term 'governmentwide acquisition contract', with respect to a covered non-defense agency, means a task or delivery order contract that—

"(A) is entered into by the non-defense agency; and

"(B) may be used as the contract under which property or services are procured for one or more other departments or agencies of the Federal Government."

Pub. L. 109–163, div. A, title VIII, §811, Jan. 6, 2006, 119 Stat. 3374, as amended by Pub. L. 116–92, div. A, title IX, §902(44), Dec. 20, 2019, 133 Stat. 1547, provided that:

"(a) Inspector General Reviews and Determinations.—

"(1) In general.—For each covered non-defense agency, the Inspector General of the Department of Defense and the Inspector General of such non-defense agency shall, not later than March 15, 2006, jointly—

"(A) review—

"(i) the procurement policies, procedures, and internal controls of such non-defense agency that are applicable to the procurement of property and services on behalf of the Department by such non-defense agency; and

"(ii) the administration of those policies, procedures, and internal controls; and

"(B) determine in writing whether—

"(i) such non-defense agency is compliant with defense procurement requirements;

"(ii) such non-defense agency is not compliant with defense procurement requirements, but has a program or initiative to significantly improve compliance with defense procurement requirements; or

"(iii) neither of the conclusions stated in clauses (i) and (ii) is correct in the case of such non-defense agency.

"(2) Actions following certain determinations.—If the Inspectors General determine under paragraph (1) that the conclusion stated in clause (ii) or (iii) of subparagraph (B) of that paragraph is correct in the case of a covered non-defense agency, such Inspectors General shall, not later than June 15, 2007, jointly—

"(A) conduct a second review, as described in subparagraph (A) of that paragraph, regarding such non-defense agency's procurement of property or services on behalf of the Department of Defense in fiscal year 2006; and

"(B) determine in writing whether such non-defense agency is or is not compliant with defense procurement requirements.

"(b) Compliance With Defense Procurement Requirements.—For the purposes of this section, a covered non-defense agency is compliant with defense procurement requirements if such non-defense agency's procurement policies, procedures, and internal controls applicable to the procurement of products and services on behalf of the Department of Defense, and the manner in which they are administered, are adequate to ensure such non-defense agency's compliance with the requirements of laws and regulations that apply to procurements of property and services made directly by the Department of Defense.

"(c) Memoranda of Understanding Between Inspectors General.—

"(1) In general.—Not later than 60 days after the date of the enactment of this Act [Jan. 6, 2006], the Inspector General of the Department of Defense and the Inspector General of each covered non-defense agency shall enter into a memorandum of understanding with each other to carry out the reviews and make the determinations required by this section.

"(2) Scope of memoranda.—The Inspector General of the Department of Defense and the Inspector General of a covered non-defense agency may by mutual agreement conduct separate reviews of the procurement of property and services on behalf of the Department of Defense that are conducted by separate business units, or under separate governmentwide acquisition contracts, of such non-defense agency. In any case where such separate reviews are conducted, the Inspectors General shall make separate determinations under paragraph (1) or (2) of subsection (a), as applicable, with respect to each such separate review.

"(d) Limitations on Procurements on Behalf of Department of Defense.—

"(1) Limitation during review period.—After March 15, 2006, and before June 16, 2007, no official of the Department of Defense may, except as provided in subsection (e) or (f), order, purchase, or otherwise procure property or services in an amount in excess of $100,000 through a covered non-defense agency for which a determination described in paragraph (1)(B)(iii) of subsection (a) has been made under that subsection.

"(2) Limitation after review period.—After June 15, 2007, no official of the Department of Defense may, except as provided in subsection (e) or (f), order, purchase, or otherwise procure property or services in an amount in excess of $100,000 through a covered non-defense agency that, having been subject to review under this section, has not been determined under this section as being compliant with defense procurement requirements.

"(3) Limitation following failure to reach mou.—Commencing on the date that is 60 days after the date of the enactment of this Act [Jan. 6, 2006], if a memorandum of understanding between the Inspector General of the Department of Defense and the Inspector General of a covered non-defense agency cannot be attained causing the review required by this section to not be performed, no official of the Department of Defense, except as provided in subsection (e) or (f), may order, purchase or otherwise procure property or services in an amount in excess of $100,000 through such non-defense agency.

"(e) Exception From Applicability of Limitations.—

"(1) Exception.—No limitation applies under subsection (d) with respect to the procurement of property and services on behalf of the Department of Defense by a covered non-defense agency during any period that there is in effect a determination of the Under Secretary of Defense for Acquisition and Sustainment, made in writing, that it is necessary in the interest of the Department of Defense to continue to procure property and services through such non-defense agency.

"(2) Applicability of determination.—A written determination with respect to a covered non-defense agency under paragraph (1) is in effect for the period, not in excess of one year, that the Under Secretary shall specify in the written determination. The Under Secretary may extend from time to time, for up to one year at a time, the period for which the written determination remains in effect.

"(f) Termination of Applicability of Limitations.—Subsection (d) shall cease to apply to a covered non-defense agency on the date on which the Inspector General of the Department of Defense and the Inspector General of such non-defense agency jointly—

"(1) determine that such non-defense agency is compliant with defense procurement requirements; and

"(2) notify the Secretary of Defense of that determination.

"(g) Identification of Procurements Made During a Particular Fiscal Year.—For the purposes of subsection (a), a procurement shall be treated as being made during a particular fiscal year to the extent that funds are obligated by the Department of Defense for that procurement in that fiscal year.

"(h) Definitions.—In this section:

"(1) The term 'covered non-defense agency' means each of the following:

"(A) The Department of the Treasury.

"(B) The Department of the Interior.

"(C) The National Aeronautics and Space Administration.

"(2) The term 'governmentwide acquisition contract', with respect to a covered non-defense agency, means a task or delivery order contract that—

"(A) is entered into by the non-defense agency; and

"(B) may be used as the contract under which property or services are procured for 1 or more other departments or agencies of the Federal Government."

Employment of State Residents in States Having Unemployment Rate in Excess of National Average

Pub. L. 109–289, div. A, title VIII, §8048, Sept. 29, 2006, 120 Stat. 1284, provided that: "Notwithstanding any other provision of law, each contract awarded by the Department of Defense during the current fiscal year and hereafter for construction or service performed in whole or in part in a State (as defined in section 381(d) [now 281(d)] of title 10, United States Code) which is not contiguous with another State and has an unemployment rate in excess of the national average rate of unemployment as determined by the Secretary of Labor, shall include a provision requiring the contractor to employ, for the purpose of performing that portion of the contract in such State that is not contiguous with another State, individuals who are residents of such State and who, in the case of any craft or trade, possess or would be able to acquire promptly the necessary skills: Provided, That the Secretary of Defense may waive the requirements of this section, on a case-by-case basis, in the interest of national security."

Rapid Acquisition and Deployment Procedures

Pub. L. 107–314, div. A, title VIII, §806, Dec. 2, 2002, 116 Stat. 2607, as amended by Pub. L. 108–136, div. A, title VIII, §845, Nov. 24, 2003, 117 Stat. 1553; Pub. L. 108–375, div. A, title VIII, §811, Oct. 28, 2004, 118 Stat. 2012; Pub. L. 109–364, div. A, title X, §1071(h), Oct. 17, 2006, 120 Stat. 2403; Pub. L. 111–383, div. A, title VIII, §803, Jan. 7, 2011, 124 Stat. 4255; Pub. L. 112–81, div. A, title VIII, §845(a), (b), Dec. 31, 2011, 125 Stat. 1515; Pub. L. 114–92, div. A, title VIII, §803, Nov. 25, 2015, 129 Stat. 880; Pub. L. 114–328, div. A, title VIII, §801, Dec. 23, 2016, 130 Stat. 2247, which required prescription of procedures for the rapid acquisition and deployment of certain supplies and associated support services, was repealed by Pub. L. 117–263, div. A, title VIII, §804(c)(2), Dec. 23, 2022, 136 Stat. 2701. See section 3601 of this title.

Requirements Relating to Micro-Purchases

Pub. L. 105–85, div. A, title VIII, §848, Nov. 18, 1997, 111 Stat. 1846, as amended by Pub. L. 113–291, div. A, title X, §1071(b)(10), Dec. 19, 2014, 128 Stat. 3507, provided that:

"(a) Requirement.—(1) Not later than October 1, 1998, at least 60 percent of all eligible purchases made by the Department of Defense for an amount less than the micro-purchase threshold shall be made through streamlined micro-purchase procedures.

"(2) Not later than October 1, 2000, at least 90 percent of all eligible purchases made by the Department of Defense for an amount less than the micro-purchase threshold shall be made through streamlined micro-purchase procedures.

"(b) Eligible Purchases.—The Secretary of Defense shall establish which purchases are eligible for purposes of subsection (a). In establishing which purchases are eligible, the Secretary may exclude those categories of purchases determined not to be appropriate or practicable for streamlined micro-purchase procedures.

"(c) Plan.—Not later than March 1, 1998, the Secretary of Defense shall provide to the Committee on Armed Services of the Senate and the Committee on National Security of the House of Representatives a plan to implement this section.

"(d) Report.—Not later than March 1 in each of the years 1999, 2000, and 2001, the Secretary of Defense shall submit to the congressional defense committees [Committees on Armed Services and Appropriations of Senate and House of Representatives] a report on the implementation of this section. Each report shall include—

"(A) the total dollar amount of all Department of Defense purchases for an amount less than the micro-purchase threshold in the fiscal year preceding the year in which the report is submitted;

"(B) the total dollar amount of such purchases that were considered to be eligible purchases;

"(C) the total amount of such eligible purchases that were made through a streamlined micro-purchase method; and

"(D) a description of the categories of purchases excluded from the definition of eligible purchases established under subsection (b).

"(e) Definitions.—In this section:

"(1) The term 'micro-purchase threshold' has the meaning provided in section 1902 of title 41, United States Code.

"(2) The term 'streamlined micro-purchase procedures' means procedures providing for the use of the Government-wide commercial purchase card or any other method for carrying out micro-purchases that the Secretary of Defense prescribes in the regulations implementing this subsection."

Defense Facility-Wide Pilot Program

Pub. L. 104–106, div. A, title VIII, §822, Feb. 10, 1996, 110 Stat. 396, as amended by Pub. L. 106–65, div. A, title X, §1067(6), Oct. 5, 1999, 113 Stat. 774, provided that:

"(a) Authority To Conduct Defense Facility-Wide Pilot Program.—The Secretary of Defense may conduct a pilot program, to be known as the 'defense facility-wide pilot program', for the purpose of determining the potential for increasing the efficiency and effectiveness of the acquisition process in facilities by using commercial practices on a facility-wide basis.

"(b) Designation of Participating Facilities.—(1) Subject to paragraph (2), the Secretary may designate up to two facilities as participants in the defense facility-wide pilot program.

"(2) The Secretary may designate for participation in the pilot program only those facilities that are authorized to be so designated in a law authorizing appropriations for national defense programs that is enacted after the date of the enactment of this Act [Feb. 10, 1996].

"(c) Scope of Program.—At a facility designated as a participant in the pilot program, the pilot program shall consist of the following:

"(1) All contracts and subcontracts for defense supplies and services that are performed at the facility.

"(2) All Department of Defense contracts and all subcontracts under Department of Defense contracts performed elsewhere that the Secretary determines are directly and substantially related to the production of defense supplies and services at the facility and are necessary for the pilot program.

"(d) Criteria for Designation of Participating Facilities.—The Secretary shall establish criteria for selecting a facility for designation as a participant in the pilot program. In developing such criteria, the Secretary shall consider the following:

"(1) The number of existing and anticipated contracts and subcontracts performed at the facility—

"(A) for which contractors are required to provide certified cost or pricing data pursuant to [former] section 2306a of title 10, United States Code [see 10 U.S.C. 3701 et seq.]; and

"(B) which are administered with the application of cost accounting standards under section 26(f) of the Office of Federal Procurement Policy Act ([former] 41 U.S.C. 422(f)) [now 41 U.S.C. 1502(a), (b)].

"(2) The relationship of the facility to other organizations and facilities performing under contracts with the Department of Defense and subcontracts under such contracts.

"(3) The impact that the participation of the facility under the pilot program would have on competing domestic manufacturers.

"(4) Such other factors as the Secretary considers appropriate.

"(e) Notification.—(1) The Secretary shall transmit to the Committee on Armed Services of the Senate and the Committee on Armed Services of the House of Representatives a written notification of each facility proposed to be designated by the Secretary for participation in the pilot program.

"(2) The Secretary shall include in the notification regarding a facility designated for participation in the program a management plan addressing the following:

"(A) The proposed treatment of research and development contracts or subcontracts to be performed at the facility during the pilot program.

"(B) The proposed treatment of the cost impact of the use of commercial practices on the award and administration of contracts and subcontracts performed at the facility.

"(C) The proposed method for reimbursing the contractor for existing and new contracts.

"(D) The proposed method for measuring the performance of the facility for meeting the management goals of the Secretary.

"(E) Estimates of the annual amount and the total amount of the contracts and subcontracts covered under the pilot program.

"(3)(A) The Secretary shall ensure that the management plan for a facility provides for attainment of the following objectives:

"(i) A significant reduction of the cost to the Government for programs carried out at the facility.

"(ii) A reduction of the schedule associated with programs carried out at the facility.

"(iii) An increased use of commercial practices and procedures for programs carried out at the facility.

"(iv) Protection of a domestic manufacturer competing for contracts at such facility from being placed at a significant competitive disadvantage by the participation of the facility in the pilot program.

"(B) The management plan for a facility shall also require that all or substantially all of the contracts to be awarded and performed at the facility after the designation of that facility under subsection (b), and all or substantially all of the subcontracts to be awarded under those contracts and performed at the facility after the designation, be—

"(i) for the production of supplies or services on a firm-fixed price basis;

"(ii) awarded without requiring the contractors or subcontractors to provide certified cost or pricing data pursuant to [former] section 2306a of title 10, United States Code [see 10 U.S.C. 3701 et seq.]; and

"(iii) awarded and administered without the application of cost accounting standards under section 26(f) of the Office of Federal Procurement Policy Act ([former] 41 U.S.C. 422(f)) [now 41 U.S.C. 1502(a), (b)].

"(f) Exemption From Certain Requirements.—In the case of a contract or subcontract that is to be performed at a facility designated for participation in the defense facility-wide pilot program and that is subject to [former] section 2306a of title 10, United States Code [see 10 U.S.C. 3701 et seq.], or section 26(f) of the Office of Federal Procurement Policy Act ([former] 41 U.S.C. 422(f)) [now 41 U.S.C. 1502(a), (b)], the Secretary of Defense may exempt such contract or subcontract from the requirement to obtain certified cost or pricing data under such [former] section 2306a [see 10 U.S.C. 3701 et seq.] or the requirement to apply mandatory cost accounting standards under such section 26(f) [now 41 U.S.C. 1502(a), (b)] if the Secretary determines that the contract or subcontract—

"(1) is within the scope of the pilot program (as described in subsection (c)); and

"(2) is fairly and reasonably priced based on information other than certified cost and pricing data.

"(g) Special Authority.—The authority provided under subsection (a) includes authority for the Secretary of Defense—

"(1) to apply any amendment or repeal of a provision of law made in this Act [see Tables for classification] to the pilot program before the effective date of such amendment or repeal; and

"(2) to apply to a procurement of items other than commercial items under such program—

"(A) the authority provided in section 34 of the Office of Federal Procurement Policy Act ([former] 41 U.S.C. 430) [now 41 U.S.C. 1906] to waive a provision of law in the case of commercial items, and

"(B) any exception applicable under this Act or the Federal Acquisition Streamlining Act of 1994 (Public Law 103–355) [see Tables for classification] (or an amendment made by a provision of either Act) in the case of commercial items,

before the effective date of such provision (or amendment) to the extent that the Secretary determines necessary to test the application of such waiver or exception to procurements of items other than commercial items.

"(h) Applicability.—(1) Subsections (f) and (g) apply to the following contracts, if such contracts are within the scope of the pilot program at a facility designated for the pilot program under subsection (b):

"(A) A contract that is awarded or modified during the period described in paragraph (2).

"(B) A contract that is awarded before the beginning of such period, that is to be performed (or may be performed), in whole or in part, during such period, and that may be modified as appropriate at no cost to the Government.

"(2) The period referred to in paragraph (1), with respect to a facility designated under subsection (b), is the period that—

"(A) begins 45 days after the date of the enactment of the Act authorizing the designation of that facility in accordance with paragraph (2) of such subsection; and

"(B) ends on September 30, 2000.

"(i) Commercial Practices Encouraged.—With respect to contracts and subcontracts within the scope of the defense facility-wide pilot program, the Secretary of Defense may, to the extent the Secretary determines appropriate and in accordance with applicable law, adopt commercial practices in the administration of contracts and subcontracts. Such commercial practices may include the following:

"(1) Substitution of commercial oversight and inspection procedures for Government audit and access to records.

"(2) Incorporation of commercial oversight, inspection, and acceptance procedures.

"(3) Use of alternative dispute resolution techniques (including arbitration).

"(4) Elimination of contract provisions authorizing the Government to make unilateral changes to contracts."

Elimination of Use of Class I Ozone-Depleting Substances in Certain Military Procurement Contracts

Pub. L. 102–484, div. A, title III, §326, Oct. 23, 1992, 106 Stat. 2368, as amended by Pub. L. 104–106, div. A, title XV, §§1502(c)(2)(A), 1504(c)(1), Feb. 10, 1996, 110 Stat. 506, 514; Pub. L. 106–65, div. A, title X, §1067(8), Oct. 5, 1999, 113 Stat. 774; Pub. L. 113–291, div. A, title X, §1071(b)(14), Dec. 19, 2014, 128 Stat. 3508, provided that:

"(a) Elimination of Use of Class I Ozone-Depleting Substances.—(1) No Department of Defense contract awarded after June 1, 1993, may include a specification or standard that requires the use of a class I ozone-depleting substance or that can be met only through the use of such a substance unless the inclusion of the specification or standard in the contract is approved by the senior acquisition official for the procurement covered by the contract. The senior acquisition official may grant the approval only if the senior acquisition official determines (based upon the certification of an appropriate technical representative of the official) that a suitable substitute for the class I ozone-depleting substance is not currently available.

"(2)(A)(i) Not later than 60 days after the completion of the first modification, amendment, or extension after June 1, 1993, of a contract referred to in clause (ii), the senior acquisition official (or the designee of that official) shall carry out an evaluation of the contract in order to determine—

"(I) whether the contract includes a specification or standard that requires the use of a class I ozone-depleting substance or can be met only through the use of such a substance; and

"(II) in the event of a determination that the contract includes such a specification or standard, whether the contract can be carried out through the use of an economically feasible substitute for the ozone-depleting substance or through the use of an economically feasible alternative technology for a technology involving the use of the ozone-depleting substance.

"(ii) A contract referred to in clause (i) is any contract in an amount in excess of $10,000,000 that—

"(I) was awarded before June 1, 1993; and

"(II) as a result of the modification, amendment, or extension described in clause (i), will expire more than 1 year after the effective date of the modification, amendment, or extension.

"(iii) A contract under evaluation under clause (i) may not be further modified, amended, or extended until the evaluation described in that clause is complete.

"(B) If the acquisition official (or designee) determines that an economically feasible substitute substance or alternative technology is available for use in a contract under evaluation, the appropriate contracting officer shall enter into negotiations to modify the contract to require the use of the substitute substance or alternative technology.

"(C) A determination that a substitute substance or technology is not available for use in a contract under evaluation shall be made in writing by the senior acquisition official (or designee).

"(D) The Secretary of Defense may, consistent with the Federal Acquisition Regulation, adjust the price of a contract modified under subparagraph (B) to take into account the use by the contractor of a substitute substance or alternative technology in the modified contract.

"(3) The senior acquisition official authorized to grant an approval under paragraph (1) and the senior acquisition official and designees authorized to carry out an evaluation and make a determination under paragraph (2) shall be determined under regulations prescribed by the Secretary of Defense. A senior acquisition official may not delegate the authority provided in paragraph (1).

"(4) Each official who grants an approval authorized under paragraph (1) or makes a determination under paragraph (2)(B) shall submit to the Secretary of Defense a report on that approval or determination, as the case may be, as follows:

"(A) Beginning on October 1, 1993, and continuing for 8 calendar quarters thereafter, by submitting a report on the approvals granted or determinations made under such authority during the preceding quarter not later than 30 days after the end of such quarter.

"(B) Beginning on January 1, 1997, and continuing for 4 years thereafter, by submitting a report on the approvals granted or determinations made under such authority during the preceding year not later than 30 days after the end of such year.

"(5) The Secretary shall promptly transmit to the Committee on Armed Services of the Senate and the Committee on Armed Services of the House of Representatives each report submitted to the Secretary under paragraph (4). The Secretary shall transmit the report in classified and unclassified forms.

"(b) Cost Recovery.—In any case in which a Department of Defense contract is modified or a specification or standard for such a contract is waived at the request of a contractor in order to permit the contractor to use in the performance of the contract a substitute for a class I ozone-depleting substance or an alternative technology for a technology involving the use of a class I ozone-depleting substance, the Secretary of Defense may adjust the price of the contract in a manner consistent with the Federal Acquisition Regulation.

"(c) Definitions.—In this section:

"(1) The term 'class I ozone-depleting substance' means any substance listed under section 602(a) of the Clean Air Act (42 U.S.C. 7671a(a)).

"(2) The term 'Federal Acquisition Regulation' means the single Government-wide procurement regulation issued under section 1303(a) of title 41, United States Code."

Minimum Percentage of Competitive Procurements

Pub. L. 99–145, title IX, §913, Nov. 8, 1985, 99 Stat. 687, as amended by Pub. L. 101–510, div. A, title XIII, §1322(d)(1), Nov. 5, 1990, 104 Stat. 1672, provided that:

"(a) Annual Goal.—The Secretary of Defense shall establish for each fiscal year a goal for the percentage of defense procurements to be made during that year (expressed in total dollar value of contracts entered into) that are to be competitive procurements.

"(b) Definition.—For the purposes of this section, the term 'competitive procurements' means procurements made by the Department of Defense through the use of competitive procedures, as defined in [former] section 2304 of title 10, United States Code [see 10 U.S.C. 3201 et seq.]."

§3201. Full and open competition

(a) In General.—Except as provided in sections 3203, 3204(a), and 3205 of this title and except in the case of procurement procedures otherwise expressly authorized by statute, the head of an agency in conducting a procurement for property or services—

(1) shall obtain full and open competition through the use of competitive procedures in accordance with the requirements of this section and sections 3069, 3203, 3204, 3205, 3403, 3405, 3406, 3901, 4501, and 4502 of this title and the Federal Acquisition Regulation; and

(2) shall use the competitive procedure or combination of competitive procedures that is best suited under the circumstances of the procurement.

(b) Determination of Appropriate Competitive Procedures.—In determining the competitive procedure appropriate under the circumstances, the head of an agency—

(1) shall solicit sealed bids if—

(A) time permits the solicitation, submission, and evaluation of sealed bids;

(B) the award will be made on the basis of price and other price-related factors;

(C) it is not necessary to conduct discussions with the responding sources about their bids; and

(D) there is a reasonable expectation of receiving more than one sealed bid; and

(2) shall request competitive proposals if sealed bids are not appropriate under paragraph (1).

(c) Efficient Fulfillment of Government Requirements.—The Federal Acquisition Regulation shall ensure that the requirement to obtain full and open competition is implemented in a manner that is consistent with the need to efficiently fulfill the Government's requirements.

(d) Certain Purchases or Contracts to Be Treated as if Made With Sealed-bid Procedures.—For the purposes of the following, purchases or contracts awarded after using procedures other than sealed-bid procedures shall be treated as if they were made with sealed-bid procedures:

(1) Chapter 65 of title 41.

(2) Sections 3141–3144, 3146, and 3147 of title 40.

(e) New Contracts and Merit-based Selection Procedures.—

(1) Congressional policy.—It is the policy of Congress that an agency named in section 3063 of this title should not be required by legislation to award a new contract to a specific non-Federal Government entity. It is further the policy of Congress that any program, project, or technology identified in legislation be procured through merit-based selection procedures.

(2) New contract described.—For purposes of this subsection, a contract is a new contract unless the work provided for in the contract is a continuation of the work performed by the specified entity under a preceding contract.

(3) Provision of law described.—A provision of law may not be construed as requiring a new contract to be awarded to a specified non-Federal Government entity unless that provision of law—

(A) specifically refers to this subsection;

(B) specifically identifies the particular non-Federal Government entity involved; and

(C) specifically states that the award to that entity is required by such provision of law in contravention of the policy set forth in paragraph (1).

(4) Exception.—This subsection shall not apply with respect to any contract that calls upon the National Academy of Sciences to investigate, examine, or experiment upon any subject of science or art of significance to an agency named in section 3063 of this title and to report on such matters to the Congress or any agency of the Federal Government.

(Added and amended Pub. L. 116–283, div. A, title XVIII, §1811(c), Jan. 1, 2021, 134 Stat. 4165; Pub. L. 117–81, div. A, title XVII, §1701(b)(4)(A), Dec. 27, 2021, 135 Stat. 2132.)

Editorial Notes

Codification

The text of subsec. (a) of section 2304 of this title, which was transferred to this section, redesignated as subsecs. (a) and (b), and amended by Pub. L. 116–283, §1811(c)(2), was based on Pub. L. 98–369, div. B, title VII, §2723(a)(1)(C), July 18, 1984, 98 Stat. 1187; Pub. L. 99–145, title XIII, §1303(a)(13), Nov. 8, 1985, 99 Stat. 739; Pub. L. 100–26, §7(d)(3)(A), Apr. 21, 1987, 101 Stat. 281; Pub. L. 103–355, title I, §1001(1), Oct. 13, 1994, 108 Stat. 3249.

The text of subsec. (j) of section 2304 of this title, which was transferred to this section, redesignated as subsec. (c), and amended by Pub. L. 116–283, §1811(c)(3), was based on Pub. L. 104–106, div. D, title XLI, §4101(a)(2), Feb. 10, 1996, 110 Stat. 642.

The text of subsec. (h) of section 2304 of this title, which was transferred to this section, redesignated as subsec. (d), and amended by Pub. L. 116–283, §1811(c)(4), was based on act Aug. 10, 1956, ch. 1041, 70A Stat. 128; Pub. L. 96–513, title V, §511(76), Dec. 12, 1980, 94 Stat. 2926; Pub. L. 97–295, §1(24)(B), Oct. 12, 1982, 96 Stat. 1291; Pub. L. 98–369, div. B, title VII, §§2723(a)(1)(B), 2727(b), July 18, 1984, 98 Stat. 1187, 1194; Pub. L. 98–577, title V, §504(b)(2), Oct. 30, 1984, 98 Stat. 3086; Pub. L. 104–106, div. D, title XLIII, §4321(b)(5), Feb. 10, 1996, 110 Stat. 672; Pub. L. 107–217, §3(b)(3), Aug. 21, 2002, 116 Stat. 1295; Pub. L. 111–350, §5(b)(12)(E), Jan. 4, 2011, 124 Stat. 3843.

The text of subsec. (k) of section 2304 of this title, which was transferred to this section, redesignated as subsec. (e), and amended by Pub. L. 116–283, §1811(c)(5), was based on Pub. L. 103–355, title VII, §7203(a)(1)(B), Oct. 13, 1994, 108 Stat. 3379; Pub. L. 104–106, div. D, title XLI, §4101(a)(1), Feb. 10, 1996, 110 Stat. 642.

Prior Provisions

A prior section 3201 was renumbered section 7101 of this title.

Another prior section 3201, act Aug. 10, 1956, ch. 1041, 70A Stat. 172; Pub. L. 85–861, §1(62), Sept. 2, 1958, 72 Stat. 1462; Pub. L. 88–647, title III, §301(4), Oct. 13, 1964, 78 Stat. 1071, prescribed the authorized strength of the Army in members on active duty, exclusive of certain categories, and the authorized daily average strength of the Army in members on active duty during the fiscal year, exclusive of certain categories, prior to repeal by Pub. L. 96–513, title II, §202, title VII, §701, Dec. 12, 1980, 94 Stat. 2878, 2955, effective Sept. 15, 1981.

A prior section 3202, act Aug. 10, 1956, ch. 1041, 70A Stat. 172; Pub. L. 85–861, §1(63), Sept. 2, 1958, 72 Stat. 1463; Pub. L. 90–228, §1(1), (2), Dec. 28, 1967, 81 Stat. 745; Pub. L. 96–513, title II, §203(a), Dec. 12, 1980, 94 Stat. 2878, related to authorized strength of Army in general officers on active duty, prior to repeal by Pub. L. 101–510, div. A, title IV, §403(b)(1)(A), Nov. 5, 1990, 104 Stat. 1545.

Amendments

2021—Subsec. (a). Pub. L. 116–283, §1811(c)(2)(B), (C), as amended by Pub. L. 117–81, §1701(b)(4)(A)(i), inserted heading, struck out par. (1) designation at beginning and substituted "Except as provided in sections 3203, 3204(a), and 3205 of this title" for "Except as provided in subsections (b), (c), and (g)" in introductory provisions, and redesignated subpars. (A) and (B) as pars. (1) and (2), respectively. Par. (2) subsequently redesignated subsec. (b).

Pub. L. 116–283, §1811(c)(2), transferred subsec. (a) of section 2304 of this title to this section.

Subsec. (a)(1). Pub. L. 116–283, §1811(c)(2)(D), as amended by Pub. L. 117–81, §1701(b)(4)(A)(ii), substituted "this section and sections 3069, 3203, 3204, 3205, 3403, 3405, 3406, 3901, 4501, and 4502 of this title" for "this chapter".

Subsec. (b). Pub. L. 116–283, §1811(c)(2)(A), (E), redesignated subsec. (a)(2) as (b) and inserted heading, redesignated subpar. (A) and cls. (i) to (iv) as par. (1) and subpars. (A) to (D), respectively, and redesignated subpar. (B) as par. (2) and substituted "paragraph (1)" for "clause (A)".

Subsec. (c). Pub. L. 116–283, §1811(c)(3), redesignated subsec. (j) of section 2304 of this title as subsec. (c) of this section and inserted heading.

Subsec. (d). Pub. L. 116–283, §1811(c)(4), redesignated subsec. (h) of section 2304 of this title as subsec. (d) of this section and inserted heading.

Subsec. (e). Pub. L. 116–283, §1811(c)(5), redesignated subsec. (k) of section 2304 of this title as subsec. (e) of this section, inserted subsec. and par. headings, switched order and designations of pars. (2) and (3), realigned margins of pars. (2) to (4), and substituted "section 3063" for "section 2303(a)" in pars. (1) and (4).

Statutory Notes and Related Subsidiaries

Effective Date of 2021 Amendment

Amendment by Pub. L. 117–81 applicable as if included in the enactment of title XVIII of Pub. L. 116–283 as enacted, see section 1701(a)(2) of Pub. L. 117–81, set out in a note preceding section 3001 of this title and Effective Date note below.

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.

Competition for Procurement of Small Arms Supplied to Iraq and Afghanistan

Pub. L. 110–181, div. A, title VIII, §892, Jan. 28, 2008, 122 Stat. 270, which required the Secretary of Defense to ensure, consistent with the provisions of former section 2304 of this title, full and open competition for procurement of small arms supplied to Iraq and Afghanistan, was repealed by Pub. L. 118–159, div. A, title VIII, §811(a)(1)(B), Dec. 23, 2024, 138 Stat. 1979.

Competitive Award of Contracts for Reconstruction Activities in Iraq

Pub. L. 108–136, div. A, title VIII, §805(a), Nov. 24, 2003, 117 Stat. 1542, which required the Department of Defense to fully comply with former chapter 137 of this title for contracts awarded competitively for reconstruction activities of the Iraqi oil industry, was repealed by Pub. L. 118–159, div. A, title VIII, §811(a)(1)(A), Dec. 23, 2024, 138 Stat. 1979.

§3203. Exclusion of particular source or restriction of solicitation to small business concerns

(a) Exclusion of Particular Source.—

(1) Criteria for exclusion.—The head of an agency may provide for the procurement of property or services covered by chapter 137 legacy provisions using competitive procedures but excluding a particular source in order to establish or maintain an alternative source or sources of supply for that property or service if the head of the agency determines that to do so—

(A) would increase or maintain competition and would likely result in reduced overall costs for such procurement, or for any anticipated procurement, of property or services;

(B) would be in the interest of national defense in having a facility (or a producer, manufacturer, or other supplier) available for furnishing the property or service in case of a national emergency or industrial mobilization;

(C) would be in the interest of national defense in establishing or maintaining an essential engineering, research, or development capability to be provided by an educational or other nonprofit institution or a federally funded research and development center;

(D) would ensure the continuous availability of a reliable source of supply of such property or service;

(E) would satisfy projected needs for such property or service determined on the basis of a history of high demand for the property or service; or

(F) in the case of medical supplies, safety supplies, or emergency supplies, would satisfy a critical need for such supplies.

(2) Determination for Class Disallowed.—A determination under paragraph (1) may not be made for a class of purchases or contracts.

(b) Exclusion of Other Than Small Business Concerns.—The head of an agency may provide for the procurement of property or services covered by chapter 137 legacy provisions using competitive procedures, but excluding concerns other than small business concerns in furtherance of sections 9 and 15 of the Small Business Act (15 U.S.C. 638, 644).

(c) Inapplicability of Justification and Approval Requirements.—A contract awarded pursuant to the competitive procedures referred to in subsections (a)(1) and (b) shall not be subject to the justification and approval required by section 3204(e)(1) of this title.

(Added and amended Pub. L. 116–283, div. A, title XVIII, §1811(d)(1), (2), Jan. 1, 2021, 134 Stat. 4166; Pub. L. 117–81, div. A, title XVII, §1701(d)(3), Dec. 27, 2021, 135 Stat. 2136.)

Editorial Notes

Codification

The text of subsec. (b) of section 2304 of this title, which was transferred to this section and amended by Pub. L. 116–283, §1811(d)(2), was based on Pub. L. 98–369, div. B, title VII, §2723(a)(1)(C), July 18, 1984, 98 Stat. 1187; Pub. L. 98–577, title V, §504(b)(1), Oct. 30, 1984, 98 Stat. 3086; Pub. L. 99–661, div. A, title XIII, §1343(a)(14), Nov. 14, 1986, 100 Stat. 3993; Pub. L. 101–189, div. A, title VIII, 853(d), Nov. 29, 1989, 103 Stat. 1519; Pub. L. 102–484, div. A, title VIII, §801(h)(2), Oct. 23, 1992, 106 Stat. 2445; Pub. L. 103–355, title I, §1002, Oct. 13, 1994, 108 Stat. 3249; Pub. L. 115–232, div. A, title VIII, §812(a)(2)(C)(v), Aug. 13, 2018, 132 Stat. 1847.

Prior Provisions

A prior section 3203, act Aug. 10, 1956, ch. 1041, 70A Stat. 173; Pub. L. 85–861, §1(64), Sept. 2, 1958, 72 Stat. 1463, prescribed authorized strength of Regular Army in members on active duty, exclusive of officers candidates, prior to repeal by Pub. L. 96–513, title II, §202, title VII, §701, Dec. 12, 1980, 94 Stat. 2878, 2955, effective Sept. 15, 1981.

Amendments

2021—Subsec. (a). Pub. L. 116–283, §1811(d)(2)(A), redesignated subsec. (b) of section 2304 of this title as subsec. (a) of this section and inserted heading.

Subsec. (a)(1). Pub. L. 116–283, §1811(d)(2)(A)–(C), inserted heading, substituted "covered by chapter 137 legacy provisions" for "covered by this chapter" in introductory provisions, and realigned margins of subpars. (A) to (F).

Subsec. (a)(2). Pub. L. 116–283, §1811(d)(2)(F), redesignated par. (4) as (2), inserted heading, and realigned margin. Former pars. (2) and (3) redesignated subsecs. (b) and (c), respectively.

Subsec. (b). Pub. L. 116–283, §1811(d)(2)(D), redesignated subsec. (a)(2) as (b), inserted heading, and substituted "chapter 137 legacy provisions" for "this section".

Subsec. (c). Pub. L. 117–81 substituted "subsections (a)(1) and (b)" for "paragraphs (1) and (2)".

Pub. L. 116–283, §1811(d)(2)(E), redesignated subsec. (a)(3) as (c), inserted heading, and substituted "section 3204(e)(1) of this title" for "subsection (f)(1)".

Statutory Notes and Related Subsidiaries

Effective Date of 2021 Amendment

Amendment by Pub. L. 117–81 to take effect immediately after the amendments made by title XVIII of Pub. L. 116–283 have taken effect, see section 1701(a)(3) of Pub. L. 117–81, set out in a note preceding section 3001 of this title and Effective Date note below.

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.

§3204. Use of procedures other than competitive procedures

(a) When Procedures Other Than Competitive Procedures May Be Used.—The head of an agency may use procedures other than competitive procedures only when—

(1) the property or services needed by the agency are available from only one responsible source or only from a limited number of responsible sources and no other type of property or services will satisfy the needs of the agency;

(2) the agency's need for the property or services is of such an unusual and compelling urgency that the United States would be seriously injured unless the agency is permitted to limit the number of sources from which it solicits bids or proposals;

(3) it is necessary to award the contract to a particular source or sources in order—

(A) to maintain a facility, producer, manufacturer, or other supplier available for furnishing property or services in case of a national emergency or to achieve industrial mobilization;

(B) to establish or maintain an essential engineering, research, or development capability to be provided by an educational or other nonprofit institution or a federally funded research and development center; or

(C) to procure the services of an expert for use, in any litigation or dispute (including any reasonably foreseeable litigation or dispute) involving the Federal Government, in any trial, hearing, or proceeding before any court, administrative tribunal, or agency, or to procure the services of an expert or neutral for use in any part of an alternative dispute resolution or negotiated rulemaking process, whether or not the expert is expected to testify;

(4) the terms of an international agreement or a treaty between the United States and a foreign government or international organization, or the written directions of a foreign government reimbursing the agency for the cost of the procurement of the property or services for such government, have the effect of requiring the use of procedures other than competitive procedures;

(5) subject to section 3201(e) of this title, a statute expressly authorizes or requires that the procurement be made through another agency or from a specified source, or the agency's need is for a brand-name commercial product for authorized resale;

(6) the disclosure of the agency's needs would compromise the national security unless the agency is permitted to limit the number of sources from which it solicits bids or proposals; or

(7) the head of the agency (who may not delegate the authority under this paragraph)—

(A) determines that it is necessary in the public interest to use procedures other than competitive procedures in the particular procurement concerned, and

(B) notifies the Congress in writing of such determination not less than 30 days before the award of the contract.

(b) Property or Services Considered to Be Available From Only One Source.—For the purposes of applying subsection (a)(1)—

(A) in the case of a contract for property or services to be awarded on the basis of acceptance of an unsolicited research proposal, the property or services shall be considered to be available from only one source if the source has submitted an unsolicited research proposal that demonstrates a concept—

(i) that is unique and innovative or, in the case of a service, for which the source demonstrates a unique capability of the source to provide the service; and

(ii) the substance of which is not otherwise available to the United States, and does not resemble the substance of a pending competitive procurement; and

(B) in the case of a follow-on contract for the continued development or production of a major system or highly specialized equipment, or the continued provision of highly specialized services, such property or services may be deemed to be available only from the original source and may be procured through procedures other than competitive procedures when it is likely that award to a source other than the original source would result in—

(i) substantial duplication of cost to the United States which is not expected to be recovered through competition; or

(ii) unacceptable delays in fulfilling the agency's needs.

(c) Property or Services Needed With Unusual and Compelling Urgency.—

(1) Allowable contract period.—The contract period of a contract described in paragraph (2) that is entered into by an agency pursuant to the authority provided under subsection (a)(2)—

(A) may not exceed the time necessary—

(i) to meet the unusual and compelling requirements of the work to be performed under the contract; and

(ii) for the agency to enter into another contract for the required goods or services through the use of competitive procedures; and

(B) may not exceed one year unless the head of the agency entering into such contract determines that exceptional circumstances apply.

(2) Applicability of allowable contract period.—This subsection applies to any contract in an amount greater than the simplified acquisition threshold.

(d) Offer Requests to Potential Sources.—The head of an agency using procedures other than competitive procedures to procure property or services by reason of the application of paragraph (2) or (6) of subsection (a) shall request offers from as many potential sources as is practicable under the circumstances.

(e) Justification for Use of Procedures Other Than Competitive Procedures.—

(1) Prerequisites for awarding contract.—Except as provided in paragraphs (3), (4), and (7), the head of an agency may not award a contract using procedures other than competitive procedures unless—

(A) the contracting officer for the contract justifies the use of such procedures in writing and certifies the accuracy and completeness of the justification;

(B) the justification is approved—

(i) in the case of a contract for an amount exceeding $500,000 (but equal to or less than $10,000,000), by the competition advocate for the procuring activity (without further delegation) or by an official referred to in clause (ii) or (iii);

(ii) in the case of a contract for an amount exceeding $10,000,000 (but equal to or less than $75,000,000), by the head of the procuring activity (or the head of the procuring activity's delegate designated pursuant to paragraph (5)(A)); or

(iii) in the case of a contract for an amount exceeding $75,000,000, by the senior procurement executive of the agency designated pursuant to section 1702(c) of title 41 (without further delegation) or in the case of the Under Secretary of Defense for Acquisition and Sustainment, acting in his capacity as the senior procurement executive for the Department of Defense, the Under Secretary's delegate designated pursuant to paragraph (5)(B); and

(C) any required notice has been published with respect to such contract pursuant to section 1708 of title 41 and all bids or proposals received in response to that notice have been considered by the head of the agency.

(2) Elements of justification.—The justification required by paragraph (1)(A) shall include—

(A) a description of the agency's needs;

(B) an identification of the statutory exception from the requirement to use competitive procedures and a demonstration, based on the proposed contractor's qualifications or the nature of the procurement, of the reasons for using that exception;

(C) a determination that the anticipated cost will be fair and reasonable;

(D) a description of the market survey conducted or a statement of the reasons a market survey was not conducted;

(E) a listing of the sources, if any, that expressed in writing an interest in the procurement; and

(F) a statement of the actions, if any, the agency may take to remove or overcome any barrier to competition before a subsequent procurement for such needs.

(3) Justification and approval allowed after contract awarded.—In the case of a procurement permitted by subsection (a)(2), the justification and approval required by paragraph (1) may be made after the contract is awarded.

(4) Justification and approval not required.—The justification and approval required by paragraph (1) is not required—

(A) when a statute expressly requires that the procurement be made from a specified source;

(B) when the agency's need is for a brand-name commercial product for authorized resale;

(C) in the case of a procurement permitted by subsection (a)(7);

(D) in the case of a procurement conducted under (i) chapter 85 of title 41, or (ii) section 8(a) of the Small Business Act (15 U.S.C. 637(a)); or

(E) in the case of a procurement permitted by subsection (a)(4), but only if the head of the contracting activity prepares a document in connection with such procurement that describes the terms of an agreement or treaty, or the written directions, referred to in that subsection that have the effect of requiring the use of procedures other than competitive procedures.

(5) Restrictions on Agencies.—

(A) In no case may the head of an agency—

(i) enter into a contract for property or services using procedures other than competitive procedures on the basis of the lack of advance planning or concerns related to the amount of funds available to the agency for procurement functions; or

(ii) procure property or services from another agency unless such other agency complies fully with the requirements of chapter 137 legacy provisions in its procurement of such property or services.

(B) The restriction contained in subparagraph (A)(ii) is in addition to, and not in lieu of, any other restriction provided by law.

(6) Limitation on Delegations of Authority Under Paragraph (1)(B).—(A) The authority of the head of a procuring activity under paragraph (1)(B)(ii) may be delegated only to an officer or employee who—

(i) if a member of the armed forces, is a general or flag officer; or

(ii) if a civilian, is serving in a position with a grade under the General Schedule (or any other schedule for civilian officers or employees) that is comparable to or higher than the grade of brigadier general or rear admiral (lower half).

(B) The authority of the Under Secretary of Defense for Acquisition and Sustainment under paragraph (1)(B)(iii) may be delegated only to—

(i) an Assistant Secretary of Defense; or

(ii) with respect to the element of the Department of Defense (as specified in section 111(b) of this title), other than a military department, carrying out the procurement action concerned, an officer or employee serving in or assigned or detailed to that element who—

(I) if a member of the armed forces, is serving in a grade above brigadier general or rear admiral (lower half); or

(II) if a civilian, is serving in a position with a grade under the General Schedule (or any other schedule for civilian officers or employees) that is comparable to or higher than the grade of major general or rear admiral.

(7) Justification and approval not required for phase iii sbir award.—The justification and approval required by paragraph (1) is not required in the case of a Phase III award made pursuant to section 9(r)(4) of the Small Business Act (15 U.S.C. 638(r)(4)).

(f) Public Availability of Justification and Approval Required for Using Procedures Other Than Competitive Procedures.—

(1) Time requirement.—

(A) Within 14 days after contract award.—Except as provided in subparagraph (B), in the case of a procurement permitted by subsection (a), the head of an agency shall make publicly available, within 14 days after the award of the contract, the documents containing the justification and approval required by subsection (e)(1) with respect to the procurement.

(B) Within 30 days after contract award.—In the case of a procurement permitted by subsection (a)(2), subparagraph (A) shall be applied by substituting "30 days" for "14 days".

(2) Availability on websites.—The documents shall be made available on the website of the agency and through a government-wide website selected by the Administrator for Federal Procurement Policy.

(3) Exception.—This subsection does not require the public availability of information that is exempt from public disclosure under section 552(b) of title 5.

(g) Regulations With Respect to Negotiation of Prices.—

(1) The Secretary of Defense shall prescribe by regulation the manner in which the Department of Defense negotiates prices for supplies to be obtained through the use of procedures other than competitive procedures.

(2) The regulations required by paragraph (1) shall—

(A) specify the incurred overhead a contractor may appropriately allocate to supplies referred to in that paragraph; and

(B) require the contractor to identify those supplies which it did not manufacture or to which it did not contribute significant value.

(3) Such regulations shall not apply to an item of supply included in a contract or subcontract for which the price is based on established catalog or market prices of commercial products sold in substantial quantities to the general public.

(Added and amended Pub. L. 116–283, div. A, title XVIII, §1811(d)(1), (3)–(8), Jan. 1, 2021, 134 Stat. 4166–4169; Pub. L. 117–81, div. A, title XVII, §1701(b)(4)(B)–(E), Dec. 27, 2021, 135 Stat. 2132.)

Editorial Notes

Codification

The text of subsec. (c) of section 2304 of this title, which was transferred to this section, redesignated as subsec. (a), and amended by Pub. L. 116–283, §1811(d)(3), was based on Pub. L. 98–369, div. B, title VII, §2723(a)(1)(C), July 18, 1984, 98 Stat. 1187; Pub. L. 99–500, §101(c) [title X, §923(a)], Oct. 18, 1986, 100 Stat. 1783–82, 1783-152, and Pub. L. 99–591, §101(c) [title X, §923(a)], Oct. 30, 1986, 100 Stat. 3341–82, 3341-152; Pub. L. 99–661, div. A, title IX, formerly title IV, §923(a), Nov. 14, 1986, 100 Stat. 3932, renumbered title IX, Pub. L. 100–26, §3(5), Apr. 21, 1987, 101 Stat. 273; Pub. L. 103–355, title I, §1005, title VII, §7203(a)(1)(A), Oct. 13, 1994, 108 Stat. 3254, 3379; Pub. L. 104–320, §§7(a)(1), 11(c)(1), Oct. 19, 1996, 110 Stat. 3871, 3873; Pub. L. 105–85, div. A, title X, §1073(a)(42), Nov. 18, 1997, 111 Stat. 1902; Pub. L. 115–232, div. A, title VIII, 836(c)(2)(A), Aug. 13, 2018, 132 Stat. 1864.

The text of subsec. (d) of section 2304 of this title, which was transferred to this section, redesignated as subsecs. (b) and (c), and amended by Pub. L. 116–283, §1811(d)(4), was based on Pub. L. 98–369, div. B, title VII, §2723(a)(1)(C), July 18, 1984, 98 Stat. 1187; Pub. L. 99–500, §101(c) [title X, §923(b), (c)], Oct. 18, 1986, 100 Stat. 1783–82, 1783-152, and Pub. L. 99–591, §101(c) [title X, §923(b), (c)], Oct. 30, 1986, 100 Stat. 3341–82, 3341-152,Pub. L. 99–661, div. A, title IX, formerly title IV, §923(b), (c), Nov. 14, 1986, 100 Stat. 3932, renumbered title IX, Pub. L. 100–26, §3(5), Apr. 21, 1987, 101 Stat. 273; Pub. L. 110–417, [div. A], title VIII, §862(b), Oct. 14, 2008, 122 Stat. 4546.

The text of subsec. (e) of section 2304 of this title, which was transferred to this section, redesignated as subsec. (d), and amended by Pub. L. 116–283, §1811(d)(5), was based on Pub. L. 98–369, div. B, title VII, §2723(a)(1)(C), July 18, 1984, 98 Stat. 1187.

The text of subsec. (f) of section 2304 of this title, which was transferred to this section, redesignated as subsec. (e), and amended by Pub. L. 116–283, §1811(d)(6), was based on Pub. L. 98–369, div. B, title VII, §2723(a)(1)(C), July 18, 1984, 98 Stat. 1187; Pub. L. 98–577, title V, §504(b)(2), Oct. 30, 1984, 98 Stat. 3086; Pub. L. 99–145, title IX, §961(a)(1), Nov. 8, 1985, 99 Stat. 703; Pub. L. 100–26, §7(d)(3)(A), Apr. 21, 1987, 101 Stat. 281; Pub. L. 100–456, div. A, title VIII, §803, Sept. 29, 1988, 102 Stat. 2008; Pub. L. 101–189, div. A, title VIII, §§817, 818, Nov. 29, 1989, 103 Stat. 1501, 1502; Pub. L. 103–160, div. A, title IX, §904(d)(1), Nov. 30, 1993, 107 Stat. 1728; Pub. L. 103–355, title I, §1003, Oct. 13, 1994, 108 Stat. 3249; Pub. L. 104–106, div. D, title XLI, §§4102(a), title XLIII, §4321(b)(4), Feb. 10, 1996, 110 Stat. 643, 672; Pub. L. 105–85, div. A, title VIII, §841(b), title X, §1073(a)(43), Nov. 18, 1997, 111 Stat. 1843, 1902; Pub. L. 107–107, div. A, title X, §1048(b)(2), Dec. 28, 2001, 115 Stat. 1225; Pub. L. 108–375, div. A, title VIII, §815, Oct. 28, 2004, 118 Stat. 2015; Pub. L. 109–364, div. A, title X, §1071(a)(2), Oct. 17, 2006, 120 Stat. 2398; Pub. L. 110–181, div. A, title VIII, §844(b)(2), Jan. 28, 2008, 122 Stat. 239; Pub. L. 111–350, §5(b)(12)(A)–(C), Jan. 4, 2011, 124 Stat. 3843; Pub. L. 115–91, div. A, title XVII, §1709(b)(2), Dec. 12, 2017, 131 Stat. 1809; Pub. L. 115–232, div. A, title VIII, §836(c)(2)(A), Aug. 13, 2018, 132 Stat. 1864; Pub. L. 116–92, div. A, title IX, §902(39), title XVII, §1731(a)(37), Dec. 20, 2019, 133 Stat. 1547, 1814.

The text of subsec. (l) of section 2304 of this title, which was transferred to this section, redesignated as subsec. (f), and amended by Pub. L. 116–283, §1811(d)(7), was based on Pub. L. 110–181, div. A, title VIII, §844(b)(1), Jan. 28, 2008, 122 Stat. 239.

The text of subsec. (i) of section 2304 of this title, which was transferred to this section, redesignated as subsec. (g), and amended by Pub. L. 116–283, §1811(d)(8), was based on Pub. L. 99–500, §101(c) [title X, §927(a)], Oct. 18, 1986, 100 Stat. 1783–82, 1783-155, and Pub. L. 99–591, §101(c) [title X, §927(a)], Oct. 30, 1986, 100 Stat. 3341–82, 3341-155; Pub. L. 99–661, div. A, title IX, formerly title IV, §927(a), Nov. 14, 1986, 100 Stat. 3935, renumbered title IX, Pub. L. 100–26, §3(5), Apr. 21, 1987, 101 Stat. 273; Pub. L. 115–232, div. A, title VIII, §836(c)(2)(C), Aug. 13, 2018, 132 Stat. 1864.

Prior Provisions

A prior section 3204, act Aug. 10, 1956, ch. 1041, 70A Stat. 173, Pub. L. 85–600, §1(2), Aug. 6, 1958, 72 Stat. 522; Pub. L. 95–551, §2, Oct. 30, 1978, 92 Stat. 2069, prescribed authorized strength of Regular Army in commissioned officers of active list, prior to repeal by Pub. L. 96–513, title II, §202, title VII, §701, Dec. 12, 1980, 94 Stat. 2878, 2955, effective Sept. 15, 1981.

Amendments

2021—Subsec. (a). Pub. L. 116–283, §1811(d)(3)(A), inserted heading.

Pub. L. 116–283, §1811(d)(3), redesignated subsec. (c) of section 2304 of this title as subsec. (a) of this section.

Subsec. (a)(3). Pub. L. 116–283, §1811(d)(3)(B), as amended by Pub. L. 117–81, §1701(b)(4)(B), inserted dash after "in order" and reformatted subpars. (A) to (C) to add line breaks before each subpar. designation and substituted semicolons for commas.

Subsec. (a)(5). Pub. L. 116–283, §1811(d)(3)(C), substituted "section 3201(e) of this title" for "subsection (k)".

Subsec. (a)(7). Pub. L. 116–283, §1811(d)(3)(D), inserted "(who may not delegate the authority under this paragraph)" after "the head of the agency" in introductory provisions.

Subsec. (b). Pub. L. 116–283, §1811(d)(4)(A), (B), inserted heading, struck out par. (1) designation at beginning, and substituted "subsection (a)(1)" for "subsection (c)(1)" in introductory provisions.

Pub. L. 116–283, §1811(d)(4), redesignated subsec. (d) of section 2304 of this title as subsec. (b) of this section.

Subsec. (b)(2). Pub. L. 116–283, §1811(d)(4)(C), struck out par. (2) which read as follows: "The authority of the head of an agency under subsection (c)(7) may not be delegated."

Subsec. (c). Pub. L. 116–283, §1811(d)(4)(D), as amended by Pub. L. 117–81, §1701(b)(4)(C), redesignated subsec. (b)(3) as (c) and inserted heading; redesignated subpars. (A) and (B) as pars. (1) and (2), respectively, inserted headings, and realigned margins; in par. (1) as redesignated, substituted "paragraph (2)" for "subparagraph (B)" and "subsection (a)(2)" for "subsection (c)(2)" in introductory provisions, redesignated cl. (i) and subcls. (I) and (II) as subpar. (A) and cls. (i) and (ii), respectively, redesignated cl. (ii) as subpar. (B), and realigned margins; and, in par. (2) as redesignated, substituted "This subsection" for "This paragraph".

Subsec. (d). Pub. L. 116–283, §1811(d)(5), as amended by Pub. L. 117–81, §1701(b)(4)(D), redesignated subsec. (e) of section 2304 of this title as subsec. (d) of this section, inserted heading, and substituted "paragraph (2) or (6) of subsection (a)" for "subsection (c)(2) or (c)(6)".

Subsec. (e). Pub. L. 116–283, §1811(d)(6)(A), as amended by Pub. L. 117–81, §1701(b)(4)(E)(i), inserted heading.

Pub. L. 116–283, §1811(d)(6), redesignated subsec. (f) of section 2304 of this title as subsec. (e) of this section.

Subsec. (e)(1). Pub. L. 116–283, §1811(d)(6)(A), (B), as amended by Pub. L. 117–81, §1701(b)(4)(E)(ii), inserted heading, substituted "Except as provided in paragraphs (3), (4), and (7)" for "Except as provided in paragraph (2) and paragraph (6)", and realigned margins of subpars. (A) to (C).

Subsec. (e)(2). Pub. L. 116–283, §1811(d)(6)(C), (D), (K), redesignated par. (3) as (2), inserted heading, and realigned margin. Former par. (2) redesignated (3).

Subsec. (e)(3). Pub. L. 116–283, §1811(d)(6)(C), (E), (K), redesignated par. (2) as (3), inserted heading, substituted "subsection (a)(2)" for "subsection (c)(2)", and realigned margin. Former par. (3) redesignated (2).

Subsec. (e)(4). Pub. L. 116–283, §1811(d)(6)(G), (K), designated second sentence of par. (3) as (4), inserted heading, realigned margin, and substituted "subsection (a)(7)" for "subsection (c)(7)" in subpar. (C) and "subsection (a)(4)" for "subsection (c)(4)" in subpar. (E). Former par. (4) redesignated (5).

Subsec. (e)(5). Pub. L. 116–283, §1811(d)(6)(F), (H), (K), redesignated par. (4) as (5), inserted heading, and realigned margin; inserted subpar. (A) designation before "In no case", redesignated former subpars. (A) and (B) as cls. (i) and (ii), respectively, and, in cl. (ii), substituted "chapter 137 legacy provisions" for "this chapter"; and designated concluding provisions as subpar. (B) and substituted "subparagraph (A)(ii)" for "clause (B)". Former par. (5) redesignated (6).

Subsec. (e)(6). Pub. L. 116–283, §1811(d)(6)(I), (K), redesignated par. (5) as (6), inserted heading, and realigned margin. Former par. (6) redesignated (7).

Subsec. (e)(7). Pub. L. 116–283, §1811(d)(6)(J), (K), redesignated par. (6) as (7), inserted heading, and realigned margin.

Subsec. (f). Pub. L. 116–283, §1811(d)(7)(A), inserted heading.

Pub. L. 116–283, §1811(d)(7), redesignated subsec. (l) of section 2304 of this title as subsec. (f) of this section.

Subsec. (f)(1). Pub. L. 116–283, §1811(d)(7)(A)–(C), inserted par. and subpar. headings, substituted "subsection (a)" for "subsection (c)" and "subsection (e)(1)" for "subsection (f)(1)" in subpar. (A) and "subsection (a)(2)" for "subsection (c)(2)" in subpar. (B).

Subsec. (f)(2), (3). Pub. L. 116–283, §1811(d)(7)(D)–(F), inserted headings and realigned margins.

Subsec. (g). Pub. L. 116–283, §1811(d)(8)(A), inserted heading.

Pub. L. 116–283, §1811(d)(8), redesignated subsec. (i) of section 2304 of this title as subsec. (g) of this section.

Subsec. (g)(1). Pub. L. 116–283, §1811(d)(8)(B), struck out ", as defined in section 2302(2) of this title" before period at end.

Subsec. (g)(2), (3). Pub. L. 116–283, §1811(d)(8)(C), realigned margins.

Statutory Notes and Related Subsidiaries

Effective Date of 2021 Amendment

Amendment by Pub. L. 117–81 applicable as if included in the enactment of title XVIII of Pub. L. 116–283 as enacted, see section 1701(a)(2) of Pub. L. 117–81, set out in a note preceding section 3001 of this title and Effective Date note below.

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.

Pilot Program To Incentivize Contracting With Employee-Owned Businesses

Pub. L. 117–81, div. A, title VIII, §874, Dec. 27, 2021, 135 Stat. 1863, as amended by Pub. L. 118–31, div. A, title VIII, §872, Dec. 22, 2023, 137 Stat. 349, provided that:

"(a) Qualified Business Wholly-owned Through an Employee Stock Ownership Plan Defined.—The term 'qualified businesses wholly-owned through an Employee Stock Ownership Plan' means an S corporation (as defined in section 1361(a)(1) of the Internal Revenue Code of 1986 [26 U.S.C. 1361(a)(1)]) for which 100 percent of the outstanding stock is held through an employee stock ownership plan (as defined in section 4975(e)(7) of such Code [26 U.S.C. 4975(e)(7)]).

"(b) Pilot Program to Use Noncompetitive Procedures for Certain Follow-on Contracts to Qualified Businesses Wholly-Owned Through an Employee Stock Ownership Plan.—

"(1) Establishment.—The Secretary of Defense may establish a pilot program and prescribe regulations to carry out the requirements of this section.

"(2) Follow-on contracts.—Notwithstanding the requirements of section 2304 of title 10, United States Code [see 10 U.S.C. 3201 et seq.], and with respect to a follow-on contract for the continued development, production, or provision of products or services that are the same as or substantially similar to the products or services procured by or for the Department of Defense under a prior contract held by a qualified business wholly-owned through an Employee Stock Ownership Plan, the products or services to be procured under the follow-on contract may be procured by or for the Department of Defense through procedures other than competitive procedures if the performance of the qualified business wholly-owned through an Employee Stock Ownership Plan on the prior contract was rated as satisfactory (or the equivalent) or better in the applicable past performance database.

"(3) Limitation.—Each contract held by a qualified business wholly-owned through an Employee Stock Ownership Plan may have a single opportunity for award of a sole-source follow-on contract under this section, unless a senior contracting official (as defined in section 1737 of title 10, United States Code) approves a waiver of the requirements of this section.

"(c) Verification and Reporting of Qualified Businesses Wholly-owned Through an Employee Stock Ownership Plan.—Under a pilot program established under this section, the Secretary of Defense shall establish procedures—

"(1) for businesses to verify status as a qualified businesses wholly-owned through an Employee Stock Ownership Plan for the purposes of this section by using existing Federal reporting mechanisms;

"(2) for a qualified businesses wholly-owned through an Employee Stock Ownership Plan to certify that not more than 50 percent of the amount paid under the contract will be expended on subcontracts, except—

"(A) to the extent subcontracted amounts exceeding 50 percent are subcontracted to other qualified businesses wholly-owned through an Employee Stock Ownership Plan;

"(B) in the case of contracts for products, to the extent subcontracted amounts exceeding 50 percent are for materials not available from another qualified business wholly-owned through an Employee Stock Ownership Plan; or

"(C) pursuant to such necessary and reasonable waivers as the Secretary may prescribe; and

"(3) to record information on each follow-on contract awarded under subsection (b), including details relevant to the nature of such contract and the qualified business wholly-owned through an Employee Stock Ownership Plan that received such contract, and to provide such information to the Comptroller General of the United States.

"(d) Data.—

"(1) In general.—If the Secretary of Defense establishes a pilot program under this section, the Secretary shall establish mechanisms to collect and analyze data on the pilot program for the purposes of—

"(A) developing and sharing best practices relating to the pilot program;

"(B) providing information to leadership and the congressional defense committees [Committees on Armed Services and Appropriations of the Senate and the House of Representatives] on the pilot program, including with respect to each qualified business wholly-owned through an Employee Stock Ownership Plan that received a follow-on contract under this section—

"(i) the size of such business;

"(ii) performance of the follow-on contract; and

"(iii) other information as determined necessary; and

"(C) providing information to leadership and the congressional defense committees on policy issues related to the pilot program.

"(2) Limitation.—The Secretary of Defense may not carry out the pilot program under this section before—

"(A) completing a data collection and reporting strategy and plan to meet the requirements of this subsection; and

"(B) submitting the strategy and plan to the congressional defense committees.

"(e) Sunset.—Any pilot program established under this section shall expire on the date that is eight years after the date of the enactment of this Act [Dec. 27, 2021].

"(f) Comptroller General Report.—

"(1) In general.—Not later than three years after the date of the enactment of this Act, the Comptroller General of the United States shall submit to Congress a report on any individual and aggregate uses of the authority under a pilot program established under this section.

"(2) Elements.—The report under paragraph (1) shall include the following elements:

"(A) An assessment of the frequency and nature of the use of the authority under the pilot program.

"(B) An assessment of the impact of the pilot program in supporting the national defense strategy required under section 113(g) of title 10, United States Code.

"(C) The number of businesses that became qualified businesses wholly-owned through an Employee Stock Ownership Plan in order to benefit from the pilot program and the factors that influenced that decision.

"(D) Acquisition authorities that could incentivize businesses to become qualified businesses wholly-owned through an Employee Stock Ownership Plan, including an extension of the pilot program.

"(E) Any related matters the Comptroller General considers appropriate."

Modification of Justification and Approval Requirement for Certain Department of Defense Contracts

Pub. L. 116–92, div. A, title VIII, §823, Dec. 20, 2019, 133 Stat. 1490, provided that:

"(a) Modification of Justification and Approval Requirement.—Notwithstanding section 811 of the National Defense Authorization Act for Fiscal Year 2010 (Public Law 111–84; 123 Stat. 2405) [41 U.S.C. 3304 note]—

"(1) no justification and approval is required under such section for a sole-source contract awarded by the Department of Defense in a covered procurement for an amount not exceeding $100,000,000; and

"(2) for purposes of subsections (a)(2) and (c)(3)(A) of such section, the appropriate official designated to approve the justification for a sole-source contract awarded by the Department of Defense in a covered procurement exceeding $100,000,000 is the official designated in section 2304(f)(1)(B)(ii) of title 10, United States Code [now 10 U.S.C. 3204(e)(1)(B)(ii)].

"(b) Guidance.—Not later than 90 days after the date of the enactment of this Act [Dec. 20, 2019], the Secretary of Defense shall issue guidance to implement the authority under subsection (a).

"(c) Comptroller General Review.—

"(1) Data tracking and collection.—The Department of Defense shall track the use of the authority as modified by subsection (a) and make the data available to the Comptroller General for purposes of the report required under paragraph (2).

"(2) Report.—Not later than March 1, 2022, the Comptroller General of the United States shall submit a report to the congressional defense committees [Committees on Armed Services and Appropriations of the Senate and the House of Representatives] on the use of the authority as modified by subsection (a) through the end of fiscal year 2021. The report shall include—

"(A) a review of the financial effect of the change to the justification and approval requirement in subsection (a) on the native corporations and businesses and associated native communities;

"(B) a description of the nature and extent of contracts excluded from the justification and approval requirement by subsection (a); and

"(C) other matters the Comptroller General deems appropriate."

§3205. Simplified procedures for small purchases

(a) Authorization.—In order to promote efficiency and economy in contracting and to avoid unnecessary burdens for agencies and contractors, the Federal Acquisition Regulation shall provide for—

(1) special simplified procedures for purchases of property and services for amounts not greater than the simplified acquisition threshold; and

(2) special simplified procedures for purchases of property and services for amounts greater than the simplified acquisition threshold but not greater than $5,000,000 with respect to which the contracting officer reasonably expects, based on the nature of the property or services sought and on market research, that offers will include only commercial products or commercial services.

(b) Prohibition on Dividing Contracts.—A proposed purchase or contract for an amount above the simplified acquisition threshold may not be divided into several purchases or contracts for lesser amounts in order to use the simplified procedures required by subsection (a).

(c) Promotion of Competition.—In using simplified procedures, the head of an agency shall promote competition to the maximum extent practicable.

(d) Compliance With Special Requirements of Federal Acquisition Regulation.—The head of an agency shall comply with the Federal Acquisition Regulation provisions referred to in section 1901(e) of title 41.

(Added and amended Pub. L. 116–283, div. A, title XVIII, §1811(d)(1), (9), Jan. 1, 2021, 134 Stat. 4166, 4170.)

Editorial Notes

Codification

The text of subsec. (g) of section 2304 of this title, which was transferred to this section and amended by Pub. L. 116–283, §1811(d)(9), was based on Pub. L. 98–369, div. B, title VII, §2723(a)(1)(C), July 18, 1984, 98 Stat. 1187; Pub. L. 100–26, §7(d)(3)(A), Apr. 21, 1987, 101 Stat. 281; Pub. L. 101–510, div. A, title VIII, §806(b), Nov. 5, 1990, 104 Stat. 1592; Pub. L. 102–25, title VII, §701(d)(2)(A), Apr. 6, 1991, 105 Stat. 114; Pub. L. 103–355, title I, §1001(2), title IV, §4401(a), Oct. 13, 1994, 108 Stat. 3249, 3347; Pub. L. 104–106, div. D, title XLII, §4202(a)(1), Feb. 10, 1996, 110 Stat. 652; Pub. L. 105–85, div. A, title VIII, §850(f)(3)(B), Nov. 18, 1997, 111 Stat. 1850; Pub. L. 111–350, §5(b)(12)(D), Jan. 4, 2011, 124 Stat. 3843; Pub. L. 115–232, div. A, title VIII, §836(c)(2), Aug. 13, 2018, 132 Stat. 1864.

Prior Provisions

A prior section 3205, act Aug. 10, 1956, ch. 1041, 70A Stat. 173; Pub. L. 85–600, §1(3), Aug. 6, 1958, 72 Stat. 522; Pub. L. 85–861, §1(60), (65), Sept. 2, 1958, 72 Stat. 1462, 1463; Pub. L. 95–551, §2, Oct. 30, 1978, 92 Stat. 2069, prescribed authorized strength of Regular Army in commissioned officers on active list, exclusive of certain categories, prior to repeal by Pub. L. 96–513, title II, §202, title VII, §701, Dec. 12, 1980, 94 Stat. 2878, 2955, effective Sept. 15, 1981.

Amendments

2021—Subsec. (a). Pub. L. 116–283, §1811(d)(9)(A), (C), inserted heading, struck out par. (1) designation before "In order to", and redesignated subpars. (A) and (B) as pars. (1) and (2), respectively. Former pars. (2) to (4) redesignated subsecs. (b) to (d), respectively.

Pub. L. 116–283, §1811(d)(9), redesignated subsec. (g) of section 2304 of this title as subsec. (a) of this section.

Subsec. (b). Pub. L. 116–283, §1811(d)(9)(B), (D), redesignated subsec. (a)(2) as (b), inserted heading, and substituted "subsection (a)" for "paragraph (1)".

Subsec. (c). Pub. L. 116–283, §1811(d)(9)(B), (E), redesignated subsec. (a)(3) as (c) and inserted heading.

Subsec. (d). Pub. L. 116–283, §1811(d)(9)(B), (F), redesignated subsec. (a)(4) as (d) and inserted heading.

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.

§3206. Planning and solicitation requirements

(a) Planning and Specifications.—

(1) Preparing for procurement.—In preparing for the procurement of property or services, the head of an agency shall—

(A) specify the agency's needs and solicit bids or proposals in a manner designed to achieve full and open competition for the procurement;

(B) use advance procurement planning and market research; and

(C) develop specifications in such manner as is necessary to obtain full and open competition with due regard to the nature of the property or services to be acquired.

(2) Requirements of specifications.—Each solicitation under chapter 137 legacy provisions shall include specifications which—

(A) consistent with the provisions of chapter 137 legacy provisions, permit full and open competition; and

(B) include restrictive provisions or conditions only to the extent necessary to satisfy the needs of the agency or as authorized by law.

(3) Types of specifications.—For the purposes of paragraphs (1) and (2), the type of specification included in a solicitation shall depend on the nature of the needs of the agency and the market available to satisfy such needs. Subject to such needs, specifications may be stated in terms of—

(A) function, so that a variety of products or services may qualify;

(B) performance, including specifications of the range of acceptable characteristics or of the minimum acceptable standards; or

(C) design requirements.

(b) Contents of solicitation.—In addition to the specifications described in subsection (a), a solicitation for sealed bids or competitive proposals (other than for a procurement for commercial products or commercial services using special simplified procedures or a purchase for an amount not greater than the simplified acquisition threshold) shall at a minimum include—

(1) a statement of—

(A) all significant factors and significant subfactors which the head of the agency reasonably expects to consider in evaluating sealed bids (including price) or competitive proposals (including cost or price, cost-related or price-related factors and subfactors, and noncost-related or nonprice-related factors and subfactors); and

(B) the relative importance assigned to each of those factors and subfactors; and

(2)(A) in the case of sealed bids—

(i) a statement that sealed bids will be evaluated without discussions with the bidders; and

(ii) the time and place for the opening of the sealed bids; or

(B) in the case of competitive proposals—

(i) either a statement that the proposals are intended to be evaluated with, and award made after, discussions with the offerors, or a statement that the proposals are intended to be evaluated, and award made, without discussions with the offerors (other than discussions conducted for the purpose of minor clarification) unless discussions are determined to be necessary; and

(ii) the time and place for submission of proposals.

(c) Evaluation Factors.—

(1) In general.—In prescribing the evaluation factors to be included in each solicitation for competitive proposals, the head of an agency—

(A) shall (except as provided in paragraph (3)) clearly establish the relative importance assigned to the evaluation factors and subfactors, including the quality of the product or services to be provided (including technical capability, management capability, prior experience, and past performance of the offeror);

(B) shall (except as provided in paragraph (3)) include cost or price to the Federal Government as an evaluation factor that must be considered in the evaluation of proposals; and

(C) shall disclose to offerors whether all evaluation factors other than cost or price, when combined, are—

(i) significantly more important than cost or price;

(ii) approximately equal in importance to cost or price; or

(iii) significantly less important than cost or price.

(2) Restriction on implementing regulations.—The regulations implementing paragraph (1)(C) may not define the terms "significantly more important" and "significantly less important" as specific numeric weights that would be applied uniformly to all solicitations or a class of solicitations.

(3) Exceptions for certain multiple task or delivery order contracts.—If the head of an agency issues a solicitation for multiple task or delivery order contracts under section 3403(d)(1)(B) of this title for the same or similar services and intends to make a contract award to each qualifying offeror—

(A) cost or price to the Federal Government need not, at the Government's discretion, be considered under paragraph (1)(B) as an evaluation factor for the contract award; and

(B) if, pursuant to subparagraph (A), cost or price to the Federal Government is not considered as an evaluation factor for the contract award—

(i) the disclosure requirement of paragraph (1)(C) shall not apply; and

(ii) cost or price to the Federal Government shall be considered in conjunction with the issuance pursuant to section 3406(c) of this title of a task or delivery order under any contract resulting from the solicitation.

(4) Definition.—In paragraph (3), the term "qualifying offeror" means an offeror that—

(A) is determined to be a responsible source;

(B) submits a proposal that conforms to the requirements of the solicitation; and

(C) the contracting officer has no reason to believe would likely offer other than fair and reasonable pricing.

(5) Exclusion of applicability to certain contracts.—Paragraph (3) shall not apply to multiple task or delivery order contracts if the solicitation provides for sole source task or delivery order contracts pursuant to section 8(a) of the Small Business Act (15 U.S.C. 637(a)).

(d) Additional Information in Solicitation.—Nothing in this section prohibits an agency from—

(1) providing additional information in a solicitation, including numeric weights for all evaluation factors and subfactors on a case-by-case basis; or

(2) stating in a solicitation that award will be made to the offeror that meets the solicitation's mandatory requirements at the lowest cost or price.

(e) Limitation on Evaluation of Purchase Options.—The head of an agency, in issuing a solicitation for a contract to be awarded using sealed bid procedures, may not include in such solicitation a clause providing for the evaluation of prices for options to purchase additional property or services under the contract unless the head of the agency has determined that there is a reasonable likelihood that the options will be exercised.

(Added and amended Pub. L. 116–283, div. A, title XVIII, §1811(e), Jan. 1, 2021, 134 Stat. 4170; Pub. L. 117–81, div. A, title XVII, §1701(b)(4)(F), (d)(4), Dec. 27, 2021, 135 Stat. 2133, 2136.)

Codification

The text of subsec. (a) of section 2305 of this title, which was transferred to this section and amended by Pub. L. 116–283, §1811(e)(2)–(7), was based on Pub. L. 98–369, div. B, title VII, §2723(b), July 18, 1984, 98 Stat. 1191; Pub. L. 99–500, §101(c) [title X, §924(a)], Oct. 18, 1986, 100 Stat. 1783–82, 1783-153, and Pub. L. 99–591, §101(c) [title X, §924(a)], Oct. 30, 1986, 100 Stat. 3341–82, 3341-153; Pub. L. 99–661, div. A, title IX, formerly title IV, §924(a), Nov. 14, 1986, 100 Stat. 3932, renumbered title IX, Pub. L. 100–26, §3(5), Apr. 21, 1987, 101 Stat. 273; Pub. L. 101–510, div. A, title VIII, §802(a)–(c), Nov. 5, 1990, 104 Stat. 1588, 1589; Pub. L. 103–355, title I, §1011, 1012, title IV, §4401(b), Oct. 13, 1994, 108 Stat. 3254, 3255, 3347; Pub. L. 104–106, div. D, title XLII, §4202(a)(2), Feb. 10, 1996, 110 Stat. 653; Pub. L. 114–328, div. A, title VIII, §825(a), Dec. 23, 2016, 130 Stat. 2279; Pub. L. 115–232, div. A, title VIII, §836(c)(3)(A), Aug. 13, 2018, 132 Stat. 1864.

Editorial Notes

Prior Provisions

A prior section 3206, act Aug. 10, 1956, ch. 1041, 70A Stat. 173; Pub. L. 85–155, title I, §101(4), Aug. 21, 1957, 71 Stat. 376; Pub. L. 90–130, §1(9)(A), (B), Nov. 8, 1967, 81 Stat. 375, prescribed authorized strength of Regular Army Nurse Corps in commissioned officers on active list of Regular Army, prior to repeal by Pub. L. 96–513, title II, §202, title VII, §701, Dec. 12, 1980, 94 Stat. 2878, 2955, effective Sept. 15, 1981.

Amendments

2021—Pub. L. 116–283, §1811(e)(2), transferred subsec. (a) of section 2305 of this title to this section and redesignated pars. (2) to (5) thereof as subsecs. (b) to (e), respectively.

Subsec. (a). Pub. L. 116–283, §1811(e)(3)(A), (E)(i), inserted heading and redesignated subpars. (A) to (C) of par. (1) as pars. (1) to (3), respectively.

Subsec. (a)(1). Pub. L. 116–283, §1811(e)(3)(E), as amended by Pub. L. 117–81, §1701(b)(4)(F), redesignated par. (1)(A) as (1), inserted heading, redesignated cls. (i) to (iii) as subpars. (A) to (C), respectively, and realigned margins.

Subsec. (a)(2). Pub. L. 116–283, §1811(e)(3)(A), (B), (D), redesignated par. (1)(B) as (2), inserted heading, and realigned margin, redesignated cls. (i) and (ii) as subpars. (A) and (B), respectively, and substituted "chapter 137 legacy provisions" for "this chapter" in introductory provisions and in subpar. (A). Former par. (2) redesignated subsec. (b).

Subsec. (a)(3). Pub. L. 117–81, §1701(d)(4), substituted "paragraphs (1) and (2)" for "subparagraphs (A) and (B)" in introductory provisions.

Pub. L. 116–283, §1811(e)(3)(A), (C), (D), as amended by Pub. L. 117–81, §1701(b)(4)(F), redesignated par. (1)(C) as (3), inserted heading, and realigned margin and redesignated cls. (i) to (iii) as subpars. (A) to (C), respectively. Former par. (3) redesignated subsec. (c).

Subsec. (b). Pub. L. 116–283, §1811(e)(2), (4), redesignated subsec. (a)(2) as (b), inserted heading, and substituted "subsection (a)" for "paragraph (1)" in introductory provisions, redesignated subpar. (A) and its cls. (i) and (ii) as par. (1) and subpars. (A) and (B), respectively, and redesignated subpar. (B), its cls. (i) and (ii), and each of their subcls. (I) and (II) as par. (2), subpars. (A) and (B), and cls. (i) and (ii), respectively.

Subsec. (c). Pub. L. 116–283, §1811(e)(2), (5)(A), (B), redesignated subsec. (a)(3) as (c), inserted heading, redesignated subpars. (A) to (E) as pars. (1) to (5), respectively, and realigned margins.

Subsec. (c)(1). Pub. L. 116–283, §1811(e)(5)(A), (C), inserted heading, substituted "paragraph (3)" for "subparagraph (C)" in two places, redesignated cls. (i) to (iii) as subpars. (A) to (C), respectively, and, in subpar. (C) as redesignated, redesignated subcls. (I) to (III) as cls. (i) to (iii), respectively.

Subsec. (c)(2). Pub. L. 116–283, §1811(e)(5)(B), (D), redesignated par. (3)(B) as (2), inserted heading, and substituted "paragraph (1)(C)" for "clause (iii) of subparagraph (A)".

Subsec. (c)(3). Pub. L. 116–283, §1811(e)(5)(B), (E), redesignated par. (3)(C) as (3), inserted heading, and substituted "section 3403(d)(1)(B)" for "section 2304a(d)(1)(B)" in introductory provisions; redesignated cl. (i) as subpar. (A) and substituted "paragraph (1)(B)" for "clause (ii) of subparagraph (A)"; and redesignated cl. (ii) and its subcls. (I) and (II) as subpar. (B) and cls. (i) and (ii), respectively, and substituted "subparagraph (A)" for "clause (i)" in introductory provisions, "paragraph (1)(C)" for "clause (iii) of subparagraph (A)" in cl. (i), and "section 3406(c)" for "section 2304c(b)" in cl. (ii).

Subsec. (c)(4). Pub. L. 116–283, §1811(e)(5)(B), (F), redesignated par. (3)(D) as (4), inserted heading, substituted "paragraph (3)" for "subparagraph (C)" in introductory provisions, and redesignated cls. (i) to (iii) as subpars. (A) to (C), respectively.

Subsec. (c)(5). Pub. L. 116–283, §1811(e)(5)(B), (G), redesignated par. (3)(E) as (5), inserted heading, and substituted "Paragraph (3)" for "Subparagraph (C)".

Subsec. (d). Pub. L. 116–283, §1811(e)(2), (6), redesignated subsec. (a)(4) as (d), inserted heading, substituted "this section" for "this subsection" in introductory provisions, and redesignated subpars. (A) and (B) as pars. (1) and (2), respectively.

Subsec. (e). Pub. L. 116–283, §1811(e)(2), (7), redesignated subsec. (a)(5) as (e) and inserted heading.

Statutory Notes and Related Subsidiaries

Effective Date of 2021 Amendment

Amendment by section 1701(b)(4)(F) of Pub. L. 117–81 applicable as if included in the enactment of title XVIII of Pub. L. 116–283 as enacted, see section 1701(a)(2) of Pub. L. 117–81, set out in a note preceding section 3001 of this title and Effective Date note below.

Amendment by section 1701(d)(4) of Pub. L. 117–81 to take effect immediately after the amendments made by title XVIII of Pub. L. 116–283 have taken effect, see section 1701(a)(3) of Pub. L. 117–81, set out in a note preceding section 3001 of this title and Effective Date note below.

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.

Pilot Program To Use Alpha Contracting Teams for Complex Requirements

Pub. L. 116–92, div. A, title VIII, §802, Dec. 20, 2019, 133 Stat. 1483, provided that:

"(a) In General.—(1) The Secretary of Defense shall select at least 2, and up to 5, initiatives to participate in a pilot [program] to use teams that, with the advice of expert third parties, focus on the development of complex contract technical requirements for services, with each team focusing on developing achievable technical requirements that are appropriately valued and identifying the most effective acquisition strategy to achieve those requirements.

"(2) The Secretary shall develop metrics for tracking progress of the program at improving quality and acquisition cycle time.

"(b) Development of Criteria and Initiatives.—(1) Not later than February 1, 2020, the Secretary of Defense shall establish the pilot program and notify the congressional defense committees [Committees on Armed Services and Appropriations of the Senate and the House of Representatives] of the criteria used to select initiatives and the metrics used to track progress.

"(2) Not later than May 1, 2020, the Secretary shall notify the congressional defense committees of the initiatives selected for the program.

"(3) Not later than December 1, 2020, the Secretary shall brief the congressional defense committees on the progress of the selected initiatives, including the progress of the initiatives at improving quality and acquisition cycle time according to the metrics developed under subsection (a)(2)."

§3207. Assessment before contract for acquisition of supplies is entered into

The Secretary of Defense shall ensure that before a contract for the delivery of supplies to the Department of Defense is entered into—

(1) when the appropriate officials of the Department are making an assessment of the most advantageous source for acquisition of the supplies (considering quality, price, delivery, and other factors), there is a review of the availability and cost of each item of supply—

(A) through the supply system of the Department of Defense; and

(B) under standard Government supply contracts, if the item is in a category of supplies defined under regulations of the Secretary of Defense as being potentially available under a standard Government supply contract; and

(2) there is a review of both the procurement history of the item and a description of the item, including, when necessary for an adequate description of the item, a picture, drawing, diagram, or other graphic representation of the item.

(Added and amended Pub. L. 116–283, div. A, title XVIII, §1811(f), Jan. 1, 2021, 134 Stat. 4173.)

Editorial Notes

Codification

The text of subsec. (c) of section 2305 of this title, which was transferred to this section and amended by Pub. L. 116–283, §1811(f)(2), was based on Pub. L. 98–525, title XII, §1213(a), Oct. 19, 1984, 98 Stat. 2591.

Prior Provisions

A prior section 3207, act Aug. 10, 1956, ch. 1041, 70A Stat. 173; Pub. L. 85–155, title I, §101(5), Aug. 21, 1957, 71 Stat. 376; Pub. L. 90–130, §1(9)(C), (D), Nov. 8, 1967, 81 Stat. 375, prescribed authorized strength of Army Medical Specialist Corps in commissioned officers on active list of Regular Army, prior to repeal by Pub. L. 96–513, title II, §202, title VII, §701, Dec. 12, 1980, 94 Stat. 2878, 2955, effective Sept. 15, 1981.

Amendments

2021—Pub. L. 116–283, §1811(f)(2), transferred subsec. (c) of section 2305 of this title to this section and struck out subsec. (c) designation at beginning.

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.

Process for Enhanced Supply Chain Scrutiny

Pub. L. 115–91, div. A, title VIII, §807, Dec. 12, 2017, 131 Stat. 1456, provided that:

"(a) Process.—Not later than 90 days after the date of the enactment of this Act [Dec. 12, 2017], the Secretary of Defense shall establish a process for enhancing scrutiny of acquisition decisions in order to improve the integration of supply chain risk management into the overall acquisition decision cycle.

"(b) Elements.—The process under subsection (a) shall include the following elements:

"(1) Designation of a senior official responsible for overseeing the development and implementation of the process.

"(2) Development or integration of tools to support commercial due-diligence, business intelligence, or otherwise analyze and monitor commercial activity to understand business relationships with entities determined to be threats to the United States.

"(3) Development of risk profiles of products or services based on commercial due-diligence tools and data services.

"(4) Development of education and training curricula for the acquisition workforce that supports the process.

"(5) Integration, as needed, with intelligence sources to develop threat profiles of entities determined to be threats to the United States.

"(6) Periodic review and assessment of software products and services on computer networks of the Department of Defense to remove prohibited products or services.

"(7) Synchronization of the use of current authorities for making supply chain decisions, including section 806 of Public Law 111–383 (10 U.S.C. 2304 note) or improved use of suspension and debarment officials.

"(8) Coordination with interagency, industrial, and international partners, as appropriate, to share information, develop Government-wide strategies for dealing with significant entities determined to be significant threats to the United States, and effectively use authorities in other departments and agencies to provide consistent, Government-wide approaches to supply chain threats.

"(9) Other matters as the Secretary considers necessary.

"(c) Notification.—Not later than 90 days after establishing the process required by subsection (a), the Secretary shall provide a written notification to the Committees on Armed Services of the Senate and House of Representatives that the process has been established. The notification also shall include the following:

"(1) Identification of the official designated under subsection (b)(1).

"(2) Identification of tools and services currently available to the Department of Defense under subsection (b)(2).

"(3) Assessment of additional tools and services available under subsection (b)(2) that the Department of Defense should evaluate.

"(4) Identification of, or recommendations for, any statutory changes needed to improve the effectiveness of the process.

"(5) Projected resource needs for implementing any recommendations made by the Secretary."

§3208. Planning for future competition in contracts for major systems

(a) Development Contract.—

(1) Determining whether proposals are necessary.—The Secretary of Defense shall ensure that, in preparing a solicitation for the award of a development contract for a major system, the head of an agency consider requiring in the solicitation that an offeror include in its offer proposals described in paragraph (2). In determining whether to require such proposals, the head of the agency shall give due consideration to the purposes for which the system is being procured and the technology necessary to meet the system's required capabilities. If such proposals are required, the head of the agency shall consider them in evaluating the offeror's price.

(2) Contents of proposals.—Proposals referred to in the first sentence of paragraph (1) are the following:

(A) Proposals to incorporate in the design of the major system items which are currently available within the supply system of the Federal agency responsible for the major system, available elsewhere in the national supply system, or commercially available from more than one source.

(B) With respect to items that are likely to be required in substantial quantities during the system's service life, proposals to incorporate in the design of the major system items which the United States will be able to acquire competitively in the future.

(b) Production Contract.—

(1) Determining whether proposals are necessary.—The Secretary of Defense shall ensure that, in preparing a solicitation for the award of a production contract for a major system, the head of an agency consider requiring in the solicitation that an offeror include in its offer proposals described in paragraph (2). In determining whether to require such proposals, the head of the agency shall give due consideration to the purposes for which the system is being procured and the technology necessary to meet the system's required capabilities. If such proposals are required, the head of the agency shall consider them in evaluating the offeror's price.

(2) Contents of proposals.—Proposals referred to in the first sentence of paragraph (1) are proposals identifying opportunities to ensure that the United States will be able to obtain on a competitive basis items procured in connection with the system that are likely to be reprocured in substantial quantities during the service life of the system. Proposals submitted in response to such requirement may include the following:

(A) Proposals to provide to the United States the right to use technical data to be provided under the contract for competitive reprocurement of the item, together with the cost to the United States, if any, of acquiring such technical data and the right to use such data.

(B) Proposals for the qualification or development of multiple sources of supply for the item.

(c) Consideration of Factors as Objectives in Negotiations.—If the head of an agency is making a noncompetitive award of a development contract or a production contract for a major system, the factors specified in subsections (a) and (b) to be considered in evaluating an offer for a contract may be considered as objectives in negotiating the contract to be awarded. Such objectives may not impair the rights of prospective contractors or subcontractors otherwise provided by law.

(d) Items Developed Exclusively at Private Expense.—

(1) Limitation.—Whenever the head of an agency requires that proposals described in subsection (a)(2) or (b)(2) be submitted by an offeror in its offer, the offeror shall not be required to provide a proposal that enables the United States to acquire competitively in the future an identical item if the item was developed exclusively at private expense unless the head of the agency determines that—

(A) the original supplier of such item will be unable to satisfy program schedule or delivery requirements; or

(B) proposals by the original supplier of such item to meet the mobilization requirements are insufficient to meet the agency's mobilization needs.

(2) Evaluation.—In considering offers in response to a solicitation requiring proposals described in subsection (a)(2) or (b)(2), the head of an agency shall base any evaluation of items developed exclusively at private expense on an analysis of the total value, in terms of innovative design, life-cycle costs, and other pertinent factors, of incorporating such items in the system.

(Added and amended Pub. L. 116–283, div. A, title XVIII, §1811(g), Jan. 1, 2021, 134 Stat. 4173.)

Editorial Notes

Codification

The text of subsec. (d) of section 2305 of this title, which was transferred to this section and amended by Pub. L. 116–283, §1811(g)(2)–(6) was based on Pub. L. 98–525, title XII, §1213(a), Oct. 19, 1984, 98 Stat. 2591; Pub. L. 100–456, div. A, title VIII, §806, Sept. 29, 1988, 102 Stat. 2010.

Prior Provisions

A prior section 3209, act Aug. 10, 1956, ch. 1041, 70A Stat. 174; Pub. L. 85–861, §1(60), Sept. 2, 1958, 72 Stat. 1462; Pub. L. 90–130, §1(9)(E), Nov. 8, 1967, 81 Stat. 375; Pub. L. 95–485, title VIII, §820(c)(1), (2), Oct. 20, 1978, 92 Stat. 1627, prescribed, with exception of Army Nurse Corps and Army Medical Specialist Corps, the authorized strength of each branch in commissioned officers on active list of Regular Army, prior to repeal by Pub. L. 96–513, title II, §202, title VII, §701, Dec. 12, 1980, 94 Stat. 2878, 2955, effective Sept. 15, 1981.

A prior section 3210 was renumbered section 7110 of this title.

A prior section 3211, acts Aug. 10, 1956, ch. 1041, 70A Stat. 175; Sept. 2, 1958, Pub. L. 85–861, §1(67), 72 Stat. 1463; Nov. 8, 1967, Pub. L. 90–130, §1(9)(F), 81 Stat. 375, prescribed authorized strength of Regular Army in officers in each regular grade on promotion lists set forth in section 3296 of this title, prior to repeal by Pub. L. 96–513, title II, §202, title VII, §701, Dec. 12, 1980, 94 Stat. 2878, 2955, effective Sept. 15, 1981. See section 521 et seq. of this title.

A prior section 3212, acts Aug. 10, 1956, ch. 1041, 70A Stat. 175; Sept. 2, 1958, Pub. L. 85–861, §1(68), 72 Stat. 1463; June 30, 1960, Pub. L. 86–559, §1(6), 74 Stat. 265; Nov. 8, 1967, Pub. L. 90–130, §1(9)(G), 81 Stat. 375; Dec. 12, 1980, Pub. L. 96–513, title V, §502(6), 94 Stat. 2909, related to temporary increases in authorized strength in grades of Army Reserve and Army National Guard of United States, prior to repeal by Pub. L. 103–337, div. A, title XVI, §§1662(a)(3), 1691, Oct. 5, 1994, 108 Stat. 2988, 3026, effective Dec. 1, 1994. See section 12009 of this title.

Prior sections 3213 and 3214 were repealed by Pub. L. 96–513, title II, §202, title VII, §701, Dec. 12, 1980, 94 Stat. 2878, 2955, effective Sept. 15, 1981.

Section 3213, act Aug. 10, 1956, ch. 1041, 70A Stat. 176, prescribed authorized strength of Regular Army in warrant officers on active list.

Section 3214, acts Aug. 10, 1956, ch. 1041, 70A Stat. 176; Sept. 2, 1958, Pub. L. 85–861, §1(64), 72 Stat. 1463, prescribed authorized strength of Regular Army in enlisted members on active duty, exclusive of officer candidates.

A prior section 3215, acts Aug. 10, 1956, ch. 1041, 70A Stat. 176; Nov. 8, 1967, Pub. L. 90–130, §1(9)(H), 81 Stat. 375, authorized strength of Women's Army Corps of Regular Army in warrant officers on active list and in enlisted members on active duty to be prescribed by Secretary, prior to repeal by Pub. L. 95–485, title VIII, §820(c)(3), Oct. 20, 1978, 92 Stat. 1627.

A prior section 3216, act Aug. 10, 1956, ch. 1041, 70A Stat. 176, prescribed authorized strength of Corps of Engineers in enlisted members on active duty, prior to repeal by Pub. L. 96–513, title II, §202, title VII, §701, Dec. 12, 1980, 94 Stat. 2878, 2955, effective Sept. 15, 1981.

Prior sections 3217 to 3220 were repealed by Pub. L. 103–337, div. A, title XVI, §§1662(a)(3), 1691, Oct. 5, 1994, 108 Stat. 2988, 3026, effective Dec. 1, 1994.

Section 3217, added Pub. L. 85–861, §1(69)(A), Sept. 2, 1958, 72 Stat. 1463, related to authorized strength of Army in reserve commissioned officers in active status. See section 12003 of this title.

Section 3218, added Pub. L. 85–861, §1(69)(A), Sept. 2, 1958, 72 Stat. 1463; amended Pub. L. 96–107, title III, §302(a), Nov. 9, 1979, 93 Stat. 806; Pub. L. 100–456, div. A, title XII, §1234(a)(1), Sept. 29, 1988, 102 Stat. 2059; Pub. L. 102–190, div. A, title X, §1061(a)(20)(B), Dec. 5, 1991, 105 Stat. 1473, related to authorized strength of Army in reserve general officers in active status. See section 12004 of this title.

Section 3219, added Pub. L. 85–861, §1(69)(A), Sept. 2, 1958, 72 Stat. 1464, related to authorized strength of Army in reserve commissioned officers in active status in grades below brigadier general. See section 12005(a) of this title.

Section 3220, added Pub. L. 85–861, §1(69)(A), Sept. 2, 1958, 72 Stat. 1464; amended Pub. L. 95–485, title VIII, §820(c)(4), Oct. 20, 1978, 92 Stat. 1627, related to distribution of reserve commissioned officers by Secretary of the Army. See section 12007 of this title.

Amendments

2021—Pub. L. 116–283, §1811(g)(2), redesignated subsec. (d) of section 2305 of this title as subsec. (a) of this section and redesignated pars. (2) to (4) thereof as subsecs. (b) to (d), respectively.

Subsec. (a). Pub. L. 116–283, §1811(g)(3), inserted subsec. heading, redesignated par. (1)(A) as (1), inserted par. heading, and substituted "paragraph (2)" for "subparagraph (B)", and redesignated par. (1)(B) and its cls. (i) and (ii) as par. (2) and subpars. (A) and (B), respectively, inserted par. heading, and substituted "paragraph (1)" for "subparagraph (A)" in introductory provisions.

Subsec. (b). Pub. L. 116–283, §1811(g)(2), (4), redesignated subsec. (a)(2) as (b), inserted subsec. heading, redesignated subpar. (A) as par. (1), inserted par. heading, and substituted "paragraph (2)" for "subparagraph (B)", and redesignated subpar. (B) and its cls. (i) and (ii) as par. (2) and subpars. (A) and (B), respectively, inserted par. heading, and substituted "paragraph (1)" for "subparagraph (A)" in introductory provisions.

Subsec. (c). Pub. L. 116–283, §1811(g)(2), (5), redesignated subsec. (a)(3) as (c), inserted heading, and substituted "subsections (a) and (b)" for "paragraphs (1) and (2)".

Subsec. (d). Pub. L. 116–283, §1811(g)(2), (6), redesignated subsec. (a)(4) as (d), inserted subsec. heading, and substituted "subsection (a)(2) or (b)(2)" for "paragraph (1)(B) or (2)(B)" in introductory provisions; redesignated subpar. (A) and its cls. (i) and (ii) as par. (1) and subpars. (A) and (B), respectively, inserted par. heading, and realigned margins; and redesignated subpar. (B) as par. (2), inserted heading, realigned margin, and substituted "subsection (a)(2) or (b)(2)" for "paragraph (1)(B) or (2)(B)".

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.

CHAPTER 222—INDEPENDENT COST ESTIMATION AND COST ANALYSIS

        

        

¹ Editorially supplied.

§3221. Director of Cost Assessment and Program Evaluation

(a) In General.—The Director of Cost Assessment and Program Evaluation shall ensure that the cost estimation and cost analysis processes of the Department of Defense provide accurate information and realistic estimates of cost for the acquisition programs of the Department of Defense.

(b) Functions.—In carrying out the responsibility of the Director under subsection (a), the Director shall—

(1) prescribe, by authority of the Secretary of Defense, policies and procedures for the conduct of cost estimation and cost analysis for the acquisition programs of the Department of Defense;

(2) with respect to cost estimation in the Department of Defense in general and with respect to specific cost estimates and cost analyses to be conducted in connection with a major defense acquisition program or major subprogram under chapters 321, 324, and 325, subchapter I of chapter 322, and sections 3042, 4232, 4273, 4293, 4321, 4323, and 4328 of this title, provide guidance to and consult with—

(A) the Secretary of Defense;

(B) the Under Secretary of Defense for Acquisition and Sustainment;

(C) the Under Secretary of Defense (Comptroller);

(D) the Secretaries of the military departments; and

(E) the heads of the Defense Agencies;

(3) issue guidance relating to the proper discussion of risk in cost estimates generally, and specifically, for the proper discussion of risk in cost estimates for major defense acquisition programs and major subprograms;

(4) issue guidance relating to full consideration of life-cycle management and sustainability costs in major defense acquisition programs and major subprograms;

(5) review all cost estimates and cost analyses conducted in connection with major defense acquisition programs and major subprograms;

(6) conduct or approve independent cost estimates and cost analyses for all major defense acquisition programs and major subprograms—

(A) in advance of—

(i) any decision to grant milestone approval pursuant to section 4252 of this title;

(ii) any decision to enter into low-rate initial production or full-rate production;

(iii) any certification under section 4376 of this title; and

(iv) any decision to enter into a contract in connection with a military construction project of a value greater than $500,000,000; and

(B) at any other time considered appropriate by the Director, upon the request of the Under Secretary of Defense for Acquisition and Sustainment, or upon the request of the milestone decision authority;

(7) periodically assess and update the cost indexes used by the Department to ensure that such indexes have a sound basis and meet the Department's needs for realistic cost estimation; and

(8) annually review the cost and associated information required to be included, by section 4351(c)(1) of this title, in the Selected Acquisition Reports required by that section.

(c) Staff.—The Secretary of Defense shall ensure that the Director of Cost Assessment and Program Evaluation has sufficient professional staff of military and civilian personnel to enable the Director to carry out the duties and responsibilities of the Director under this chapter.

(Added and amended Pub. L. 116–283, div. A, title XVIII, §1812(a), (b), Jan. 1, 2021, 134 Stat. 4174; Pub. L. 117–81, div. A, title XVII, §1701(c)(1), (d)(5), (o)(6)(A)(i), Dec. 27, 2021, 135 Stat. 2135, 2136, 2147; Pub. L. 117–263, div. B, title XXVIII, §2806(b), Dec. 23, 2022, 136 Stat. 2995; Pub. L. 118–159, div. A, title VIII, §806(b)(2), title XVII, §1701(a)(35), Dec. 23, 2024, 138 Stat. 1974, 2205.)

Editorial Notes

Codification

The text of subsec. (a) of section 2334 of this title, which was transferred to this section, redesignated as subsecs. (a) and (b), and amended by Pub. L. 116–283, §1812(b)(1), (2), was based on Pub. L. 111–23, title I, §101(b)(1), May 22, 2009, 123 Stat. 1706; Pub. L. 113–66, div. A, title VIII, §812(c)(1), Dec. 26, 2013, 127 Stat. 808; Pub. L. 114–92, div. A, title VIII, §824(b), Nov. 25, 2015, 129 Stat. 907; Pub. L. 114–328, div. A, title VIII, §§842(a)(1), (2), (b)(1), (2), 846(3), Dec. 23, 2016, 130 Stat. 2288, 2289, 2292; Pub. L. 115–91, div. A, title X, §1081(a)(31), Dec. 12, 2017, 131 Stat. 1596; Pub. L. 116–92, div. A, title IX, §902(53), Dec. 20, 2019, 133 Stat. 1549.

The text of subsec. (h) of section 2334 of this title, which was transferred to this section, redesignated as subsec. (c), and amended by Pub. L. 116–283, §1812(b)(3), was based on Pub. L. 111–23, title I, §101(b)(1), May 22, 2009, 123 Stat. 1706; Pub. L. 114–92, div. A, title X, §1077(a), Nov. 25, 2015, 129 Stat. 998; Pub. L. 114–328, div. A, title VIII, §842(a)(3), Dec. 23, 2016, 130 Stat. 2288.

Prior Provisions

A prior section 3221, act Aug. 10, 1956, ch. 1041, 70A Stat. 176, related to authorized strength of Army Reserve, prior to repeal by Pub. L. 103–337, div. A, title XVI, §§1662(a)(3), 1691, Oct. 5, 1994, 108 Stat. 2988, 3026, effective Dec. 1, 1994. See section 12001 of this title.

Amendments

2024—Subsec. (b)(6)(A)(i). Pub. L. 118–159, §806(b)(2), struck out "4251 or" before "4252 of this title".

Subsec. (b)(6)(A)(iv), (v). Pub. L. 118–159, §1701(a)(35), redesignated cl. (v) as (iv) and struck out former cl. (iv) which read as follows: "any report under section 2445c(f) of this title; and".

2022—Subsec. (b)(6)(A)(v). Pub. L. 117–263 added cl. (v).

2021—Subsec. (a). Pub. L. 116–283, §1812(b)(1), transferred subsec. (a) of section 2334 of this title to this section.

Subsec. (b). Pub. L. 116–283, §1812(b)(1), (2)(A), designated second sentence of subsec. (a) as (b), inserted heading, and substituted "In carrying out the responsibility of the Director under subsection (a)," for "In carrying out that responsibility," in introductory provisions.

Subsec. (b)(2). Pub. L. 117–81, §1701(d)(5), in introductory provisions, substituted "chapters 321, 324, and 325, subchapter I of chapter 322, and sections 3042, 4232, 4273, 4293, 4321, 4323, and 4328" for "chapter 144".

Pub. L. 116–283, §1812(b)(2)(B), struck out "provide guidance to and consult with the Secretary of Defense, the Under Secretary of Defense for Acquisition and Sustainment, the Under Secretary of Defense (Comptroller), the Secretaries of the military departments, and the heads of the Defense Agencies" before "with respect to cost estimation" and substituted "of this title, provide guidance to and consult with—" and subpars. (A) to (E) for "of this title;".

Subsec. (b)(6)(A)(i). Pub. L. 116–283, §1812(b)(2)(C)(i), substituted "section 4251 or 4252" for "section 2366a or 2366b".

Subsec. (b)(6)(A)(iii). Pub. L. 116–283, §1812(b)(2)(C)(ii), substituted "section 4376" for "section 2433a".

Subsec. (b)(8). Pub. L. 116–283, §1812(b)(2)(D), as amended by Pub. L. 117–81, §1701(o)(6)(A)(i), substituted "section 4351(c)(1)" for "section 2432(c)(1)".

Subsec. (c). Pub. L. 117–81, §1701(c)(1), substituted "under this chapter" for "under this section".

Pub. L. 116–283, §1812(b)(3), redesignated subsec. (h) of section 2334 of this title as subsec. (c) of this section.

Statutory Notes and Related Subsidiaries

Effective Date of 2022 Amendment

Amendment by Pub. L. 117–263 applicable to contracts entered into on or after Dec. 23, 2022, see section 2806(c) of Pub. L. 117–263, set out as a note under section 2851 of this title.

Effective Date of 2021 Amendment

Amendment by section 1701(c)(1), (d)(5) of Pub. L. 117–81 to take effect immediately after the amendments made by title XVIII of Pub. L. 116–283 have taken effect, see section 1701(a)(3) of Pub. L. 117–81, set out in a note preceding section 3001 of this title and Effective Date note below.

Amendment by section 1701(o)(6)(A)(i) of Pub. L. 117–81 applicable as if included in the enactment of title XVIII of Pub. L. 116–283 as enacted, see section 1701(a)(2) of Pub. L. 117–81, set out in a note preceding section 3001 of this title and Effective Date note below.

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.

§3222. Independent cost estimate required before approval

(a) Requirement.— A milestone decision authority may not approve entering the engineering and manufacturing development phase, or production and deployment phase, of a major defense acquisition program or major subprogram unless an independent cost estimate has been conducted or approved by the Director of Cost Assessment and Program Evaluation and considered by the milestone decision authority that includes a cost estimate of the full life-cycle cost of the program or subprogram.

(b) Regulations.—The regulations governing the content and submission of independent cost estimates required by section 3221 of this title shall require that the independent cost estimate of the full life-cycle cost of a program or subprogram include—

(1) all costs of development, procurement, military construction, operations and support, and trained manpower to operate, maintain, and support the program or subprogram upon full operational deployment, without regard to funding source or management control; and

(2) an analysis to support decisionmaking that identifies and evaluates alternative courses of action that may reduce cost and risk, and result in more affordable programs and less costly systems.

(Added and amended Pub. L. 116–283, div. A, title XVIII, §1812(a), (c), Jan. 1, 2021, 134 Stat. 4174, 4175; Pub. L. 118–159, div. A, title VIII, §806(b)(3), Dec. 23, 2024, 138 Stat. 1974.)

Editorial Notes

Codification

The text of subsec. (b) of section 2334 of this title, which was transferred to this section and amended by Pub. L. 116–283, §1812(c), was based on Pub. L. 114–328, div. A, title VIII, §842(a)(4), Dec. 23, 2016, 130 Stat. 2288.

Prior Provisions

A prior section 3222, act Aug. 10, 1956, ch. 1041, 70A Stat. 176; Pub. L. 96–513, title V, §502(7), Dec. 12, 1980, 94 Stat. 2909, related to authorized strength of Army Reserve, exclusive of members on active duty, prior to repeal by Pub. L. 103–337, div. A, title XVI, §§1662(a)(3), 1691, Oct. 5, 1994, 108 Stat. 2988, 3026, effective Dec. 1, 1994. See section 12002(a) of this title.

Amendments

2024—Subsec. (a). Pub. L. 118–159, §806(b)(3)(B), which directed substitution of "authority that includes a cost estimate" for "authority that—" in introductory provisions, par. (1), and "(2) for the for the engineering and manufacturing development phase, or production and deployment phase, includes a cost estimate", was executed by making the substition for "authority that—" in introductory provisions, par. (1), and "(2) for the engineering and manufacturing development phase, or production and deployment phase, includes a cost estimate", to reflect the probable intent of Congress.

Pub. L. 118–159, §806(b)(3)(A), substituted "the engineering and manufacturing development phase, or production and deployment phase," for "a milestone phase" in introductory provisions.

2021—Subsec. (a). Pub. L. 116–283, §1812(c)(1), (2)(A), (D), redesignated subsec. (b) of section 2334 of this title as subsec. (a) of this section, substituted "Requirement" for "Independent Cost Estimate Required Before Approval" in heading, struck out par. (1) designation before "A milestone", and redesignated subpars. (A) and (B) as pars. (1) and (2), respectively.

Subsec. (b). Pub. L. 116–283, §1812(c)(2)(B)–(D), redesignated subsec. (a)(2) as (b), inserted heading, substituted "section 3221 of this title" for "subsection (a)" in introductory provisions, and redesignated subpars. (A) and (B) as pars. (1) and (2), respectively.

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.

§3223. Director: review of cost estimates, cost analyses, and records of the military departments and Defense Agencies

The Secretary of Defense shall ensure that the Director of Cost Assessment and Program Evaluation—

(1) promptly receives the results of all cost estimates and cost analyses conducted by the military departments and Defense Agencies, and all studies conducted by the military departments and Defense Agencies in connection with such cost estimates and cost analyses, for major defense acquisition programs and major subprograms of the military departments and Defense Agencies; and

(2) has timely access to any records and data in the Department of Defense (including the records and data of each military department and Defense Agency and including classified and proprietary information) that the Director considers necessary to review in order to carry out any duties under this chapter.

(Added and amended Pub. L. 116–283, div. A, title XVIII, §1812(a), (d), Jan. 1, 2021, 134 Stat. 4174, 4175; Pub. L. 117–81, div. A, title XVII, §1701(c)(2), Dec. 27, 2021, 135 Stat. 2136.)

Editorial Notes

Codification

The text of subsec. (c) of section 2334 of this title, which was transferred to this section and amended by Pub. L. 116–283, §1812(d), was based on Pub. L. 111–23, title I, §101(b)(1), May 22, 2009, 123 Stat. 1706; Pub. L. 114–328, div. A, title VIII, §842(a)(3), (b)(2), Dec. 23, 2016, 130 Stat. 2288, 2289.

Prior Provisions

A prior section 3223, act Aug. 10, 1956, ch. 1041, 70A Stat. 176, related to authorized strength of Army Reserve in warrant officers, prior to repeal by Pub. L. 103–337, div. A, title XVI, §§1662(a)(3), 1691, Oct. 5, 1994, 108 Stat. 2988, 3026, effective Dec. 1, 1994. See section 12008 of this title.

Amendments

2021—Pub. L. 116–283, §1812(d), transferred subsec. (c) of section 2334 of this title to this section and struck out subsec. (c) designation and heading "Review of Cost Estimates, Cost Analyses, and Records of the Military Departments and Defense Agencies" at beginning.

Par. (2). Pub. L. 117–81 substituted "under this chapter" for "under this section".

Statutory Notes and Related Subsidiaries

Effective Date of 2021 Amendment

Amendment by Pub. L. 117–81 to take effect immediately after the amendments made by title XVIII of Pub. L. 116–283 have taken effect, see section 1701(a)(3) of Pub. L. 117–81, set out in a note preceding section 3001 of this title and Effective Date note below.

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.

§3224. Director: participation, concurrence, and approval in cost estimation

The Director of Cost Assessment and Program Evaluation may—

(1) participate in the discussion of any discrepancies between an independent cost estimate and the cost estimate of a military department or Defense Agency for a major defense acquisition program or major subprogram of the Department of Defense;

(2) comment on deficiencies in the methodology or execution of any cost estimate or cost analysis developed by a military department or Defense Agency for a major defense acquisition program or major subprogram;

(3) concur in the choice of a cost estimate within the baseline description or any other cost estimate (including the discussion of risk for any such cost estimate) for use at any event specified in section 3221(b)(6) of this title; and

(4) participate in the consideration of any decision to request authorization of a multiyear procurement contract for a major defense acquisition program or major subprogram.

(Added and amended Pub. L. 116–283, div. A, title XVIII, §1812(a), (e), Jan. 1, 2021, 134 Stat. 4174, 4175.)

Editorial Notes

Codification

The text of subsec. (d) of section 2334 of this title, which was transferred to this section and amended by Pub. L. 116–283, §1812(e), was based on Pub. L. 111–23, title I, §101(b)(1), May 22, 2009, 123 Stat. 1706; Pub. L. 114–328, div. A, title VIII, §842(a)(3), (5), (b)(3), (4), Dec. 23, 2016, 130 Stat. 2288–2290.

Prior Provisions

A prior section 3224, act Aug. 10, 1956, ch. 1041, 70A Stat. 177, related to authorized strength of Army National Guard of United States, prior to repeal by Pub. L. 103–337, div. A, title XVI, §§1662(a)(3), 1691, Oct. 5, 1994, 108 Stat. 2988, 3026, effective Dec. 1, 1994. See section 12001 of this title.

Amendments

2021—Pub. L. 116–283, §1812(e)(1), (2)(A), transferred subsec. (d) of section 2334 of this title to this section and struck out subsec. (d) designation and heading "Participation, Concurrence, and Approval in Cost Estimation" at beginning.

Par. (3). Pub. L. 116–283, §1812(e)(2)(B), substituted "section 3221(b)(6) of this title" for "subsection (a)(6)".

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.

§3225. Discussion of risk in cost estimates

The Director of Cost Assessment and Program Evaluation, and the Secretary of the military department concerned or the head of the Defense Agency concerned (as applicable), shall each—

(1) issue guidance requiring a discussion of risk, the potential impacts of risk on program costs, and approaches to mitigate risk in cost estimates for major defense acquisition programs and major subprograms;

(2) ensure that cost estimates are developed, to the extent practicable, based on historical actual cost information that is based on demonstrated contractor and Government performance and that such estimates provide a high degree of confidence that the program or subprogram can be completed without the need for significant adjustment to program budgets; and

(3) include the information required in the guidance under paragraph (1)—

(A) in any decision documentation approving a cost estimate within the baseline description or any other cost estimate for use at any event specified in section 3221(b)(6) of this title; and

(B) in the next Selected Acquisition Report pursuant to section 4351 of this title in the case of a major defense acquisition program or major subprogram.

(Added and amended Pub. L. 116–283, div. A, title XVIII, §1812(a), (f), Jan. 1, 2021, 134 Stat. 4174, 4176; Pub. L. 117–81, div. A, title XVII, §1701(o)(6)(A)(ii), Dec. 27, 2021, 135 Stat. 2147; Pub. L. 118–159, div. A, title XVII, §1701(a)(36), Dec. 23, 2024, 138 Stat. 2205.)

Editorial Notes

Codification

The text of subsec. (e) of section 2334 of this title, which was transferred to this section and amended by Pub. L. 116–283, §1812(f), was based on Pub. L. 111–23, title I, §101(b)(1), May 22, 2009, 123 Stat. 1706; Pub. L. 111–383, div. A, title VIII, §811(1), Jan. 7, 2011, 124 Stat. 4263; Pub. L. 114–328, div. A, title VIII, §842(a)(3), (6), (b)(5), Dec. 23, 2016, 130 Stat. 2288–2290.

Prior Provisions

A prior section 3225, act Aug. 10, 1956, ch. 1041, 70A Stat. 177; Pub. L. 96–513, title V, §502(7), Dec. 12, 1980, 94 Stat. 2909; Pub. L. 100–456, div. A, title XII, §1234(a)(1), Sept. 29, 1988, 102 Stat. 2059, related to authorized strength of Army National Guard and Army National Guard of United States, exclusive of members on active duty, prior to repeal by Pub. L. 103–337, div. A, title XVI, §§1662(a)(3), 1691, Oct. 5, 1994, 108 Stat. 2988, 3026, effective Dec. 1, 1994. See section 12002 of this title.

Amendments

2024—Par. (3)(B). Pub. L. 118–159 struck out ", or the next quarterly report pursuant to section 2445c of this title in the case of a major automated information system program" before period at end.

2021—Pub. L. 116–283, §1812(f)(1), (2)(A), transferred subsec. (e) of section 2334 of this title to this section and struck out subsec. (e) designation and heading "Discussion of Risk in Cost Estimates" at beginning.

Par. (3)(A). Pub. L. 116–283, §1812(f)(2)(B), substituted "section 3221(b)(6) of this title" for "subsection (a)(6)".

Par. (3)(B). Pub. L. 116–283, §1812(f)(2)(C), as amended by Pub. L. 117–81, §1701(o)(6)(A)(ii), substituted "section 4351" for "section 2432".

Statutory Notes and Related Subsidiaries

Effective Date of 2021 Amendment

Amendment by Pub. L. 117–81 applicable as if included in the enactment of title XVIII of Pub. L. 116–283 as enacted, see section 1701(a)(2) of Pub. L. 117–81, set out in a note preceding section 3001 of this title and Effective Date note below.

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.

§3226. Estimates for program baseline and analyses and targets for contract negotiation purposes

(a) Cost Estimates Developed for Specified Purposes Not to Be Used for Contract Negotiations or Obligation of Funds.—The policies, procedures, and guidance issued by the Director of Cost Assessment and Program Evaluation in accordance with the requirements of section 3221 of this title shall provide that cost estimates developed for baseline descriptions and other program purposes conducted pursuant to subsection (b)(6) of such section are not to be used for the purpose of contract negotiations or the obligation of funds.

(b) Cost Estimates Developed for Specified Purposes Not to Be Used for Contract Negotiations or Obligation of Funds.—The Under Secretary of Defense for Acquisition and Sustainment shall, in consultation with the Director of Cost Assessment and Program Evaluation, develop policies, procedures, and guidance to ensure that cost analyses and targets developed for the purpose of contract negotiations and the obligation of funds are based on the Government's reasonable expectation of successful contractor performance in accordance with the contractor's proposal and previous experience.

(c) Program Manager and Contracting Officer.—The program manager and contracting officer for each major defense acquisition program and major subprogram shall ensure that cost analyses and targets developed for the purpose of contract negotiations and the obligation of funds are carried out in accordance with the requirements of subsection (a) and the policies, procedures, and guidance issued by the Under Secretary of Defense for Acquisition and Sustainment under subsection (b).

(d) Availability of Excess Funds.—

(1) Funds that are made available for a major defense acquisition program or major subprogram in accordance with a cost estimate conducted pursuant to section 3221(b)(6) of this title, but are excess to a cost analysis or target developed pursuant to subsection (b), shall remain available for obligation in accordance with the terms of applicable authorization and appropriations Acts.

(2) Funds described in paragraph (1)—

(A) may be used—

(i) to cover any increased program costs identified by a revised cost analysis or target developed pursuant to subsection (b);

(ii) to acquire additional end items in accordance with the requirements of section 3069 of this title; or

(iii) to cover the cost of risk reduction and process improvements; and

(B) may be reprogrammed, in accordance with established procedures, only if determined to be excess to program needs on the basis of a cost estimate developed with the concurrence of the Director of Cost Assessment and Program Evaluation.

(Added and amended Pub. L. 116–283, div. A, title XVIII, §1812(a), (g), Jan. 1, 2021, 134 Stat. 4174, 4176.)

Editorial Notes

Codification

The text of subsec. (f) of section 2334 of this title, which was transferred to this section and amended by Pub. L. 116–283, §1812(g), was based on Pub. L. 111–383, div. A, title VIII, §811(3), Jan. 7, 2011, 124 Stat. 4263; Pub. L. 112–81, div. A, title VIII, §833, Dec. 31, 2011, 125 Stat. 1506; Pub. L. 114–328, div. A, title VIII, §842(a)(3), (b)(3), (6), Dec. 23, 2016, 130 Stat. 2288–2290; Pub. L. 116–92, div. A, title IX, §902(53), Dec. 20, 2019, 133 Stat. 1549.

Amendments

2021—Subsec. (a). Pub. L. 116–283, §1812(g)(1), (2)(A), (B), redesignated subsec. (f) of section 2334 of this title as subsec. (a) of this section, substituted "Cost Estimates Developed for Specified Purposes Not to Be Used for Contract Negotiations or Obligation of Funds" for "Estimates for Program Baseline and Analyses and Targets for Contract Negotiation Purposes" in heading, struck out par. (1) designation before "The policies,", and substituted "section 3221 of this title" for "subsection (a)" and "subsection (b)(6) of such section" for "subsection (a)(6)". Pars. (2), (3), (4), and (5) of subsec. (a) redesignated subsecs. (b), (c), (d)(1), and (d)(2), respectively.

Subsec. (b). Pub. L. 116–283, §1812(g)(2)(C), redesignated subsec. (a)(2) as (b) and inserted heading.

Subsec. (c). Pub. L. 116–283, §1812(g)(2)(D), redesignated subsec. (a)(3) as (c), inserted heading, and substituted "The program manager" for "The Program Manager", "subsection (a)" for "paragraph (1)", and "subsection (b)" for "paragraph (2)".

Subsec. (d). Pub. L. 116–283, §1812(g)(2)(E)(i), (iii), redesignated subsec. (a)(4) and (5) as (d)(1) and (2), respectively, inserted subsec. heading, and realigned margin of par. (2).

Subsec. (d)(1). Pub. L. 116–283, §1812(g)(2)(E)(ii), substituted "section 3221(b)(6) of this title" for "subsection (a)(6)" and "subsection (b)" for "paragraph (2)".

Subsec. (d)(2). Pub. L. 116–283, §1812(g)(2)(E)(iv), substituted "paragraph (1)" for "paragraph (4)" in introductory provisions, "subsection (b)" for "paragraph (2)" in subpar. (A)(i), and "section 3069" for "section 2308" in subpar. (A)(ii).

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.

§3227. Guidelines and collection method for acquisition of cost data

(a) Director of Cape to Develop Guidelines and Collection Method.—The Director of Cost Assessment and Program Evaluation shall, in consultation with the Under Secretary of Defense for Acquisition and Sustainment, develop policies, procedures, guidance, and a collection method to ensure that quality acquisition cost data are collected to facilitate cost estimation and comparison across acquisition programs.

(b) Applicability to Acquisition Programs in Amount Greater Than Specified Threshold.—The program manager and contracting officer for each acquisition program in an amount greater than an amount described in section 3041(c)(1) of this title, in consultation with the cost estimating component of the relevant military department or Defense Agency, shall ensure that cost data are collected in accordance with the requirements of subsection (a).

(c) Limitation on Waiver Authority.—The requirement under subsection (a) may be waived only by the Director of Cost Assessment and Program Evaluation.

(Added and amended Pub. L. 116–283, div. A, title XVIII, §1812(a), (h), Jan. 1, 2021, 134 Stat. 4174, 4177; Pub. L. 118–159, div. A, title VIII, §801, Dec. 23, 2024, 138 Stat. 1965.)

Editorial Notes

Codification

The text of subsec. (g) of section 2334 of this title, which was transferred to this section and amended by Pub. L. 116–283, §1812(h), was based on Pub. L. 114–328, div. A, title VIII, §842(a)(7), Dec. 23, 2016, 130 Stat. 2289; Pub. L. 116–92, div. A, title IX, §902(53), Dec. 20, 2019, 133 Stat. 1549.

Prior Provisions

A prior section 3230, added Pub. L. 85–861, §1(69)(B), Sept. 2, 1958, 72 Stat. 1464, provided that members of Army who are detailed for duty with agencies of United States outside Department of Defense on a reimbursable basis not be counted in computing strengths under any law, prior to repeal by Pub. L. 96–513, title II, §202, title VII, §701, Dec. 12, 1980, 94 Stat. 2878, 2955, effective Sept. 15, 1981.

Amendments

2024—Subsec. (b). Pub. L. 118–159 substituted "an amount described in section 3041(c)(1) of this title" for "$100,000,000".

2021—Subsec. (a). Pub. L. 116–283, §1812(h)(1), (2)(A), redesignated subsec. (g) of section 2334 of this title as subsec. (a) of this section, substituted "Director of Cape to Develop Guidelines and Collection Method" for "Guidelines and Collection of Cost Data" in heading, and struck out par. (1) designation before "The Director". Amendment striking heading was executed to reflect the probable intent of Congress notwithstanding error in formatting of text. Pars. (2) and (3) of subsec. (a) redesignated subsecs. (b) and (c), respectively.

Subsec. (b). Pub. L. 116–283, §1812(h)(2)(B), redesignated subsec. (a)(2) as (b), inserted heading, and substituted "subsection (a)" for "paragraph (1)".

Subsec. (c). Pub. L. 116–283, §1812(h)(2)(C), redesignated subsec. (a)(3) as (c), inserted heading, and substituted "subsection (a)" for "paragraph (1)".

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.

CHAPTER 223—OTHER PROVISIONS RELATING TO PLANNING AND SOLICITATION GENERALLY

        

Editorial Notes

Prior Provisions

A prior chapter 223 "PLANNING AND SOLICITATION RELATING TO PARTICULAR ITEMS OR SERVICES", as added by Pub. L. 115–232, div. A, title VIII, §801(a), Aug. 13, 2018, 132 Stat. 1827, and consisting of reserved section 3251, was repealed by Pub. L. 116–283, div. A, title XVIII, §1811(b), Jan. 1, 2021, 134 Stat. 4164.

Amendments

2021—Pub. L. 117–81, div. A, title XVII, §1701(f)(4), Dec. 27, 2021, 135 Stat. 2139, added "[Reserved]" for item 3248 and struck out former item 3248 "Matters relating to reverse auctions".

Statutory Notes and Related Subsidiaries

Supply Chain Illumination Incentives

Pub. L. 118–159, div. A, title VIII, §849, Dec. 23, 2024, 138 Stat. 1994, provided that:

"(a) In General.—Not later than April 1, 2026, the Secretary of Defense shall develop and implement policies, procedures, and tools to incentivize each contractor of the Department of Defense to assess and monitor the entire supply chain of goods and services provided to the Department by such contractor to identify potential vulnerabilities and noncompliance risks with respect to such goods and services.

"(b) Briefing.—Not later than September 30, 2025, the Secretary of Defense shall provide to the Committees on Armed Services of the Senate and House of Representatives a briefing on the development and implementation of the policies, procedures, and tools under subsection (a), including information on obstacles to developing and implementing such policies, if any, and additional authorities or resources required to develop and implement such policies."

Pilot Program To Analyze and Monitor Certain Supply Chains

Pub. L. 118–31, div. A, title VIII, §856, Dec. 22, 2023, 137 Stat. 345, provided that:

"(a) In General.—Not later than 90 days after the date of the enactment of this Act [Dec. 22, 2023], the Under Secretary of Defense for Acquisition and Sustainment shall establish and carry out a pilot program to analyze, map, and monitor supply chains for up to five covered weapons platforms, under which the Under Secretary shall—

"(1) identify impediments to production and opportunities to expand the production of components of such a covered weapons platform;

"(2) identify potential risks to and vulnerabilities of suppliers for such covered weapons platforms and ways to mitigate such risks; and

"(3) identify critical suppliers for such covered weapons platforms.

"(b) Use of Tools.—The Under Secretary may use a combination of commercial tools and tools available to the Department of Defense to carry out the program established under this section, including artificial intelligence and machine learning tools to improve data analysis capabilities for such supply chains.

"(c) Annual Reports.—Not later than one year after the date of the enactment of this Act, and annually thereafter until the date specified in subsection (d), the Under Secretary shall submit to the congressional defense committees [Committees on Armed Services and Appropriations of the Senate and the House of Representatives] a report containing—

"(1) a list of the vulnerabilities of the supply chains for each covered weapons platform selected under subsection (a), categorized by severity of threat or risk to deployment of such a platform;

"(2) for each vulnerability, a description of such vulnerability, whether such vulnerability has been resolved, and, if resolved, the time from identification to resolution; and

"(3) an assessment of any efficiencies achieved by addressing impediments to the supply chain.

"(d) Termination.—The authority to carry out the pilot program under this section shall terminate on January 1, 2028.

"(e) Covered Weapons Platform Defined.—In this section, the term 'covered weapons platform' means any weapons platform identified in the reports submitted under section 1251(d)(1) of the William M. (Mac) Thornberry National Defense Authorization Act for Fiscal Year 2021 [Pub. L. 116–283] (10 U.S.C. 113 note)."

Pilot Program Relating to Semiconductor Supply Chain and Cybersecurity Collaboration Center

Pub. L. 118–31, div. A, title XV, §1513, Dec. 22, 2023, 137 Stat. 543, provided that:

"(a) Establishment.—Not later than 90 days after the date of the enactment of this Act [Dec. 22, 2023], the Secretary of Defense, in coordination with the Director of the National Security Agency, shall commence the conduct of a pilot program under which the Cybersecurity Collaboration Center of the National Security Agency may collaborate with, including by entering into contracts or other agreements with, eligible persons under subsection (c), for the purpose of assessing the feasibility and advisability of improving the cybersecurity of the semiconductor supply chain (in this section referred to as the 'pilot program').

"(b) Program Objectives.—Under the pilot program, the Secretary of Defense shall seek to improve the cybersecurity of the supply chain for the design, manufacturing, assembly, packaging, and testing of semiconductors, including through the following:

"(1) Improving the cybersecurity of processes for such design, manufacturing, assembly, packaging, and testing.

"(2) Protecting against cyber-driven intellectual property theft with respect to such design, manufacturing, assembly, packaging, and testing.

"(3) Reducing the risk of disruptions caused by cyberattacks to the supply chain for such design, manufacturing, assembly, packaging, and testing.

"(c) Eligibility.—A person is eligible to participate in the pilot program if such person—

"(1) directly supports the design, manufacturing, assembly, packaging, or testing of semiconductors within the United States; and

"(2) provides semiconductor components for the Department of Defense, any national security system (as such term is defined in section 3552(b) of title 44, United States Code), or the defense industrial base.

"(d) Briefings.—

"(1) Initial briefing.—

"(A) In general.—Not later than one year after the date of the enactment of this Act, the Secretary of Defense shall provide to the appropriate congressional committees an initial briefing on the pilot program.

"(B) Elements.—The briefing under subparagraph (A) shall include the following:

"(i) A description of the status of the implementation of the pilot program.

"(ii) An identification of key priorities for the pilot program.

"(iii) An identification of any challenges to implementing the pilot program or impediments to participation in the pilot program by eligible persons under subsection (c).

"(2) Annual briefings.—

"(A) In general.—Not later than one year after the date of the initial briefing under paragraph (1), and annually thereafter until the date of termination under subsection (f), the Secretary of Defense shall provide to the appropriate congressional committees a briefing on the progress of the pilot program.

"(B) Elements.—Each briefing under subparagraph (A) shall include the following:

"(i) Recommendations for addressing relevant policy, budgetary, security, and legislative gaps to increase the effectiveness of the pilot program, including, with respect to the first briefing under such subparagraph, an assessment of the resources necessary for successful implementation of the pilot program.

"(ii) Recommendations for increasing participation in the pilot program by eligible persons under subsection (c).

"(iii) A description of any challenges encountered in carrying out the pilot program, including any concerns expressed by manufacturers of semiconductors or suppliers of semiconductor components.

"(iv) The findings of the Secretary, in consultation with the Director of the National Security Agency, with respect to the feasibility and advisability of extending or expanding the pilot program.

"(v) Such other matters as the Secretary considers appropriate.

"(e) Termination.—The pilot program shall terminate on the date that is four years after the date of the enactment of this Act [Dec. 22, 2023].

"(f) Appropriate Congressional Committees Defined.—In this section, the term 'appropriate congressional committees' means—

"(1) the Committee on Armed Services and the Permanent Select Committee on Intelligence of the House of Representatives; and

"(2) the Committee on Armed Services and the Select Committee on Intelligence of the Senate."

Quantifiable Assurance Capability for Security of Microelectronics

Pub. L. 117–263, div. A, title II, §219, Dec. 23, 2022, 136 Stat. 2477, provided that:

"(a) Development and Implementation of Capability.—The Secretary of Defense shall develop and implement a capability for quantifiable assurance to achieve practical, affordable, and risk-based objectives for security of microelectronics to enable the Department of Defense to access and apply state-of-the-art microelectronics for military purposes.

"(b) Establishment of Requirements and Schedule of Support for Development, Test, and Assessment.—

"(1) In general.—Not later than 90 days after the date of the enactment of this Act [Dec. 23, 2022], the Deputy Secretary of Defense shall, in consultation with the Under Secretary of Defense for Research and Engineering, establish requirements and a schedule for support from the National Security Agency to develop, test, assess, implement, and improve the capability required by subsection (a).

"(2) National security agency.—The Director of the National Security Agency shall take such actions as may be necessary to satisfy the requirements established under paragraph (1).

"(3) Briefing.—Not later than 120 days after the date of the enactment of this Act, the Under Secretary of Defense for Research and Engineering and the Director of the National Security Agency shall jointly provide the congressional defense committees [Committees on Armed Services and Appropriations of the Senate and the House of Representatives] a briefing on the requirements and the schedule for support established under paragraph (1).

"(c) Assessment.—

"(1) In general.—The Secretary of Defense shall assess whether the Department of Defense, to enable expanded use of unprogrammed application specific integrated circuits or other custom-designed integrated circuits manufactured by a supplier that is not using processes accredited by the Defense Microelectronics Activity for the purpose of enabling the Department to access commercial state-of-the-art microelectronics technology using risk-based quantifiable assurance security methodology, should—

"(A) seek changes to the International Traffic in Arms Regulations under subchapter M of chapter I of title 22, Code of Federal Regulations, and Department of Defense Instruction 5200.44 (relating to protection of mission critical functions to achieve trusted systems and networks); and

"(B) expand the use of unprogrammed custom-designed integrated circuits that are not controlled by such regulations.

"(2) Briefing.—Not later than April 1, 2023, the Secretary of Defense shall provide the congressional defense committees a briefing on the findings of the Secretary with respect to the assessment conducted under paragraph (1)."

Government-Industry-Academia Working Group on Microelectronics

Pub. L. 117–263, div. A, title II, §220, Dec. 23, 2022, 136 Stat. 2478, provided that:

"(a) Establishment and Designation.—

"(1) In general.—Not later than 180 days after the date of the enactment of this Act [Dec. 23, 2022], the Secretary of Defense shall establish a working group to facilitate coordination among industry, academia, and the Department of Defense on issues of mutual interest relating to microelectronics as described in subsection (c).

"(2) Designation.—The working group established under paragraph (1) shall be known as the 'Government-Industry-Academia Working Group on Microelectronics' (referred to in this section as the 'Working Group').

"(b) Composition.—The Working Group shall be composed of representatives of organizations and elements of the Department of Defense, industry, and academia.

"(c) Scope.—The Secretary shall ensure that the Working Group supports dialogue and coordination among industry, academia, and the Department of Defense on the following issues relating to microelectronics:

"(1) Research needs.

"(2) Infrastructure needs and shortfalls.

"(3) Technical and process standards.

"(4) Training and certification needs for the workforce.

"(5) Supply chain issues.

"(6) Supply chain, manufacturing, and packaging security.

"(7) Technology transition issues and opportunities.

"(d) Charter and Policies.—Not later than March 1, 2023, the Secretary of Defense shall develop a charter and issue policies for the functioning of the Working Group.

"(e) Administrative Support.—The joint federation of capabilities established under section 937 of the National Defense Authorization Act for Fiscal Year 2014 (Public Law 113–66; 10 U.S.C. 2224 note) shall provide administrative support to the Working Group.

"(f) Rule of Construction.—Nothing in this section shall be construed to allow the Department of Defense to provide any competitive advantage to any participant in the Working Group.

"(g) Sunset.—The provisions of this section shall terminate on December 31, 2030."

Risk Management for Department of Defense Pharmaceutical Supply Chains

Pub. L. 118–159, div. A, title VIII, §850, Dec. 23, 2024, 138 Stat. 1994, provided that:

"(a) In General.—Not later than two years after the date of the enactment of this Act [Dec. 23, 2024], the Under Secretary of Defense for Acquisition and Sustainment shall—

"(1) submit to the Committees on Armed Services of the Senate and the House of Representatives a report on—

"(A) existing information streams within the Federal Government, if any, for excipients and key starting materials for final drug products that may be used to assess the reliance by the Department of Defense on high-risk foreign suppliers analyzed in the report required under section 860(a) of the National Defense Authorization Act for Fiscal Year 2023 (Public Law 117–263; 136 Stat. 2734; 10 U.S.C. 3241 note prec.) [set out below];

"(B) active pharmaceutical ingredients, final drug products, and respective excipients and key starting materials analyzed in such report that are manufactured in a high-risk foreign country, as determined by the Secretary of Defense;

"(C) any limitations on the ability of the Secretary to—

"(i) obtain or analyze the information identified under subparagraphs (A) and (B);

"(ii) monitor the temperature of active pharmaceutical ingredients, final drug products, and respective excipients and key starting materials throughout the supply chain of the Department; and

"(iii) use data analytics to monitor vulnerabilities in the pharmaceutical supply chain of the Department;

"(D) how the Secretary plans to address the limitations identified under subparagraph (C); and

"(E) any recommendations of the Secretary to address those limitations; and

"(2) update risk management guidance developed by the Under Secretary under section 860(a)(1) of the National Defense Authorization Act for Fiscal Year 2023 (Public Law 117–263; 10 U.S.C. 3241 note prec.) to include any relevant findings identified in paragraph (1).

"(b) FDA Determinations.—For the purposes of this section, the excipients and key starting materials for final drug products shall be such excipients and key starting materials as determined by the Food and Drug Administration or under regulations issued by the Food and Drug Administration."

Pub. L. 117–263, div. A, title VIII, §860, Dec. 23, 2022, 136 Stat. 2734, provided that:

"(a) Risk Management for All Department of Defense Pharmaceutical Supply Chains.—Not later than one year after the date of the enactment of this Act [Dec. 23, 2022], the Under Secretary of Defense for Acquisition and Sustainment shall—

"(1) develop and issue implementing guidance for risk management for Department of Defense supply chains for pharmaceutical materiel for the Department;

"(2) identify, in coordination with the Secretary of Health and Human Services, supply chain information gaps regarding the Department's reliance on foreign suppliers of drugs, including active pharmaceutical ingredients and final drug products; and

"(3) submit to the Committees on Armed Services of the Senate and the House of Representatives a report regarding—

"(A) existing information streams, if any, that may be used to assess the reliance by the Department of Defense on high-risk foreign suppliers of drugs;

"(B) vulnerabilities in the drug supply chains of the Department of Defense; and

"(C) any recommendations to address—

"(i) information gaps identified under paragraph (2); and

"(ii) any risks related to such reliance on foreign suppliers.

"(b) Risk Management for Department of Defense Pharmaceutical Supply Chain.—The Director of the Defense Health Agency shall—

"(1) not later than one year after the issuance of the guidance required under subsection (a)(1), develop and publish implementing guidance for risk management for the Department of Defense supply chain for pharmaceuticals; and

"(2) establish a working group—

"(A) to assess risks to the Department's pharmaceutical supply chain;

"(B) to identify the pharmaceuticals most critical to beneficiary care at military treatment facilities; and

"(C) to establish policies for allocating scarce pharmaceutical resources of the Department of Defense in case of a supply disruption."

Authority for Explosive Ordnance Disposal Units To Acquire New or Emerging Technologies and Capabilities

Pub. L. 115–91, div. A, title I, §142, Dec. 12, 2017, 131 Stat. 1320, provided that: "The Secretary of Defense, after consultation with the head of each military service, may provide to an explosive ordnance disposal unit the authority to acquire new or emerging technologies and capabilities that are not specifically provided for in the authorized equipment allowance for the unit, as such allowance is set forth in the table of equipment and table of allowance for the unit."

Annual Report on Military Working Dogs Used by the Department of Defense

Pub. L. 115–91, div. A, title III, §334, Dec. 12, 2017, 131 Stat. 1356, provided that:

"(a) Capacity.—The Secretary of Defense, acting through the Executive Agent for Military Working Dogs (hereinafter in this section referred to as the 'Executive Agent'), shall—

"(1) identify the number of military working dogs required to fulfill the various missions of the Department of Defense for which such dogs are used, including force protection, facility and check point security, and explosives and drug detection;

"(2) take such steps as are practicable to ensure an adequate number of military working dog teams are available to meet and sustain the mission requirements identified in paragraph (1);

"(3) ensure that the Department's needs and performance standards with respect to military working dogs are readily available to dog breeders and trainers; and

"(4) coordinate with other Federal, State, and local agencies, nonprofit organizations, universities, and private sector entities, as appropriate, to increase the training capacity for military working dog teams.

"(b) Military Working Dog Procurement.—The Secretary, acting through the Executive Agent, shall work to ensure that military working dogs are procured as efficiently as possible and at the best value to the Government, while maintaining the necessary level of quality and encouraging increased domestic breeding.

"(c) Annual Report.—Not later than 90 days after the date of the enactment of this Act [Dec. 12, 2017], and annually thereafter until September 30, 2021, the Secretary, acting through the Executive Agent, shall submit to the congressional defense committees [Committees on Armed Services and Appropriations of the Senate and the House of Representatives] a report on the procurement and retirement of military working dogs for the fiscal year preceding the fiscal year during which the report is submitted. Each report under this subsection shall include the following for the fiscal year covered by the report:

"(1) The number of military working dogs procured, by source, by each military department or Defense Agency.

"(2) The cost of procuring military working dogs incurred by each military department or Defense Agency.

"(3) The number of domestically-bred and sourced military working dogs procured by each military department or Defense Agency, including a list of vendors, their location, cost, and the quantity of dogs procured from each vendor.

"(4) The number of non-domestically-bred military working dogs procured from non-domestic sources by each military department or Defense Agency, including a list of vendors, their location, cost, and the quantity of dogs procured from each vendor.

"(5) The cost of procuring pre-trained and green dogs for force protection, facility and checkpoint security, and improvised explosive device, other explosives, and drug detection.

"(6) An analysis of the procurement practices of each military department or Defense Agency that limit market access for domestic canine vendors and breeders.

"(7) The total cost of procuring domestically-bred military working dogs versus the total cost of procuring dogs from non-domestic sources.

"(8) The total number of domestically-bred dogs and the number of dogs from foreign sources procured by each military department or Defense Agency and the number and percentage of those dogs that are ultimately deployed for their intended use.

"(9) An explanation for any significant difference in the cost of procuring military working dogs from different sources.

"(10) An estimate of the number of military working dogs expected to retire annually and an identification of the primary cause of the retirement of such dogs.

"(11) An identification of the final disposition of military working dogs no longer in service.

"(d) Military Working Dog Defined.—For purposes of this section, the term 'military working dog' means a dog used in any official military capacity, as defined by the Secretary of Defense."

[Similar provisions were contained in Pub. L. 110–417, [div. A], title III, §358, Oct. 14, 2008, 122 Stat. 4427, as amended by Pub. L. 111–84, div. A, title III, §341, Oct. 28, 2009, 123 Stat. 2260; Pub. L. 111–383, div. A, title X, §1075(e)(6), Jan. 7, 2011, 124 Stat. 4374; Pub. L. 112–81, div. A, title III, §349, Dec. 31, 2011, 125 Stat. 1375; Pub. L. 114–92, div. A, title X, §1073(h), Nov. 25, 2015, 129 Stat. 996.]

Strategy for Assured Access to Trusted Microelectronics

Pub. L. 114–328, div. A, title II, §231, Dec. 23, 2016, 130 Stat. 2059, as amended by Pub. L. 116–283, div. A, title II, §276, Jan. 1, 2021, 134 Stat. 3504, provided that:

"(a) Strategy.—The Secretary of Defense shall, in collaboration with the Under Secretary of Defense for Acquisition and Sustainment, the Under Secretary for Research and Engineering, and the Director of the Defense Advanced Research Projects Agency, develop a strategy to ensure that the Department of Defense has assured access to trusted microelectronics by not later than June 1, 2021.

"(b) Elements.—The strategy under subsection (a) shall include the following:

"(1) Definitions of the various levels of trust required by classes of Department of Defense systems.

"(2) Means of classifying systems of the Department of Defense based on the level of trust such systems are required to maintain with respect to microelectronics.

"(3) Means by which trust in microelectronics can be assured.

"(4) Means to increase the supplier base for assured microelectronics to ensure multiple supply pathways.

"(5) An assessment of the microelectronics needs of the Department of Defense in future years, including the need for trusted, radiation-hardened microelectronics.

"(6) An assessment of the microelectronic needs of the Department of Defense that may not be fulfilled by entities outside the Department of Defense.

"(7) The resources required to assure access to trusted microelectronics, including infrastructure, workforce, and investments in science and technology.

"(8) A research and development strategy to ensure that the Department of Defense can, to the maximum extent practicable, use state of the art commercial microelectronics capabilities or their equivalent, while satisfying the needs for trust.

"(9) Recommendations for changes in authorities, regulations, and practices, including acquisition policies, financial management, public-private partnership policies, or in any other relevant areas, that would support the achievement of the goals of the strategy.

"(10) An approach to ensuring the continuing production of cutting-edge microelectronics for national security needs, including access to state-of-the-art node sizes through commercial manufacturing, heterogeneous integration, advantaged sensor manufacturing, boutique chip designs, and variable volume production capabilities.

"(11) An assessment of current microelectronics supply chain management best practices, including—

"(A) intellectual property controls;

"(B) international standards;

"(C) guidelines of the National Institute of Standards and Technology;

"(D) product traceability and provenance; and

"(E) location of design, manufacturing, and packaging facilities.

"(12) An assessment of existing risks to the current microelectronics supply chain.

"(13) A description of actions that may be carried out by the defense industrial base to implement best practices described in paragraph (11) and mitigate risks described in paragraph (12).

"(14) A plan for increasing commercialization of intellectual property developed by the Department of Defense for commercial microelectronics research and development.

"(15) An assessment of the feasibility, usefulness, efficacy, and cost of—

"(A) developing a national laboratory exclusively focused on the research and development of microelectronics to serve as a center for Federal Government expertise in high-performing, trusted microelectronics and as a hub for Federal Government research into breakthrough microelectronics-related technologies; and

"(B) incorporating into such national laboratory a commercial incubator to provide early-stage microelectronics startups, which face difficulties scaling due to the high costs of microelectronics design and fabrication, with access to funding resources, fabrication facilities, design tools, and shared intellectual property.

"(16) The development of multiple models of public-private partnerships to execute the strategy, including in-depth analysis of establishing a semiconductor manufacturing corporation to leverage private sector technical, managerial, and investment expertise, and private capital, that would have the authority and funds to provide grants or approve investment tax credits, or both, to implement the strategy.

"(17) Processes and criteria for competitive selection of commercial companies, including companies headquartered in countries that are allies or partners with the United States, to provide design, foundry and assembly, and packaging services and to build and operate the industrial capabilities associated with such services.

"(18) The role that other Federal agencies should play in organizing and supporting the strategy, including any required direct or indirect funding support, or legislative and regulatory actions, including restricting procurement to domestic sources, and providing antitrust and export control relief.

"(19) All potential funding sources and mechanisms for initial and sustaining investments in microelectronics.

"(20) Such other matters as the Secretary of Defense determines to be relevant.

"(c) Submission and Updates.—(1) Not later than one year after the date of the enactment of this Act [Dec. 23, 2016], the Secretary shall submit to the congressional defense committees [Committees on Armed Services and Appropriations of the Senate and the House of Representatives] the strategy developed under subsection (a). The strategy shall be submitted in unclassified form, but may include a classified annex.

"(2) Not later than two years after submitting the strategy under paragraph (1) and not less frequently than once every two years thereafter until September 30, 2024, the Secretary shall update the strategy as the Secretary considers appropriate to support Department of Defense missions.

"(d) Directive Required.—Not later than June 1, 2021, the Secretary of Defense shall issue a directive for the Department of Defense describing how Department of Defense entities may access assured and trusted microelectronics supply chains for Department of Defense systems.

"(e) Report and Certification.—Not later than June 1, 2021, the Secretary of the Defense shall submit to the congressional defense committees—

"(1) a report on—

"(A) the status of the implementation of the strategy developed under subsection (a);

"(B) the actions being taken to achieve full implementation of such strategy, and a timeline for such implementation; and

"(C) the status of the implementation of the directive required by subsection (d); and

"(2) a certification of whether the Department of Defense has an assured means for accessing a sufficient supply of trusted microelectronics, as required by the strategy developed under subsection (a).

"(f) Submission.—Not later than June 1, 2021, the Secretary of Defense shall submit the strategy required in subsection (a), along with any views and recommendations and an estimated budget to implement the strategy, to the President, the National Security Council, and the National Economic Council.

"(g) Definitions.—In this section:

"(1) The term 'assured' refers, with respect to microelectronics, to the ability of the Department of Defense to guarantee availability of microelectronics parts at the necessary volumes and with the performance characteristics required to meet the needs of the Department of Defense.

"(2) The terms 'trust' and 'trusted' refer, with respect to microelectronics, to the ability of the Department of Defense to have confidence that the microelectronics function as intended and are free of exploitable vulnerabilities, either intentionally or unintentionally designed or inserted as part of the system at any time during its life cycle."

Use Of Lowest Price Technically Acceptable Source Selection Process

Pub. L. 114–328, div. A, title VIII, §813, Dec. 23, 2016, 130 Stat. 2270, as amended by Pub. L. 115–91, div. A, title VIII, §822(a), (b)(1), Dec. 12, 2017, 131 Stat. 1465; Pub. L. 116–92, div. A, title VIII, §806(a)(1), Dec. 20, 2019, 133 Stat. 1485, provided that:

"(a) Statement of Policy.—It shall be the policy of the Department of Defense to avoid using lowest price technically acceptable source selection criteria in circumstances that would deny the Department the benefits of cost and technical tradeoffs in the source selection process.

"(b) Revision of Defense Federal Acquisition Regulation Supplement.—Not later than 120 days after the date of the enactment of this Act [Dec. 23, 2016], the Secretary of Defense shall revise the Defense Federal Acquisition Regulation Supplement to require that, for solicitations issued on or after the date that is 120 days after the date of the enactment of this Act, lowest price technically acceptable source selection criteria are used only in situations in which—

"(1) the Department of Defense is able to comprehensively and clearly describe the minimum requirements expressed in terms of performance objectives, measures, and standards that will be used to determine acceptability of offers;

"(2) the Department of Defense would realize no, or minimal, value from a contract proposal exceeding the minimum technical or performance requirements set forth in the request for proposal;

"(3) the proposed technical approaches will require no, or minimal, subjective judgment by the source selection authority as to the desirability of one offeror's proposal versus a competing proposal;

"(4) the source selection authority has a high degree of confidence that a review of technical proposals of offerors other than the lowest bidder would not result in the identification of factors that could provide value or benefit to the Department;

"(5) the contracting officer has included a justification for the use of a lowest price technically acceptable evaluation methodology in the contract file;

"(6) the Department of Defense has determined that the lowest price reflects full life-cycle costs, including for operations and support;

"(7) the Department of Defense would realize no, or minimal, additional innovation or future technological advantage by using a different methodology; and

"(8) with respect to a contract for procurement of goods, the goods procured are predominantly expendable in nature, nontechnical, or have a short life expectancy or short shelf life.

"(c) Avoidance of Use of Lowest Price Technically Acceptable Source Selection Criteria in Certain Procurements.—To the maximum extent practicable, the use of lowest price technically acceptable source selection criteria shall be avoided in the case of a procurement that is predominately for the acquisition of—

"(1) information technology services, cybersecurity services, systems engineering and technical assistance services, advanced electronic testing, audit or audit readiness services, or other knowledge-based professional services;

"(2) personal protective equipment; or

"(3) knowledge-based training or logistics services in contingency operations or other operations outside the United States, including in Afghanistan or Iraq."

[Pub. L. 115–91, div. A, title VIII, §822(b)(2), Dec. 12, 2017, 131 Stat. 1465, provided that: "The amendment made by this subsection [amending section 813 of Pub. L. 114–328, set out above] shall apply with respect to the second, third, and fourth reports submitted under [former] subsection (d) of section 813 of the National Defense Authorization Act for Fiscal Year 2017 (Public Law 114–328; 130 Stat 2271; 10 U.S.C. 2305 note)."]

Use of Commercial or Non-Government Standards in Lieu of Military Specifications and Standards

Pub. L. 114–328, div. A, title VIII, §875, Dec. 23, 2016, 130 Stat. 2310, as amended by Pub. L. 116–92, div. A, title IX, §902(45), Dec. 20, 2019, 133 Stat. 1548, provided that:

"(a) In General.—The Secretary of Defense shall ensure that the Department of Defense uses commercial or non-Government specifications and standards in lieu of military specifications and standards, including for procuring new systems, major modifications, upgrades to current systems, non-developmental and commercial items, and programs in all acquisition categories, unless no practical alternative exists to meet user needs. If it is not practicable to use a commercial or non-Government standard, a Government-unique specification may be used.

"(b) Limited Use of Military Specifications.—

"(1) In general.—Military specifications shall be used in procurements only to define an exact design solution when there is no acceptable commercial or non-Government standard or when the use of a commercial or non-Government standard is not cost effective.

"(2) Waiver.—A waiver for the use of military specifications in accordance with paragraph (1) shall be approved by either the appropriate milestone decision authority, the appropriate service acquisition executive, or the Under Secretary of Defense for Acquisition and Sustainment.

"(c) Revision to DFARS.—Not later than 180 days after the date of the enactment of this Act [Dec. 23, 2016], the Under Secretary of Defense for Acquisition and Sustainment shall revise the Defense Federal Acquisition Regulation Supplement to encourage contractors to propose commercial or non-Government standards and industry-wide practices that meet the intent of the military specifications and standards.

"(d) Development of Non-government Standards.—The Under Secretary of Defense for Research and Engineering shall form partnerships with appropriate industry associations to develop commercial or non-Government standards for replacement of military specifications and standards where practicable.

"(e) Education, Training, and Guidance.—The Under Secretary of Defense for Acquisition and Sustainment shall ensure that training, education, and guidance programs throughout the Department are revised to incorporate specifications and standards reform.

"(f) Licenses.—The Under Secretary of Defense for Acquisition and Sustainment shall negotiate licenses for standards to be used across the Department of Defense and shall maintain an inventory of such licenses that is accessible to other Department of Defense organizations."

Requirement and Review Relating to Use of Brand Names or Brand-Name or Equivalent Descriptions in Solicitations

Pub. L. 114–328, div. A, title VIII, §888, Dec. 23, 2016, 130 Stat. 2322, as amended by Pub. L. 116–92, div. A, title IX, §902(46), Dec. 20, 2019, 133 Stat. 1548, provided that:

"(a) Requirement.—The Secretary of Defense shall ensure that competition in Department of Defense contracts is not limited through the use of specifying brand names or brand-name or equivalent descriptions, or proprietary specifications or standards, in solicitations unless a justification for such specification is provided and approved in accordance with section 2304(f) of title 10, United States Code [now 10 U.S.C. 3204(e)].

"(b) Review of Anti-competitive Specifications in Information Technology Acquisitions.—

"(1) Review required.—Not later than 180 days after the date of the enactment of this Act [Dec. 23, 2016], the Under Secretary of Defense for Acquisition and Sustainment shall conduct a review of the policy, guidance, regulations, and training related to specifications included in information technology acquisitions to ensure current policies eliminate the unjustified use of potentially anti-competitive specifications. In conducting the review, the Under Secretary shall examine the use of brand names or proprietary specifications or standards in solicitations for procurements of goods and services, as well as the current acquisition training curriculum related to those areas.

"(2) Briefing required.—Not later than 270 days after the date of the enactment of this Act, the Under Secretary shall provide a briefing to the Committees on Armed Services of the Senate and House of Representatives on the results of the review required by paragraph (1).

"(3) Additional guidance.—Not later than one year after the date of the enactment of this Act, the Under Secretary shall revise policies, guidance, and training to incorporate such recommendations as the Under Secretary considers appropriate from the review required by paragraph (1)."

Matters Relating to Reverse Auctions

Pub. L. 113–291, div. A, title VIII, §824, Dec. 19, 2014, 128 Stat. 3436, provided that:

"(a) In General.—Not later than 180 days after the date of the enactment of this Act [Dec. 19, 2014], the Secretary of Defense shall clarify regulations on reverse auctions, as necessary, to ensure that—

"(1) single bid contracts may not be entered into resulting from reverse auctions unless compliant with existing Federal regulations and Department of Defense memoranda providing guidance on single bid offers;

"(2) all reverse auctions provide offerors with the ability to submit revised bids throughout the course of the auction;

"(3) if a reverse auction is conducted by a third party—

"(A) inherently governmental functions are not performed by private contractors, including by the third party; and

"(B) past performance or financial responsibility information created by the third party is made available to offerors; and

"(4) reverse auctions resulting in design-build military construction contracts specifically authorized in law are prohibited.

"(b) Training.—Not later than 180 days after the date of the enactment of this Act, the President of the Defense Acquisition University shall establish comprehensive training available for contract specialists in the Department of Defense on the use of reverse auctions.

"(c) Design-Build Defined.—In this section, the term 'design-build' means procedures used for the selection of a contractor on the basis of price and other evaluation criteria to perform, in accordance with the provisions of a firm fixed-price contract, both the design and construction of a facility using performance specifications supplied by the Secretary of Defense."

Consideration of Corrosion Control in Preliminary Design Review

Pub. L. 113–291, div. A, title VIII, §852, Dec. 19, 2014, 128 Stat. 3458, as amended by Pub. L. 116–92, div. A, title IX, §902(34), Dec. 20, 2019, 133 Stat. 1546, provided that: "The Under Secretary of Defense for Acquisition and Sustainment shall ensure that Department of Defense Instruction 5000.02 and other applicable guidance require full consideration, during preliminary design review for a product, of metals, materials, and technologies that effectively prevent or control corrosion over the life cycle of the product."

Detection and Avoidance of Counterfeit Electronic Parts

Pub. L. 112–81, div. A, title VIII, §818(a)–(g), Dec. 31, 2011, 125 Stat. 1493–1496, as amended by Pub. L. 112–239, div. A, title VIII, §833, Jan. 2, 2013, 126 Stat. 1844; Pub. L. 113–291, div. A, title VIII, §817, Dec. 19, 2014, 128 Stat. 3432; Pub. L. 114–92, div. A, title VIII, §885, Nov. 25, 2015, 129 Stat. 948; Pub. L. 114–328, div. A, title VIII, §815, Dec. 23, 2016, 130 Stat. 2271; Pub. L. 115–232, div. A, title VIII, §812(b)(5), Aug. 13, 2018, 132 Stat. 1848, provided that:

"(a) Assessment of Department of Defense Policies and Systems.—The Secretary of Defense shall conduct an assessment of Department of Defense acquisition policies and systems for the detection and avoidance of counterfeit electronic parts.

"(b) Actions Following Assessment.—Not later than 180 days after the date of the enactment of the [probably should be "this"] Act [Dec. 31, 2011], the Secretary shall, based on the results of the assessment required by subsection (a)—

"(1) establish Department-wide definitions of the terms 'counterfeit electronic part' and 'suspect counterfeit electronic part', which definitions shall include previously used parts represented as new;

"(2) issue or revise guidance applicable to Department components engaged in the purchase of electronic parts to implement a risk-based approach to minimize the impact of counterfeit electronic parts or suspect counterfeit electronic parts on the Department, which guidance shall address requirements for training personnel, making sourcing decisions, ensuring traceability of parts, inspecting and testing parts, reporting and quarantining counterfeit electronic parts and suspect counterfeit electronic parts, and taking corrective actions (including actions to recover costs as described in subsection (c)(2));

"(3) issue or revise guidance applicable to the Department on remedial actions to be taken in the case of a supplier who has repeatedly failed to detect and avoid counterfeit electronic parts or otherwise failed to exercise due diligence in the detection and avoidance of such parts, including consideration of whether to suspend or debar a supplier until such time as the supplier has effectively addressed the issues that led to such failures;

"(4) establish processes for ensuring that Department personnel who become aware of, or have reason to suspect, that any end item, component, part, or material contained in supplies purchased by or for the Department contains counterfeit electronic parts or suspect counterfeit electronic parts provide a report in writing within 60 days to appropriate Government authorities and to the Government-Industry Data Exchange Program (or a similar program designated by the Secretary); and

"(5) establish a process for analyzing, assessing, and acting on reports of counterfeit electronic parts and suspect counterfeit electronic parts that are submitted in accordance with the processes under paragraph (4).

"(c) Regulations.—

"(1) In general.—Not later than 270 days after the date of the enactment of this Act [Dec. 31, 2011], the Secretary shall revise the Department of Defense Supplement to the Federal Acquisition Regulation to address the detection and avoidance of counterfeit electronic parts.

"(2) Contractor responsibilities.—The revised regulations issued pursuant to paragraph (1) shall provide that—

"(A) covered contractors who supply electronic parts or products that include electronic parts are responsible for detecting and avoiding the use or inclusion of counterfeit electronic parts or suspect counterfeit electronic parts in such products and for any rework or corrective action that may be required to remedy the use or inclusion of such parts; and

"(B) the cost of counterfeit electronic parts and suspect counterfeit electronic parts and the cost of rework or corrective action that may be required to remedy the use or inclusion of such parts are not allowable costs under Department contracts, unless—

"(i) the covered contractor has an operational system to detect and avoid counterfeit electronic parts and suspect counterfeit electronic parts that has been reviewed and approved by the Department of Defense pursuant to subsection (e)(2)(B);

"(ii) the counterfeit electronic parts or suspect counterfeit electronic parts were provided to the covered contractor as Government property in accordance with part 45 of the Federal Acquisition Regulation or were obtained by the covered contractor in accordance with regulations described in paragraph (3); and

"(iii) the covered contractor discovers the counterfeit electronic parts or suspect counterfeit electronic parts and provides timely notice to the Government pursuant to paragraph (4).

"(3) Suppliers meeting anticounterfeiting requirements.—The revised regulations issued pursuant to paragraph (1) shall—

"(A) require that the Department and Department contractors and subcontractors at all tiers—

"(i) obtain electronic parts that are in production or currently available in stock from the original manufacturers of the parts or their authorized dealers, or from suppliers identified as suppliers that meet anticounterfeiting requirements in accordance with regulations issued pursuant to subparagraph (C) or (D) and that obtain such parts exclusively from the original manufacturers of the parts or their authorized dealers;

"(ii) obtain electronic parts that are not in production or currently available in stock from suppliers identified as suppliers that meet anticounterfeiting requirements in accordance with regulations issued pursuant to subparagraph (C) or (D); and

"(iii) obtain electronic parts from alternate suppliers if such parts are not available from original manufacturers, their authorized dealers, or suppliers identified as suppliers that meet anticounterfeiting requirements in accordance with regulations prescribed pursuant to subparagraph (C) or (D);

"(B) establish requirements for notification of the Department, and for inspection, testing, and authentication of electronic parts that the Department or a Department contractor or subcontractor obtains from any source other than a source described in clause (i) or (ii) of subparagraph (A), if obtaining the electronic parts in accordance with such clauses is not possible;

"(C) establish qualification requirements, consistent with the requirements of section 2319 of title 10, United States Code [now 10 U.S.C. 3243], pursuant to which the Department may identify suppliers that have appropriate policies and procedures in place to detect and avoid counterfeit electronic parts and suspect counterfeit electronic parts; and

"(D) authorize Department contractors and subcontractors to identify and use additional suppliers that meet anticounterfeiting requirements, provided that—

"(i) the standards and processes for identifying such suppliers comply with established industry standards;

"(ii) the contractor or subcontractor assumes responsibility for the authenticity of parts provided by such suppliers as provided in paragraph (2); and

"(iii) the selection of such suppliers is subject to review, audit, and approval by appropriate Department officials.

"(4) Reporting requirement.—The revised regulations issued pursuant to paragraph (1) shall require that any Department contractor or subcontractor who becomes aware, or has reason to suspect, that any end item, component, part, or material contained in supplies purchased by the Department, or purchased by a contractor or subcontractor for delivery to, or on behalf of, the Department, contains counterfeit electronic parts or suspect counterfeit electronic parts report in writing within 60 days to appropriate Government authorities and the Government-Industry Data Exchange Program (or a similar program designated by the Secretary).

"(5) Construction of compliance with reporting requirement.—A Department contractor or subcontractor that provides a written report required under this subsection shall not be subject to civil liability on the basis of such reporting, provided the contractor or subcontractor made a reasonable effort to determine that the end item, component, part, or material concerned contained counterfeit electronic parts or suspect counterfeit electronic parts.

"(d) Inspection Program.—The Secretary of Homeland Security shall establish and implement a risk-based methodology for the enhanced targeting of electronic parts imported from any country, after consultation with the Secretary of Defense as to sources of counterfeit electronic parts and suspect counterfeit electronic parts in the supply chain for products purchased by the Department of Defense.

"(e) Improvement of Contractor Systems for Detection and Avoidance of Counterfeit Electronic Parts.—

"(1) In general.—Not later than 270 days after the date of the enactment of this Act [Dec. 31, 2011], the Secretary of Defense shall implement a program to enhance contractor detection and avoidance of counterfeit electronic parts.

"(2) Elements.—The program implemented pursuant to paragraph (1) shall—

"(A) require covered contractors that supply electronic parts or systems that contain electronic parts to establish policies and procedures to eliminate counterfeit electronic parts from the defense supply chain, which policies and procedures shall address—

"(i) the training of personnel;

"(ii) the inspection and testing of electronic parts;

"(iii) processes to abolish counterfeit parts proliferation;

"(iv) mechanisms to enable traceability of parts;

"(v) the use of suppliers that meet applicable anticounterfeiting requirements;

"(vi) the reporting and quarantining of counterfeit electronic parts and suspect counterfeit electronic parts;

"(vii) methodologies to identify suspect counterfeit parts and to rapidly determine if a suspect counterfeit part is, in fact, counterfeit;

"(viii) the design, operation, and maintenance of systems to detect and avoid counterfeit electronic parts and suspect counterfeit electronic parts; and

"(ix) the flow down of counterfeit avoidance and detection requirements to subcontractors; and

"(B) establish processes for the review and approval of contractor systems for the detection and avoidance of counterfeit electronic parts and suspect counterfeit electronic parts, which processes shall be comparable to the processes established for contractor business systems under section 893 of the Ike Skelton National Defense Authorization Act for Fiscal Year 2011 (Public Law 111–383; 124 Stat. 4311; 10 U.S.C. 2302 note [now 10 U.S.C. 3841 note prec.]).

"(f) Definitions.—In subsections (a) through (e) of this section:

"(1) The term 'covered contractor' has the meaning given that term in section 893(f)(2) of the Ike Skelton National Defense Authorization Act for Fiscal Year 2011.

"(2) The term 'electronic part' means an integrated circuit, a discrete electronic component (including, but not limited to, a transistor, capacitor, resistor, or diode), or a circuit assembly."

[(g) Repealed. Pub. L. 115–232, div. A, title VIII, §812(b)(5), Aug. 13, 2018, 132 Stat. 1848.]

Contracts for Commercial Imaging Satellite Capacities

Pub. L. 111–383, div. A, title I, §127, Jan. 7, 2011, 124 Stat. 4161, which required any contract, entered into by the Department of Defense after Dec. 31, 2010, for additional commercial imaging satellite capability or capacity to have aperture of not less than 1.5 meters, was repealed by Pub. L. 118–159, div. A, title VIII, §811(a)(1)(C), Dec. 23, 2024, 138 Stat. 1979.

Pilot Program on Acquisition of Military Purpose Nondevelopmental Items

Pub. L. 111–383, div. A, title VIII, §866(a)–(f), Jan. 7, 2011, 124 Stat. 4296–4298, as amended by Pub. L. 113–66, div. A, title VIII, §814, Dec. 26, 2013, 127 Stat. 808; Pub. L. 113–291, div. A, title X, §1071(b)(1)(B), Dec. 19, 2014, 128 Stat. 3505; Pub. L. 114–92, div. A, title VIII, §892, Nov. 25, 2015, 129 Stat. 952; Pub. L. 115–91, div. A, title X, §1051(p)(3), Dec. 12, 2017, 131 Stat. 1564; Pub. L. 116–283, div. A, title XVIII, §§1806(e)(3)(E), 1831(j)(2), Jan. 1, 2021, 134 Stat. 4156, 4216, provided that:

"(a) Pilot Program Authorized.—

"(1) In general.—The Secretary of Defense may carry out a pilot program to assess the feasability [sic] and advisability of acquiring military purpose nondevelopmental items in accordance with this section.

"(2) Scope of program.—Under the pilot program, the Secretary may enter into contracts for the acquisition of military purpose nondevelopmental items in accordance with the requirements set forth in subsection (b).

"(b) Contract Requirements.—Each contract entered into under the pilot program—

"(1) shall be a firm, fixed price contract, or a firm, fixed price contract with an economic price adjustment clause;

"(2) shall be in an amount not in excess of $100,000,000, including all options;

"(3) shall provide—

"(A) for the delivery of an initial lot of production quantities of completed items not later than nine months after the date of the award of such contract; and

"(B) that failure to make delivery as provided for under subparagraph (A) may result in the termination of such contract for default; and

"(4) shall be—

"(A) exempt from the requirement to submit certified cost or pricing data under chapter 271 of title 10, United States Code, and the cost accounting standards under chapter 15 of title 41, United States Code; and

"(B) subject to the requirement to provide data other than certified cost or pricing data for the purpose of price reasonableness determinations, as provided in section 3705 of title 10, United States Code.

"(c) Regulations.—If the Secretary establishes the pilot program authorized under subsection (a), the Secretary shall prescribe regulations governing such pilot program. Such regulations shall be included in regulations of the Department of Defense prescribed as part of the Federal Acquisition Regulation and shall include the contract clauses and procedures necessary to implement such program.

"(d) Program Assessment.—If the Secretary establishes the pilot program authorized under subsection (a), not later than four years after the date of the enactment of this Act, the Comptroller General of the United States shall submit to the congressional defense committees a report setting forth the assessment of the Comptroller General of the extent to which the pilot program—

"(1) enabled the Department to acquire items that otherwise might not have been available to the Department;

"(2) assisted the Department in the rapid acquisition and fielding of capabilities needed to meet urgent operational needs; and

"(3) protected the interests of the United States in paying fair and reasonable prices for the item or items acquired.

"(e) Definitions.—In this section:

"(1) The term 'military purpose nondevelopmental item' means a nondevelopmental item that meets a validated military requirement, as determined in writing by the responsible program manager, and has been developed exclusively at private expense. For purposes of this paragraph, an item shall not be considered to be developed exclusively at private expense if development of the item was paid for in whole or in part through—

"(A) independent research and development costs or bid and proposal costs that have been reimbursed directly or indirectly by a Federal agency or have been submitted to a Federal agency for reimbursement; or

"(B) foreign government funding.

"(2) The term 'nondevelopmental item'—

"(A) has the meaning given that term in section 110 of title 41, United States Code; and

"(B) also includes previously developed items of supply that require modifications other than those customarily available in the commercial marketplace if such modifications are consistent with the requirement in subsection (b)(3)(A).

"(3) The term 'nontraditional defense contractor' has the meaning given that term in section 3014 of title 10, United States Code (as added by subsection (g)).

"(4) The terms 'independent research and developments costs' and 'bid and proposal costs' have the meaning given such terms in section 31.205–18 of the Federal Acquisition Regulation.

"(f) Sunset.—

"(1) In general.—The authority to carry out the pilot program shall expire on December 31, 2019.

"(2) Continuation of current contracts.—The expiration under paragraph (1) of the authority to carry out the pilot program shall not affect the validity of any contract awarded under the pilot program before the date of the expiration of the pilot program under that paragraph."

Publication of Notification of Bundling of Contracts of the Department of Defense

Pub. L. 111–84, div. A, title VIII, §820, Oct. 28, 2009, 123 Stat. 2410, provided that:

"(a) Requirement to Publish Notification for Bundling.—A contracting officer of the Department of Defense carrying out a covered acquisition shall publish a notification consistent with the requirements of paragraph (c)(2) of subpart 10.001 of the Federal Acquisition Regulation on the website known as FedBizOpps.gov (or any successor site) at least 30 days prior to the release of a solicitation for such acquisition and, if the agency has determined that measurably substantial benefits are expected to be derived as a result of bundling such acquisition, shall include in the notification a brief description of the benefits.

"(b) Covered Acquisition Defined.—In this section, the term 'covered acquisition' means an acquisition that is—

"(1) funded entirely using funds of the Department of Defense; and

"(2) covered by subpart 7.107 of the Federal Acquisition Regulation (relating to acquisitions involving bundling).

"(c) Construction.—

"(1) Notification.—Nothing in this section shall be construed to alter the responsibility of a contracting officer to provide the notification referred to in subsection (a) with respect to a covered acquisition, or otherwise provide notification, to any party concerning such acquisition under any other requirement of law or regulation.

"(2) Disclosure.—Nothing in this section shall be construed to require the public availability of information that is exempt from public disclosure under section 552(b) of title 5, United States Code, or is otherwise restricted from public disclosure by law or Executive order.

"(3) Issuance of solicitation.—Nothing in this section shall be construed to require a contracting officer to delay the issuance of a solicitation in order to meet the requirements of subsection (a) if the expedited issuance of such solicitation is otherwise authorized under any other requirement of law or regulation."

Small Arms Acquisition Strategy and Requirements Review

Pub. L. 110–417, [div. A], title I, §143, Oct. 14, 2008, 122 Stat. 4381, as amended by Pub. L. 111–383, div. A, title X, §1075(e)(1), Jan. 7, 2011, 124 Stat. 4374, provided that:

"(a) Secretary of Defense Report.—Not later than 120 days after the date of the enactment of this Act [Oct. 14, 2008], the Secretary of Defense shall submit to the congressional defense committees [Committees on Armed Services and Appropriations of the Senate and the House of Representatives] a report on the small arms requirements of the Armed Forces and the industrial base of the United States. The report shall include the following:

"(1) An assessment of Department of Defense-wide small arms requirements in terms of capabilities and quantities, based on an analysis of the small arms capability assessments of each military department.

"(2) An assessment of plans for small arms research, development, and acquisition programs to meet the requirements identified under paragraph (1).

"(3) An assessment of capabilities, capacities, and risks in the small arms industrial base of the United States to meet the requirements of the Department of Defense for pistols, carbines, rifles, and light, medium, and heavy machine guns during the 20 years following the date of the report.

"(4) An assessment of the costs, benefits, and risks of full and open competition for the procurement of non-developmental pistols and carbines that are not technically compatible with the M9 pistol or M4 carbine to meet the requirements identified under paragraph (1).

"(b) Competition for a New Individual Weapon.—

"(1) Competition required.—If the small arms capabilities based assessments by the Army identify gaps in small arms capabilities and the Secretary of the Army determines that a new individual weapon is required to address such gaps, the Secretary shall procure the new individual weapon using full and open competition as described in paragraph (2).

"(2) Full and open competition.—The full and open competition described in this paragraph is competition among all responsible manufacturers that—

"(A) is open to all developmental item solutions and non-developmental item solutions; and

"(B) provides for the award of a contract based on selection criteria that reflect the key performance parameters and attributes identified in a service requirements document approved by the Army.

"(c) Small Arms Defined.—In this section, the term 'small arms'—

"(1) means man-portable or vehicle-mounted light weapons, designed primarily for use by individual military personnel for anti-personnel use; and

"(2) includes pistols, carbines, rifles, and light, medium, and heavy machine guns."

Trusted Defense Systems

Pub. L. 110–417, [div. A], title II, §254, Oct. 14, 2008, 122 Stat. 4402, as amended by Pub. L. 116–92, div. A, title IX, §902(37), Dec. 20, 2019, 133 Stat. 1547; Pub. L. 116–283, div. A, title XVIII, §1806(e)(2)(C), Jan. 1, 2021, 134 Stat. 4155, provided that:

"(a) Vulnerability Assessment Required.—The Secretary of Defense shall conduct an assessment of selected covered acquisition programs to identify vulnerabilities in the supply chain of each program's electronics and information processing systems that potentially compromise the level of trust in the systems. Such assessment shall—

"(1) identify vulnerabilities at multiple levels of the electronics and information processing systems of the selected programs, including microcircuits, software, and firmware;

"(2) prioritize the potential vulnerabilities and effects of the various elements and stages of the system supply chain to identify the most effective balance of investments to minimize the effects of compromise;

"(3) provide recommendations regarding ways of managing supply chain risk for covered acquisition programs; and

"(4) identify the appropriate lead person, and supporting elements, within the Department of Defense for the development of an integrated strategy for managing risk in the supply chain for covered acquisition programs.

"(b) Assessment of Methods for Verifying the Trust of Semiconductors Procured From Commercial Sources.—The Under Secretary of Defense for Acquisition and Sustainment, in consultation with appropriate elements of the Department of Defense, the intelligence community, private industry, and academia, shall conduct an assessment of various methods of verifying the trust of semiconductors procured by the Department of Defense from commercial sources for use in mission-critical components of potentially vulnerable defense systems. The assessment shall include the following:

"(1) An identification of various methods of verifying the trust of semiconductors, including methods under development at the Defense Agencies, government laboratories, institutions of higher education, and in the private sector.

"(2) A determination of the methods identified under paragraph (1) that are most suitable for the Department of Defense.

"(3) An assessment of the additional research and technology development needed to develop methods of verifying the trust of semiconductors that meet the needs of the Department of Defense.

"(4) Any other matters that the Under Secretary considers appropriate.

"(c) Strategy Required.—

"(1) In general.—The lead person identified under subsection (a)(4), in cooperation with the supporting elements also identified under such subsection, shall develop an integrated strategy—

"(A) for managing risk—

"(i) in the supply chain of electronics and information processing systems for covered acquisition programs; and

"(ii) in the procurement of semiconductors; and

"(B) that ensures dependable, continuous, long-term access and trust for all mission-critical semiconductors procured from both foreign and domestic sources.

"(2) Requirements.—At a minimum, the strategy shall—

"(A) address the vulnerabilities identified by the assessment under subsection (a);

"(B) reflect the priorities identified by such assessment;

"(C) provide guidance for the planning, programming, budgeting, and execution process in order to ensure that covered acquisition programs have the necessary resources to implement all appropriate elements of the strategy;

"(D) promote the use of verification tools, as appropriate, for ensuring trust of commercially acquired systems;

"(E) increase use of trusted foundry services, as appropriate; and

"(F) ensure sufficient oversight in implementation of the plan.

"(d) Policies and Actions for Assuring Trust in Integrated Circuits.—Not later than 180 days after the date of the enactment of this Act [Oct. 14, 2008], the Secretary of Defense shall—

"(1) develop policy requiring that trust assurance be a high priority for covered acquisition programs in all phases of the electronic component supply chain and integrated circuit development and production process, including design and design tools, fabrication of the semiconductors, packaging, final assembly, and test;

"(2) develop policy requiring that programs whose electronics and information systems are determined to be vital to operational readiness or mission effectiveness are to employ trusted foundry services to fabricate their custom designed integrated circuits, unless the Secretary specifically authorizes otherwise;

"(3) incorporate the strategies and policies of the Department of Defense regarding development and use of trusted integrated circuits into all relevant Department directives and instructions related to the acquisition of integrated circuits and programs that use such circuits; and

"(4) take actions to promote the use and development of tools that verify the trust in all phases of the integrated circuit development and production process of mission-critical parts acquired from non-trusted sources.

"(e) Submission to Congress.—Not later than 12 months after the date of the enactment of this Act [Oct. 14, 2008], the Secretary of Defense shall submit to the congressional defense committees [Committees on Armed Services and Appropriations of the Senate and the House of Representatives]—

"(1) the assessments required by subsections (a) and (b);

"(2) the strategy required by subsection (c); and

"(3) a description of the policies developed and actions taken under subsection (d).

"(f) Definitions.—In this section:

"(1) The term 'covered acquisition programs' means an acquisition program of the Department of Defense that is a major system for purposes of section 3041 of title 10, United States Code.

"(2) The terms 'trust' and 'trusted' refer, with respect to electronic and information processing systems, to the ability of the Department of Defense to have confidence that the systems function as intended and are free of exploitable vulnerabilities, either intentionally or unintentionally designed or inserted as part of the system at any time during its life cycle.

"(3) The term 'trusted foundry services' means the program of the National Security Agency and the Department of Defense, or any similar program approved by the Secretary of Defense, for the development and manufacture of integrated circuits for critical defense systems in secure industrial environments."

Enhanced Authority To Acquire Products and Services Produced in Afghanistan

Pub. L. 110–181, div. A, title VIII, §886, Jan. 28, 2008, 122 Stat. 266, as amended by Pub. L. 112–239, div. A, title VIII, §842, Jan. 2, 2013, 126 Stat. 1845; Pub. L. 114–92, div. A, title VIII, §886(a), Nov. 25, 2015, 129 Stat. 949, which allowed the Secretary of Defense to procure products or services acquired in support of military operations or stability operations in Afghanistan (including security, transition, reconstruction, and humanitarian relief activities), was repealed by Pub. L. 118–159, div. A, title VIII, §811(a)(1)(B), Dec. 23, 2024, 138 Stat. 1979.

Prevention of Export Control Violations

Pub. L. 110–181, div. A, title VIII, §890, Jan. 28, 2008, 122 Stat. 269, as amended by Pub. L. 110–417, [div. A], title X, §1061(b)(6), Oct. 14, 2008, 122 Stat. 4613; Pub. L. 111–383, div. A, title X, §1075(f)(6), Jan. 7, 2011, 124 Stat. 4376, provided that:

"(a) Prevention of Export Control Violations.—Not later than 180 days after the date of the enactment of this Act [Jan. 28, 2008], the Secretary of Defense shall prescribe regulations requiring any contractor under a contract with the Department of Defense to provide goods or technology that is subject to export controls under the Arms Export Control Act [22 U.S.C. 2751 et seq.] or the Export Administration Act of 1979 [50 U.S.C. 4601 et seq.] (as continued in effect under the International Emergency Economic Powers Act [50 U.S.C. 1701 et seq.]) to comply with those Acts and applicable regulations with respect to such goods and technology, including the International Traffic in Arms Regulations and the Export Administration Regulations. Regulations prescribed under this subsection shall include a contract clause enforcing such requirement.

"(b) Training on Export Controls.—The Secretary of Defense shall ensure that any contractor under a contract with the Department of Defense to provide goods or technology that is subject to export controls under the Arms Export Control Act or the Export Administration Act of 1979 (as continued in effect under the International Emergency Economic Powers Act) is made aware of any relevant resources made available by the Department of State and the Department of Commerce to assist in compliance with the requirement established by subsection (a) and the need for a corporate compliance plan and periodic internal audits of corporate performance under such plan.

"(c) Report.—Not later than 180 days after the date of the enactment of this Act [Jan. 28, 2008], the Secretary of Defense shall submit to the Committee on Armed Services of the Senate and the Committee on Armed Services of the House of Representatives a report assessing the utility of—

"(1) requiring defense contractors (or subcontractors at any tier) to periodically report on measures taken to ensure compliance with the International Traffic in Arms Regulations and the Export Administration Regulations;

"(2) requiring periodic audits of defense contractors (or subcontractors at any tier) to ensure compliance with all provisions of the International Traffic in Arms Regulations and the Export Administration Regulations;

"(3) requiring defense contractors to maintain a corporate training plan to disseminate information to appropriate contractor personnel regarding the applicability of the Arms Export Control Act and the Export Administration Act of 1979; and

"(4) requiring a designated corporate liaison, available for training provided by the United States Government, whose primary responsibility would be contractor compliance with the Arms Export Control Act and the Export Administration Act of 1979.

"(d) Definitions.—In this section:

"(1) Export administration regulations.—The term 'Export Administration Regulations' means those regulations contained in parts 730 through 774 of title 15, Code of Federal Regulations (or successor regulations).

"(2) International traffic in arms regulations.—The term 'International Traffic in Arms Regulations' means those regulations contained in parts 120 through 130 of title 22, Code of Federal Regulations (or successor regulations)."

Quality Control in Procurement of Ship Critical Safety Items and Related Services

Pub. L. 109–364, div. A, title I, §130(a)–(c), Oct. 17, 2006, 120 Stat. 2110, provided that:

"(a) Quality Control Policy.—The Secretary of Defense shall prescribe in regulations a quality control policy for the procurement of the following:

"(1) Ship critical safety items.

"(2) Modifications, repair, and overhaul of ship critical safety items.

"(b) Elements.—The policy required under subsection (a) shall include requirements as follows:

"(1) That the head of the design control activity for ship critical safety items establish processes to identify and manage the procurement, modification, repair, and overhaul of such items.

"(2) That the head of the contracting activity for a ship critical safety item enter into a contract for the procurement, modification, repair, or overhaul of such item only with a source on a qualified manufacturers list or a source approved by the design control activity in accordance with section 2319 of title 10, United States Code [now 10 U.S.C. 3243] (as amended by subsection (d)).

"(3) That the ship critical safety items delivered, and the services performed with respect to such items, meet all technical and quality requirements specified by the design control activity.

"(c) Definitions.—In this section, the terms 'ship critical safety item' and 'design control activity' have the meanings given such terms in subsection (g) of section 2319 of title 10, United States Code [now 10 U.S.C. 3243(g)] (as so amended)."

Review and Demonstration Project Relating to Contractor Employees

Pub. L. 108–375, div. A, title VIII, §851, Oct. 28, 2004, 118 Stat. 2019, provided that:

"(a) General Review.—(1) The Secretary of Defense shall conduct a review of policies, procedures, practices, and penalties of the Department of Defense relating to employees of defense contractors for purposes of ensuring that the Department of Defense is in compliance with Executive Order No. 12989 [8 U.S.C. 1324a note] (relating to a prohibition on entering into contracts with contractors that are not in compliance with the Immigration and Nationality Act [8 U.S.C. 1101 et seq.]).

"(2) In conducting the review, the Secretary shall—

"(A) identify potential weaknesses and areas for improvement in existing policies, procedures, practices, and penalties;

"(B) develop and implement reforms to strengthen, upgrade, and improve policies, procedures, practices, and penalties of the Department of Defense and its contractors; and

"(C) review and analyze reforms developed pursuant to this paragraph to identify for purposes of national implementation those which are most efficient and effective.

"(3) The review under this subsection shall be completed not later than 180 days after the date of the enactment of this Act [Oct. 28, 2004].

"(b) Demonstration Project.—The Secretary of Defense shall conduct a demonstration project in accordance with this section, in one or more regions selected by the Secretary, for purposes of promoting greater contracting opportunities for contractors offering effective, reliable staffing plans to perform defense contracts that ensure all contract personnel employed for such projects, including management employees, professional employees, craft labor personnel, and administrative personnel, are lawful residents or persons properly authorized to be employed in the United States and properly qualified to perform services required under the contract. The demonstration project shall focus on contracts for construction, renovation, maintenance, and repair services for military installations.

"(c) Demonstration Project Procurement Procedures.—As part of the demonstration project under subsection (b), the Secretary of Defense may conduct a competition in which there is a provision in contract solicitations and request for proposal documents to require significant weight or credit be allocated to—

"(1) reliable, effective workforce programs offered by prospective contractors that provide background checks and other measures to ensure the contractor is in compliance with the Immigration and Nationality Act; and

"(2) reliable, effective project staffing plans offered by prospective contractors that specify for all contract employees (including management employees, professionals, and craft labor personnel) the skills, training, and qualifications of such persons and the labor supply sources and hiring plans or procedures used for employing such persons.

"(d) Implementation of Demonstration Project.—The Secretary of Defense shall begin operation of the demonstration project required under this section after completion of the review under subsection (a), but in no event later than 270 days after the date of the enactment of this Act.

"(e) Report on Demonstration Project.—Not later than six months after award of a contract under the demonstration project, the Secretary of Defense shall submit to the Committees on Armed Services of the Senate and House of Representatives a report setting forth a review of the demonstration project and recommendations on the actions, if any, that can be implemented to ensure compliance by the Department of Defense with Executive Order No. 12989.

"(f) Definition.—In this section, the term 'military installation' means a base, camp, post, station, yard, center, homeport facility for any ship, or other activity under the jurisdiction of the Department of Defense, including any leased facility, which is located within any of the several States, the District of Columbia, the Commonwealth of Puerto Rico, American Samoa, the Virgin Islands, or Guam. Such term does not include any facility used primarily for civil works, rivers and harbors projects, or flood control projects."

Quality Control in Procurement of Aviation Critical Safety Items and Related Services

Pub. L. 108–136, div. A, title VIII, §802(a)–(c), Nov. 24, 2003, 117 Stat. 1540, provided that:

"(a) Quality Control Policy.—The Secretary of Defense shall prescribe in regulations a quality control policy for the procurement of aviation critical safety items and the procurement of modifications, repair, and overhaul of such items.

"(b) Content of Regulations.—The policy set forth in the regulations shall include the following requirements:

"(1) That the head of the design control activity for aviation critical safety items establish processes to identify and manage the procurement, modification, repair, and overhaul of aviation critical safety items.

"(2) That the head of the contracting activity for an aviation critical safety item enter into a contract for the procurement, modification, repair, or overhaul of such item only with a source approved by the design control activity in accordance with section 2319 of title 10, United States Code [now 10 U.S.C. 3243].

"(3) That the aviation critical safety items delivered, and the services performed with respect to aviation critical safety items, meet all technical and quality requirements specified by the design control activity.

"(c) Definitions.—In this section, the terms 'aviation critical safety item' and 'design control activity' have the meanings given such terms in section 2319(g) of title 10, United States Code [now 10 U.S.C. 3243(g)], as amended by subsection (d)."

Procurement of Environmentally Preferable Procurement Items

Pub. L. 107–314, div. A, title III, §314, Dec. 2, 2002, 116 Stat. 2508, as amended by Pub. L. 109–163, div. A, title X, §1056(e)(1), Jan. 6, 2006, 119 Stat. 3440, provided that:

"(a) Tracking System.—The Secretary of Defense shall develop and implement an effective and efficient tracking system to identify the extent to which the Defense Logistics Agency procures environmentally preferable procurement items or procurement items made with recovered material. The system shall provide for the separate tracking, to the maximum extent practicable, of the procurement of each category of procurement items that, as of the date of the enactment of this Act [Dec. 2, 2002], has been determined to be environmentally preferable or made with recovered material.

"(b) Assessment of Training and Education.—The Secretary of Defense shall assess the need to establish a program, or enhance existing programs, for training and educating Department of Defense procurement officials to ensure that they are aware of any Department requirements, preferences, or goals for the procurement of environmentally preferable procurement items or procurement items made with recovered material.

"(c) Reporting Requirement.—Not later than March 1, 2004, and each March 1 thereafter through 2007, the Secretary of Defense shall submit to the Committee on Armed Services of the Senate and the Committee on Armed Services of the House of Representatives a report detailing the results obtained from the tracking system developed under subsection (a).

"(d) Relation to Other Laws.—Nothing in this section shall be construed to alter the requirements of the Solid Waste Disposal Act (42 U.S.C. 6901 et seq.).

"(e) Definitions.—In this section:

"(1) The term 'environmentally preferable', in the case of a procurement item, means that the item has a lesser or reduced effect on human health and the environment when compared with competing products that serve the same purpose. The comparison may consider raw materials acquisition, production, manufacturing, packaging, distribution, reuse, operation, maintenance, or disposal of the product.

"(2) The terms 'procurement item' and 'recovered material' have the meanings given such terms in section 1004 of the Solid Waste Disposal Act (42 U.S.C. 6903)."

Requirement To Disregard Certain Agreements in Awarding Contracts for Purchase of Firearms or Ammunition

Pub. L. 106–398, §1 [[div. A], title VIII, §826], Oct. 30, 2000, 114 Stat. 1654, 1654A-220, provided that: "In accordance with the requirements contained in the amendments enacted in the Competition in Contracting Act of 1984 (title VII of division B of Public Law 98–369; 98 Stat. 1175) [see Tables for classification], the Secretary of Defense may not, in awarding a contract for the purchase of firearms or ammunition, take into account whether a manufacturer or vendor of firearms or ammunition is a party to an agreement under which the manufacturer or vendor agrees to adopt limitations with respect to importing, manufacturing, or dealing in firearms or ammunition in the commercial market."

Procurement of Conventional Ammunition

Pub. L. 105–261, div. A, title VIII, §806, Oct. 17, 1998, 112 Stat. 2084, provided that:

"(a) Authority.—The official in the Department of Defense designated as the single manager for conventional ammunition in the Department shall have the authority to restrict the procurement of conventional ammunition to sources within the national technology and industrial base in accordance with the authority in section 2304(c) of title 10, United States Code [now 10 U.S.C. 3204(a)].

"(b) Requirement.—The official in the Department of Defense designated as the single manager for conventional ammunition in the Department of Defense shall limit a specific procurement of ammunition to sources within the national technology and industrial base in accordance with section 2304(c)(3) of title 10, United States Code [now 10 U.S.C. 3204(a)(3)], in any case in which that manager determines that such limitation is necessary to maintain a facility, producer, manufacturer, or other supplier available for furnishing an essential item of ammunition or ammunition component in cases of national emergency or to achieve industrial mobilization.

"(c) Conventional Ammunition Defined.—For purposes of this section, the term 'conventional ammunition' has the meaning given that term in Department of Defense Directive 5160.65, dated March 8, 1995."

Fighter Aircraft Engine Warranty

Pub. L. 97–377, title I, §101(c) [title VII, §797], Dec. 21, 1982, 96 Stat. 1865, provided that: "None of the funds made available in the Act or any subsequent Act shall be available for the purchase of the alternate or new model fighter aircraft engine that does not have a written warranty or guarantee attesting that it will perform not less than 3,000 tactical cycles. The warranty will provide that the manufacturer must perform the necessary improvements or replace any parts to achieve the required performance at no cost to the Government."

§3241. Design-build selection procedures

(a) Authorization.—Unless the traditional acquisition approach of design-bid-build established under chapter 11 of title 40 is used or another acquisition procedure authorized by law is used, the head of an agency shall use the two-phase selection procedures authorized in this section for entering into a contract for the design and construction of a public building, facility, or work when a determination is made under subsection (b) that the procedures are appropriate for use.

(b) Criteria for Use.—A contracting officer shall make a determination whether two-phase selection procedures are appropriate for use for entering into a contract for the design and construction of a public building, facility, or work when—

(1) the contracting officer anticipates that three or more offers will be received for such contract;

(2) design work must be performed before an offeror can develop a price or cost proposal for such contract;

(3) the offeror will incur a substantial amount of expense in preparing the offer; and

(4) the contracting officer has considered information such as the following:

(A) The extent to which the project requirements have been adequately defined.

(B) The time constraints for delivery of the project.

(C) The capability and experience of potential contractors.

(D) The suitability of the project for use of the two-phase selection procedures.

(E) The capability of the agency to manage the two-phase selection process.

(F) Other criteria established by the agency.

(c) Procedures Described.—Two-phase selection procedures consist of the following:

(1) Development of scope of work statement.—The agency develops, either in-house or by contract, a scope of work statement for inclusion in the solicitation that defines the project and provides prospective offerors with sufficient information regarding the Government's requirements (which may include criteria and preliminary design, budget parameters, and schedule or delivery requirements) to enable the offerors to submit proposals which meet the Government's needs. If the agency contracts for development of the scope of work statement, the agency shall contract for architectural and engineering services as defined by and in accordance with chapter 11 of title 40.

(2) Solicitation of phase-one proposals.—The contracting officer solicits phase-one proposals that—

(A) include information on the offeror's—

(i) technical approach; and

(ii) technical qualifications; and

(B) do not include—

(i) detailed design information; or

(ii) cost or price information.

(3) Evaluation factors.—

(A) Evaluation factors to be used.—The evaluation factors to be used in evaluating phase-one proposals are stated in the solicitation and include—

(i) specialized experience and technical competence;

(ii) capability to perform;

(iii) past performance of the offeror's team (including the architect-engineer and construction members of the team); and

(iv) other appropriate factors, except that cost-related or price-related evaluation factors are not permitted.

(B) Relative importance of evaluation factors and subfactors.—Each solicitation establishes the relative importance assigned to the evaluation factors and subfactors that must be considered in the evaluation of phase-one proposals.

(C) Evaluation of proposals.—The agency evaluates phase-one proposals on the basis of the phase-one evaluation factors set forth in the solicitation.

(4) Selection by contracting officer.—

(A) Number of offerors selected and what is to be evaluated.—The contracting officer selects as the most highly qualified the number of offerors specified in the solicitation to provide the property or services under the contract and requests the selected offerors to submit phase-two competitive proposals that include technical proposals and cost or price information. Each solicitation establishes with respect to phase two—

(i) the technical submission for the proposal, including design concepts or proposed solutions to requirements addressed within the scope of work (or both), and

(ii) the evaluation factors and subfactors, including cost or price, that must be considered in the evaluations of proposals in accordance with subsections (b), (c), and (d) of section 3206 of this title.

(B) The contracting officer separately evaluates the submissions described in clauses (i) and (ii) of subparagraph (A).

(5) Awarding of contract.—The agency awards the contract in accordance with section 3303 of this title.

(d) Solicitation to State Number of Offerors To Be Selected for Phase Two Requests for Competitive Proposals.—A solicitation issued pursuant to the procedures described in subsection (c) shall state the maximum number of offerors that are to be selected to submit competitive proposals pursuant to subsection (c)(4). If the contract value exceeds $4,000,000, the maximum number specified in the solicitation shall not exceed 5 unless—

(1) the solicitation is issued pursuant to an indefinite delivery-indefinite quantity contract for design-build construction; or

(2)(A) the head of the contracting activity, delegable to a level no lower than the senior contracting official within the contracting activity, approves the contracting officer's justification with respect to an individual solicitation that a maximum number greater than 5 is in the interest of the Federal Government; and

(B) the contracting officer provides written documentation of how a maximum number greater than 5 is consistent with the purposes and objectives of the two-phase selection procedures.

(e) Requirement for Guidance and Regulations.—The Federal Acquisition Regulation shall include guidance—

(1) regarding the factors that may be considered in determining whether the two-phase contracting procedures authorized by subsection (a) are appropriate for use in individual contracting situations;

(2) regarding the factors that may be used in selecting contractors; and

(3) providing for a uniform approach to be used Government-wide.

(f) Special Authority for Military Construction Projects.—(1) The Secretary of a military department may use funds available to the Secretary under section 2807(a) or 18233(e) of this title to accelerate the design effort in connection with a military construction project for which the two-phase selection procedures described in subsection (c) are used to select the contractor for both the design and construction portion of the project before the project is specifically authorized by law and before funds are appropriated for the construction portion of the project. Notwithstanding the limitations contained in such sections, use of such funds for the design portion of a military construction project may continue despite the subsequent authorization of the project. The advance notice requirement of section 2807(b) of this title shall continue to apply whenever the estimated cost of the design portion of the project exceeds the amount specified in such section.

(2) Any military construction contract that provides for an accelerated design effort, as authorized by paragraph (1), shall include as a condition of the contract that the liability of the United States in a termination for convenience before funds are first made available for construction may not exceed an amount attributable to the final design of the project.

(3) For each fiscal year during which the authority provided by this subsection is in effect, the Secretary of a military department may select not more than two military construction projects to include the accelerated design effort authorized by paragraph (1) for each armed force under the jurisdiction of the Secretary. To be eligible for selection under this subsection, a request for the authorization of the project, and for the authorization of appropriations for the project, must have been included in the annual budget of the President for a fiscal year submitted to Congress under section 1105(a) of title 31.

(4) Not later than March 1, 2008, the Secretary of Defense shall submit to the congressional defense committees a report evaluating the usefulness of the authority provided by this subsection in expediting the design and construction of military construction projects. The authority provided by this subsection expires September 30, 2008, except that, if the report required by this paragraph is not submitted by March 1, 2008, the authority shall expire on that date.

(Added Pub. L. 104–106, div. D, title XLI, §4105(a)(1), Feb. 10, 1996, 110 Stat. 645, §2305a; amended Pub. L. 105–85, div. A, title X, §1073(a)(44), Nov. 18, 1997, 111 Stat. 1902; Pub. L. 107–217, §3(b)(4), Aug. 21, 2002, 116 Stat. 1295; Pub. L. 108–178, §4(b)(3), Dec. 15, 2003, 117 Stat. 2641; Pub. L. 108–375, div. B, title XXVIII, §2807, Oct. 28, 2004, 118 Stat. 2123; Pub. L. 109–163, div. B, title XXVIII, §2807, Jan. 6, 2006, 119 Stat. 3508; Pub. L. 113–291, div. A, title VIII, §814, Dec. 19, 2014, 128 Stat. 3430; Pub. L. 115–91, div. A, title VIII, §823, Dec. 12, 2017, 131 Stat. 1465; Pub. L. 116–92, div. A, title XVII, §1731(a)(38), Dec. 20, 2019, 133 Stat. 1814; renumbered §3241 and amended Pub. L. 116–283, div. A, title XVIII, §1813(b), Jan. 1, 2021, 134 Stat. 4177.)

Editorial Notes

Amendments

2021—Pub. L. 116–283, §1813(b), renumbered section 2305a of this title as this section.

Subsec. (b). Pub. L. 116–283, §1813(b)(1), inserted dash after "or work when", reorganized remainder of former introductory provisions of subsec. (b) into designated pars. (1) to (4), and redesignated former pars. (1) to (6) as subpars. (A) to (F), respectively, of par. (4) and realigned margins.

Subsec. (c)(1), (2). Pub. L. 116–283, §1813(b)(2)(A), (B), inserted headings.

Subsec. (c)(3). Pub. L. 116–283, §1813(b)(2)(C)(i), (ii), inserted par. heading, designated first, second, and third sentences of existing provisions as subpars. (A), (B), and (C), respectively, and inserted subpar. headings.

Subsec. (c)(3)(A). Pub. L. 116–283, §1813(b)(2)(C)(iii), inserted dash after "and include—" and reorganized remainder of subpar. (A) into designated cls. (i) to (iv).

Subsec. (c)(4). Pub. L. 116–283, §1813(b)(2)(D)(i), (ii), (iv), inserted par. heading, designated first sentence as subpar. (A), inserted subpar. heading, and redesignated former subpars. (A) and (B) as cls. (i) and (ii), respectively, and designated concluding provisions as subpar. (B) and realigned margin.

Subsec. (c)(4)(A)(ii). Pub. L. 116–283, §1813(b)(2)(D)(iii), substituted "subsections (b), (c), and (d) of section 3206" for "paragraphs (2), (3), and (4) of section 2305(a)".

Subsec. (c)(4)(B). Pub. L. 116–283, §1813(b)(2)(D)(v), substituted "clauses (i) and (ii) of subparagraph (A)" for "subparagraphs (A) and (B)".

Subsec. (c)(5). Pub. L. 116–283, §1813(b)(2)(E), inserted heading and substituted "section 3303" for "section 2305(b)(4)".

2019—Subsec. (d)(1). Pub. L. 116–92 substituted "an indefinite" for "a indefinite".

2017—Subsec. (d). Pub. L. 115–91 substituted "If the contract value exceeds $4,000,000, the maximum number specified in the solicitation shall not exceed 5 unless—" and pars. (1) and (2) for "If the contract value exceeds $4,000,000, the maximum number specified in the solicitation shall not exceed 5 unless the head of the contracting activity, delegable to a level no lower than the senior contracting official within the contracting activity, approves the contracting officer's justification with respect to an individual solicitation that a number greater than 5 is in the Federal Government's interest. The contracting officer shall provide written documentation of how a maximum number exceeding 5 is consistent with the purposes and objectives of the two-phase selection procedures."

2014—Subsec. (d). Pub. L. 113–291 substituted "If the contract value exceeds $4,000,000, the maximum number specified in the solicitation shall not exceed 5 unless the head of the contracting activity, delegable to a level no lower than the senior contracting official within the contracting activity, approves the contracting officer's justification with respect to an individual solicitation that a number greater than 5 is in the Federal Government's interest. The contracting officer shall provide written documentation of how a maximum number exceeding 5 is consistent with the purposes and objectives of the two-phase selection procedures." for "The maximum number specified in the solicitation shall not exceed 5 unless the agency determines with respect to an individual solicitation that a specified number greater than 5 is in the Government's interest and is consistent with the purposes and objectives of the two-phase selection process."

2006—Subsec. (f)(2). Pub. L. 109–163, §2807(a), amended par. (2) generally. Prior to amendment, par. (2) read as follows: "Any military construction contract that provides for an accelerated design effort, as authorized by paragraph (1), shall include as a condition of the contract that the liability of the United States in a termination for convenience may not exceed the actual costs incurred as of the termination date."

Subsec. (f)(4). Pub. L. 109–163, §2807(b), substituted "2008" for "2007" wherever appearing.

2004—Subsec. (f). Pub. L. 108–375 added subsec. (f).

2003—Subsec. (c)(1). Pub. L. 108–178 substituted "chapter 11 of title 40" for "the Brooks Architect-Engineers Act (40 U.S.C. 541 et seq.)".

2002—Subsec. (a). Pub. L. 107–217 substituted "chapter 11 of title 40" for "the Brooks Architect-Engineers Act (40 U.S.C. 541 et seq.)".

1997—Subsec. (a). Pub. L. 105–85 substituted "(40 U.S.C." for "(41 U.S.C.".

Statutory Notes and Related Subsidiaries

Effective Date of 2021 Amendment

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 a note preceding section 3001 of this title.

Effective Date of 2003 Amendment

Amendment by Pub. L. 108–178 effective Aug. 21, 2002, see section 5 of Pub. L. 108–178, set out as a note under section 5334 of Title 5, Government Organization and Employees.

Effective Date

For effective date and applicability of section, see section 4401 of Pub. L. 104–106, set out as an Effective Date of 1996 Amendment note under section 2220 of this title.

§3242. Supplies: economic order quantities

(a) Quantity to Procure.—

(1) An agency referred to in section 3063 of this title shall procure supplies in such quantity as—

(A) will result in the total cost and unit cost most advantageous to the United States, where practicable; and

(B) does not exceed the quantity reasonably expected to be required by the agency.

(2) The Secretary of Defense shall take paragraph (1) into account in approving rates of obligation of appropriations under section 2204 of this title.

(b) Opinion of Offeror With Respect to Quantity to Be Procured.—Each solicitation for a contract for supplies shall, if practicable, include a provision inviting each offeror responding to the solicitation to state an opinion on whether the quantity of the supplies proposed to be procured is economically advantageous to the United States and, if applicable, to recommend a quantity or quantities which would be more economically advantageous to the United States. Each such recommendation shall include a quotation of the total price and the unit price for supplies procured in each recommended quantity.

(Added Pub. L. 98–525, title XII, §1233(a), Oct. 19, 1984, 98 Stat. 2600, §2384a; renumbered §3242 and amended Pub. L. 116–283, div. A, title XVIII, §1813(c), Jan. 1, 2021, 134 Stat. 4179; Pub. L. 117–81, div. A, title XVII, §1701(b)(5), Dec. 27, 2021, 135 Stat. 2133.)

Editorial Notes

Amendments

2021—Pub. L. 116–283, §1813(c), renumbered section 2384a of this title as this section.

Subsec. (a). Pub. L. 116–283, §1813(c)(1), as amended by Pub. L. 117–81, §1701(b)(5), inserted heading, in par. (1), substituted "section 3063" for "section 2303(a)" and reformatted subpars. (A) and (B) to add line breaks before each subpar. designation, and, in par. (2), realigned margin.

Subsec. (b). Pub. L. 116–283, §1813(c)(2), inserted heading.

Statutory Notes and Related Subsidiaries

Effective Date of 2021 Amendment

Amendment by Pub. L. 117–81 applicable as if included in the enactment of title XVIII of Pub. L. 116–283 as enacted, see section 1701(a)(2) of Pub. L. 117–81, set out in a note preceding section 3001 of this title and note below.

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 a note preceding section 3001 of this title.

Effective Date

Pub. L. 98–525, title XII, §1233(b), Oct. 19, 1984, 98 Stat. 2601, provided that: "The amendment made by subsection (a) [enacting this section] shall take effect at the end of the 180-day period beginning on the date of the enactment of this Act [Oct. 19, 1984]."

§3243. Encouragement of new competitors: qualification requirement

(a) Qualification Requirement Defined.—In this section, the term "qualification requirement" means a requirement for testing or other quality assurance demonstration that must be completed by an offeror before award of a contract.

(b) Actions Before Establishing Qualification Requirement.—Except as provided in subsection (c), the head of the agency shall, before establishing a qualification requirement—

(1) prepare a written justification stating the necessity for establishing the qualification requirement and specify why the qualification requirement must be demonstrated before contract award;

(2) specify in writing and make available to a potential offeror upon request all requirements which a prospective offeror, or its product, must satisfy in order to become qualified, such requirements to be limited to those least restrictive to meet the purposes necessitating the establishment of the qualification requirement;

(3) specify an estimate of the costs of testing and evaluation likely to be incurred by a potential offeror in order to become qualified;

(4) ensure that a potential offeror is provided, upon request and on a reimbursable basis, a prompt opportunity to demonstrate its ability to meet the standards specified for qualification using qualified personnel and facilities of the agency concerned or of another agency obtained through interagency agreement, or under contract, or other methods approved by the agency (including use of approved testing and evaluation services not provided under contract to the agency);

(5) if testing and evaluation services are provided under contract to the agency for the purposes of paragraph (4), provide to the extent possible that such services be provided by a contractor who is not expected to benefit from an absence of additional qualified sources and who shall be required in such contract to adhere to any restriction on technical data asserted by the potential offeror seeking qualification; and

(6) ensure that a potential offeror seeking qualification is promptly informed as to whether qualification is attained and, in the event qualification is not attained, is promptly furnished specific information why qualification was not attained.

(c) Applicability, Waiver Authority, and Referral of Offers.—

(1) Applicability.—Subsection (b) does not apply with respect to a qualification requirement established by statute or administrative action before October 19, 1984, unless such requirement is a qualified products list.

(2) Waiver Authority.—

(A) Submission of determination of unreasonableness.—Except as provided in subparagraph (C), if it is unreasonable to specify the standards for qualification which a prospective offeror or its product must satisfy, a determination to that effect shall be submitted to the advocate for competition of the procuring activity responsible for the purchase of the item subject to the qualification requirement.

(B) Authority to grant waiver.—After considering any comments of the advocate for competition reviewing such determination, the head of the purchasing office may waive the requirements of clauses (2) through (6) of subsection (b) for up to two years with respect to the item subject to the qualification requirement.

(C) Inapplicability to qualified products list.—The waiver authority provided in this paragraph does not apply with respect to a qualified products list.

(3) Submission and consideration of offer not to be denied in certain cases.—A potential offeror may not be denied the opportunity to submit and have considered an offer for a contract solely because the potential offeror (A) is not on a qualified bidders list, qualified manufacturers list, or qualified products list, or (B) has not been identified as meeting a qualification requirement established after October 19, 1984, if the potential offeror can demonstrate to the satisfaction of the contracting officer (or, in the case of a contract for the procurement of an aviation critical safety item or ship critical safety item, the head of the design control activity for such item) that the potential offeror or its product meets the standards established for qualification or can meet such standards before the date specified for award of the contract.

(4) Referral to small business administration.—Nothing contained in this subsection requires the referral of an offer to the Small Business Administration pursuant to section 8(b)(7) of the Small Business Act (15 U.S.C. 637(b)(7)) if the basis for the referral is a challenge by the offeror to either the validity of the qualification requirement or the offeror's compliance with such requirement.

(5) Delay of procurement not required.—The head of an agency need not delay a proposed procurement in order to comply with subsection (b) or in order to provide a potential offeror with an opportunity to demonstrate its ability to meet the standards specified for qualification.

(6) Requirements before enforcement of certain lists.—The requirements of subsection (b) also apply before enforcement of any qualified products list, qualified manufacturers list, or qualified bidders list.

(d) Fewer Than 2 Actual Manufacturers.—

(1) Solicitation and testing of additional sources or products.—If the number of qualified sources or qualified products available to compete actively for an anticipated future requirement is fewer than two actual manufacturers or the products of two actual manufacturers, respectively, the head of the agency concerned shall—

(A) periodically publish notice in the Commerce Business Daily soliciting additional sources or products to seek qualification, unless the contracting officer determines that such publication would compromise national security; and

(B) subject to paragraph (2), bear the cost of conducting the specified testing and evaluation (excluding the costs associated with producing the item or establishing the production, quality control, or other system to be tested and evaluated) for a small business concern or a product manufactured by a small business concern which has met the standards specified for qualification and which could reasonably be expected to compete for a contract for that requirement.

(2) Certification when agency may bear cost.—Costs may be borne under paragraph (1)(B) only if the head of the agency determines that such additional qualified sources or products are likely to result in cost savings from increased competition for future requirements sufficient to amortize the costs incurred by the agency within a reasonable period of time considering the duration and dollar value of anticipated future requirements.

(3) Certification required.—The head of an agency shall require a prospective contractor requesting the United States to bear testing and evaluation costs under paragraph (1)(B) to certify as to its status as a small business concern under section 3 of the Small Business Act (15 U.S.C. 632).

(e) Examination and Revalidation of Qualification Requirement.—Within seven years after the establishment of a qualification requirement under subsection (b) or within seven years following an agency's enforcement of a qualified products list, qualified manufacturers list, or qualified bidders list, any such qualification requirement shall be examined and revalidated in accordance with the requirements of subsection (b). The preceding sentence does not apply in the case of a qualification requirement for which a waiver is in effect under subsection (c)(2).

(f) Restriction on Enforcement.—Except in an emergency as determined by the head of the agency, whenever the head of the agency determines not to enforce a qualification requirement for a solicitation, the agency may not thereafter enforce that qualification requirement unless the agency complies with the requirements of subsection (b).

(g) Definitions.—In this section:

(1) The term "aviation critical safety item" means a part, an assembly, installation equipment, launch equipment, recovery equipment, or support equipment for an aircraft or aviation weapon system if the part, assembly, or equipment contains a characteristic any failure, malfunction, or absence of which could cause a catastrophic or critical failure resulting in the loss of or serious damage to the aircraft or weapon system, an unacceptable risk of personal injury or loss of life, or an uncommanded engine shutdown that jeopardizes safety.

(2) The term "ship critical safety item" means any ship part, assembly, or support equipment containing a characteristic the failure, malfunction, or absence of which could cause a catastrophic or critical failure resulting in loss of or serious damage to the ship or unacceptable risk of personal injury or loss of life.

(3) The term "design control activity", with respect to an aviation critical safety item or ship critical safety item, means the systems command of a military department that is specifically responsible for ensuring the airworthiness of an aviation system or equipment, or the seaworthiness of a ship or ship equipment, in which such item is to be used.

(Added Pub. L. 98–525, title XII, §1216(a), Oct. 19, 1984, 98 Stat. 2593, §2319; amended Pub. L. 100–26, §7(d)(5), (i)(4), (k)(3), Apr. 21, 1987, 101 Stat. 281, 282, 284; Pub. L. 108–136, div. A, title VIII, §802(d), Nov. 24, 2003, 117 Stat. 1541; Pub. L. 109–364, div. A, title I, §130(d), Oct. 17, 2006, 120 Stat. 2110; renumbered §3243 and amended Pub. L. 116–283, div. A, title XVIII, §1813(d), Jan. 1, 2021, 134 Stat. 4179.)

Editorial Notes

Amendments

2021—Pub. L. 116–283, §1813(d)(1), substituted "Encouragement of new competitors: qualification requirement" for "Encouragement of new competitors" in section catchline.

Pub. L. 116–283, §1813(d), renumbered section 2319 of this title as this section.

Subsec. (a). Pub. L. 116–283, §1813(d)(2), inserted heading.

Subsec. (b). Pub. L. 116–283, §1813(d)(3)(A), inserted heading.

Subsec. (b)(5). Pub. L. 116–283, §1813(d)(3)(B), substituted "paragraph (4)" for "clause (4)".

Subsec. (c). Pub. L. 116–283, §1813(d)(4)(A), inserted heading.

Subsec. (c)(1). Pub. L. 116–283, §1813(d)(4)(A), inserted heading and struck out "of this section" after "Subsection (b)".

Subsec. (c)(2). Pub. L. 116–283, §1813(d)(4)(C)(i), inserted heading and realigned margin.

Subsec. (c)(2)(A). Pub. L. 116–283, §1813(d)(4)(C)(i), inserted heading and substituted "Except as provided in subparagraph (C)," for "Except as provided in subparagraph (B),".

Subsec. (c)(2)(B). Pub. L. 116–283, §1813(d)(4)(C)(iii), (iv), redesignated second sentence of subsec. (c)(2)(A) as (B) and inserted heading. Former subpar. (B) redesignated (C).

Subsec. (c)(2)(B), (C). Pub. L. 116–283, §1813(d)(4)(C)(ii), (v), redesignated subpar. (B) as (C) and inserted heading.

Subsec. (c)(3) to (6). Pub. L. 116–283, §1813(d)(4)(B), (D)–(G), inserted headings and realigned margins.

Subsec. (d). Pub. L. 116–283, §1813(d)(5)(A), inserted heading.

Subsec. (d)(1). Pub. L. 116–283, §1813(d)(5)(A), (F), inserted heading and realigned margins of subpars. (A) and (B).

Subsec. (d)(1)(B). Pub. L. 116–283, §1813(d)(5)(C), inserted "subject to paragraph (2)," before "bear the cost of" and substituted "that requirement." for "that requirement, but such costs may be borne". Remainder of subpar. (B) redesignated par. (2).

Subsec. (d)(2). Pub. L. 116–283, §1813(d)(5)(D), (E), designated text of par. (1)(B) beginning with "only if the head" as (2), inserted heading, and inserted "Costs may be borne under paragraph (1)(B)" at beginning. Former par. (2) redesignated (3).

Subsec. (d)(3). Pub. L. 116–283, §1813(d)(5)(B), redesignated par. (2) as (3), inserted heading, and realigned margin.

Subsecs. (e), (f). Pub. L. 116–283, §1813(d)(6), (7), inserted headings.

2006—Subsec. (c)(3). Pub. L. 109–364, §130(d)(1), inserted "or ship critical safety item" after "aviation critical safety item".

Subsec. (g)(2), (3). Pub. L. 109–364, §130(d)(2), added par. (2), redesignated former par. (2) as (3), inserted "or ship critical safety item" after "aviation critical safety item" and ", or the seaworthiness of a ship or ship equipment," after "or equipment", and substituted "such item" for "the item".

2003—Subsec. (c)(3). Pub. L. 108–136, §802(d)(1), inserted "(or, in the case of a contract for the procurement of an aviation critical safety item, the head of the design control activity for such item)" after "the contracting officer".

Subsec. (g). Pub. L. 108–136, §802(d)(2), added subsec. (g).

1987—Subsec. (a). Pub. L. 100–26, §7(k)(3), inserted "the term" after "In this section,".

Subsec. (c)(1), (3). Pub. L. 100–26, §7(i)(4), substituted "October 19, 1984," for "the date of the enactment of the Defense Procurement Reform Act of 1984".

Subsec. (c)(4). Pub. L. 100–26, §7(d)(5)(A), inserted "(15 U.S.C. 637(b)(7))" after "Small Business Act".

Subsec. (d)(2). Pub. L. 100–26, §7(d)(5)(B), inserted "(15 U.S.C. 632)" after "Small Business Act".

Statutory Notes and Related Subsidiaries

Effective Date of 2021 Amendment

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 a note preceding section 3001 of this title.

Effective Date

Pub. L. 98–525, title XII, §1216(c)(2), Oct. 19, 1984, 98 Stat. 2599, provided that: "Sections 2319 [now 10 U.S.C. 3243], [former] 2320, and [former] 2321 of title 10, United States Code (as added by subsection (a)), shall apply with respect to solicitations issued after the end of the one-year period beginning on the date of the enactment of this Act [Oct. 19, 1984]."

§3247. Contracts: regulations for bids

(a) The Secretary of Defense may—

(1) prescribe regulations for the preparation, submission, and opening of bids for contracts; and

(2) require that a bid be accompanied by a written guaranty, signed by one or more responsible persons, undertaking that the bidder, if his bid is accepted, will, within the time prescribed by the Secretary or other officer authorized to make the contract, make a contract and furnish a bond with good and sufficient sureties for the performance of the contract.

(b) If a bidder, after being notified of the acceptance of his bid, fails within the time prescribed under subsection (a)(2) to enter into a contract and furnish the prescribed bond, the Secretary concerned or other authorized officer shall—

(1) contract with another person; and

(2) charge against the defaulting bidder and his guarantors the difference between the amount specified by the bidder in his bid and the amount for which a contract is made with the other person, this difference being immediately recoverable by the United States for the use of the military department concerned in an action against the bidder and his guarantors, jointly or severally.

(c) Proceedings under this section are subject to regulations under section 121 of title 40, unless exempted therefrom under section 501(a)(2) of title 40.

(Aug. 10, 1956, ch. 1041, 70A Stat. 136, §2381; Pub. L. 98–525, title XIV, §1405(35), Oct. 19, 1984, 98 Stat. 2624; Pub. L. 103–355, title I, §1507, Oct. 13, 1994, 108 Stat. 3298; Pub. L. 107–217, §3(b)(6), Aug. 21, 2002, 116 Stat. 1295; renumbered §3247, Pub. L. 116–283, div. A, title XVIII, §1813(e), Jan. 1, 2021, 134 Stat. 4181.)

Historical and Revision Notes

Revised section	Source (U.S. Code)	Source (Statutes at Large)
2381(a)     2381(b)	5:218 (1st sentence, less 1st 16 words; and 2d sentence). 5:218 (less 1st and 2d sentences).	Apr. 10, 1878, ch. 58, 20 Stat. 36; Mar. 3, 1883, ch. 120, 22 Stat. 487; Oct. 31, 1951, ch. 654, §2(4), 65 Stat. 706.
2381(c)	5:218 (1st 16 words of 1st sentence) [applicability of 5:218 extended to Navy by 5:412b and 41:161 (1st sentence)].	Feb. 19, 1948, ch. 65, §12 (1st sentence), 62 Stat. 26.

In subsection (a)(1), the word "may" is substituted for the words "is authorized to". The words "rules and * * * to be observed" are omitted as surplusage.

In subsection (a)(2), the word "undertaking" is substituted for the words "to the effect that he or they undertake". The words "make a contract" are inserted for clarity. The words "in the premises" are omitted as surplusage. The words "for the performance of the contract" are substituted for the words "to furnish the supplies proposed or to perform the service required".

In subsection (b), the word "duly" is omitted as surplusage. The words "with good and sufficient security for the proper fulfillment of its terms" are omitted as covered by subsection (a)(2). The words "the prescribed" are inserted before the word "bond".

Subsection (b)(1) is substituted for the words "proceed to contract with some other person to furnish the supplies or perform the services required".

In subsection (b)(2) the word "charge" is substituted for the words "forthwith cause * * * to be charged". The words "a contract is made with the other person" are substituted for the words "he may have contracted with another party to furnish the supplies or perform the service for the whole period of the proposal". The words "guarantor or" are omitted as surplusage. The words "this difference being" are substituted for the words "and the sum may be". The words "of debt" are omitted, since that action no longer exists. The words "the bidder and his guarantors, jointly or severally" are substituted for the words "either or all of such persons".

In subsection (c), the words "Proceedings under this section are" are inserted for clarity. The words "unless exempted therefrom under section 481(a) of that title" are inserted to preserve the possibility of exemption of proceedings under the revised section from the provisions of the Federal Property and Administrative Services Act of 1949, as amended.

Editorial Notes

Amendments

2021—Pub. L. 116–283 renumbered section 2381 of this title as this section.

2002—Subsec. (c). Pub. L. 107–217 substituted "section 121 of title 40" for "section 205 of the Federal Property and Administrative Services Act of 1949 (40 U.S.C. 486)" and "section 501(a)(2) of title 40" for "section 201(a) of that Act (40 U.S.C. 481(a))".

1994—Subsec. (a). Pub. L. 103–355 substituted "The Secretary of Defense may—

"(1) prescribe regulations for the preparation, submission, and opening of bids for contracts; and"

for "The Secretary of a military department may—

"(1) prescribe regulations for the preparation, submission, and opening of bids for contracts with that department; and".

1984—Subsec. (c). Pub. L. 98–525 substituted "section 205 of the Federal Property and Administrative Services Act of 1949 (40 U.S.C. 486)" for "section 486 of title 40" and "section 201(a) of that Act (40 U.S.C. 481(a))" for "section 481(a) of this title".

Statutory Notes and Related Subsidiaries

Effective Date of 2021 Amendment

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 a note preceding section 3001 of this title.

§3249. Advocates for competition

Each advocate for competition designated pursuant to section 1705(a) of title 41 for an agency named in section 3063 of this title shall be a general or flag officer if a member of the armed forces or in a position classified above GS–15 pursuant to section 5108 of title 5, if a civilian employee and shall be designated to serve for a minimum of two years.

(Added Pub. L. 98–525, title XII, §1216(a), Oct. 19, 1984, 98 Stat. 2593, §2318; amended Pub. L. 100–26, §7(d)(4), Apr. 21, 1987, 101 Stat. 281; Pub. L. 102–25, title VII, §701(f)(1), Apr. 6, 1991, 105 Stat. 115; Pub. L. 103–355, title I, §1031, Oct. 13, 1994, 108 Stat. 3260; Pub. L. 111–350, §5(b)(17), Jan. 4, 2011, 124 Stat. 3843; Pub. L. 112–239, div. A, title X, §1076(f)(24), Jan. 2, 2013, 126 Stat. 1953; Pub. L. 115–232, div. A, title VIII, §811(d), Aug. 13, 2018, 132 Stat. 1845; renumbered §3249 and amended Pub. L. 116–283, div. A, title XVIII, §1813(f), Jan. 1, 2021, 134 Stat. 4181.)

Editorial Notes

Prior Provisions

A prior section 3251 was renumbered section 7131 of this title.

Amendments

2021—Pub. L. 116–283, §1813(f), renumbered section 2318 of this title as this section and substituted "section 3063" for "section 2303(a)".

2018—Pub. L. 115–232 substituted "Each advocate for competition designated pursuant to section 1705(a) of title 41 for" for "(b) Each advocate for competition of" and "in a position classified above GS–15 pursuant to section 5108 of title 5" for "a grade GS–16 or above under the General Schedule (or in a comparable or higher position under another schedule)" and struck out subsec. (a) which related to designation of an officer or employee of the Defense Logistics Agency to serve as the advocate for competition of the agency.

2013—Subsec. (a)(2). Pub. L. 112–239 substituted "subsections (b) and (c) of section 1705" for "section 1705(b) and (c)".

2011—Subsec. (a)(1). Pub. L. 111–350, §5(b)(17)(A), substituted "section 1705(a) of title 41" for "section 20(a) of the Office of Federal Procurement Policy Act (41 U.S.C. 418(a))".

Subsec. (a)(2). Pub. L. 111–350, §5(b)(17)(B), substituted "section 1705(b) and (c) of title 41" for "sections 20(b) and 20(c) of the Office of Federal Procurement Policy Act (41 U.S.C. 418(b), (c))".

1994—Subsec. (c). Pub. L. 103–355 struck out subsec. (c) which read as follows: "Each advocate for competition of an agency of the Department of Defense shall transmit to the Secretary of Defense a report describing his activities during the preceding year. The report of each advocate for competition shall be included in the annual report of the Secretary of Defense required by section 23 of the Office of Federal Procurement Policy Act (41 U.S.C. 419), in the form in which it was submitted to the Secretary."

1991—Subsec. (c). Pub. L. 102–25 substituted "section 23" for "section 21".

1987—Subsec. (a)(1). Pub. L. 100–26, §7(d)(4)(A), inserted "(41 U.S.C. 418(a))" after "Policy Act".

Subsec. (a)(2). Pub. L. 100–26, §7(d)(4)(B), inserted "(41 U.S.C. 418(b), (c))" after "Policy Act".

Subsec. (c). Pub. L. 100–26, §7(d)(4)(C), inserted "(41 U.S.C. 419)" after "Policy Act".

Statutory Notes and Related Subsidiaries

Effective Date of 2021 Amendment

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 a note preceding section 3001 of this title.

Effective Date

Pub. L. 98–525, title XII, §1216(c)(1), Oct. 19, 1984, 98 Stat. 2599, provided that: "Section 2318 of title 10, United States Code [now 10 U.S.C. 3249] (as added by subsection (a)), shall take effect on April 1, 1985."

§3252. Requirements for information relating to supply chain risk

(a) Authority.—Subject to subsection (b), the head of a covered agency may—

(1) carry out a covered procurement action; and

(2) limit, notwithstanding any other provision of law, in whole or in part, the disclosure of information relating to the basis for carrying out a covered procurement action.

(b) Determination and Notification.—The head of a covered agency may exercise the authority provided in subsection (a) only after—

(1) consulting with procurement or other relevant officials of the covered agency;

(2) making a determination in writing, in unclassified or classified form, that—

(A) use of the authority in subsection (a)(1) is necessary to protect national security by reducing supply chain risk;

(B) less intrusive measures are not reasonably available to reduce such supply chain risk; and

(C) in a case where the head of the covered agency plans to limit disclosure of information under subsection (a)(2), the risk to national security due to the disclosure of such information outweighs the risk due to not disclosing such information; and

(3) providing a classified or unclassified notice of the determination made under paragraph (2) to the appropriate congressional committees, which notice shall include—

(A) a summary of the risk assessment that serves as the basis for the written determination required by paragraph (2); and

(B) a summary of the basis for the determination, including a discussion of less intrusive measures that were considered and why they were not reasonably available to reduce supply chain risk.

(c) Limitation on Disclosure.—If the head of a covered agency has exercised the authority provided in subsection (a)(2) to limit disclosure of information—

(1) no action undertaken by the agency head under such authority shall be subject to review in a bid protest before the Government Accountability Office or in any Federal court; and

(2) the agency head shall—

(A) notify appropriate parties of a covered procurement action and the basis for such action only to the extent necessary to effectuate the covered procurement action;

(B) notify other Department of Defense components or other Federal agencies responsible for procurements that may be subject to the same or similar supply chain risk, in a manner and to the extent consistent with the requirements of national security; and

(C) ensure the confidentiality of any such notifications.

(d) Definitions.—In this section:

(1) Head of a covered agency.—The term "head of a covered agency" means each of the following:

(A) The Secretary of Defense.

(B) The Secretary of the Army.

(C) The Secretary of the Navy.

(D) The Secretary of the Air Force.

(2) Covered procurement action.—The term "covered procurement action" means any of the following actions, if the action takes place in the course of conducting a covered procurement:

(A) The exclusion of a source that fails to meet qualification standards established in accordance with the requirements of section 3243 of this title for the purpose of reducing supply chain risk in the acquisition of covered systems.

(B) The exclusion of a source that fails to achieve an acceptable rating with regard to an evaluation factor providing for the consideration of supply chain risk in the evaluation of proposals for the award of a contract or the issuance of a task or delivery order.

(C) The decision to withhold consent for a contractor to subcontract with a particular source or to direct a contractor for a covered system to exclude a particular source from consideration for a subcontract under the contract.

(3) Covered procurement.—The term "covered procurement" means—

(A) a source selection for a covered system or a covered item of supply involving either a performance specification, as provided in section 3206(a)(3)(B) of this title, or an evaluation factor, as provided in section 3206(b)(1) of this title, relating to supply chain risk;

(B) the consideration of proposals for and issuance of a task or delivery order for a covered system or a covered item of supply, as provided in section 3406(d)(3) of this title, where the task or delivery order contract concerned includes a contract clause establishing a requirement relating to supply chain risk; or

(C) any contract action involving a contract for a covered system or a covered item of supply where such contract includes a clause establishing requirements relating to supply chain risk.

(4) Supply chain risk.—The term "supply chain risk" means the risk that an adversary may sabotage, maliciously introduce unwanted function, or otherwise subvert the design, integrity, manufacturing, production, distribution, installation, operation, or maintenance of a covered system so as to surveil, deny, disrupt, or otherwise degrade the function, use, or operation of such system.

(5) Covered system.—The term "covered system" means a national security system, as that term is defined in section 3552(b)(6) of title 44.

(6) Covered item of supply.—The term "covered item of supply" means an item of information technology (as that term is defined in section 11101 of title 40) that is purchased for inclusion in a covered system, and the loss of integrity of which could result in a supply chain risk for a covered system.

(7) Appropriate congressional committees.—The term "appropriate congressional committees" means—

(A) in the case of a covered system included in the National Intelligence Program or the Military Intelligence Program, the Select Committee on Intelligence of the Senate, the Permanent Select Committee on Intelligence of the House of Representatives, and the congressional defense committees; and

(B) in the case of a covered system not otherwise included in subparagraph (A), the congressional defense committees.

(Added Pub. L. 115–232, div. A, title VIII, §881(a)(1), Aug. 13, 2018, 132 Stat. 1910, §2339a; amended Pub. L. 116–92, div. A, title XVII, §1731(a)(43), Dec. 20, 2019, 133 Stat. 1814; renumbered §3252 and amended Pub. L. 116–283, div. A, title X, §1081(a)(36), title XVIII, §1813(g), Jan. 1, 2021, 134 Stat. 3872, 4181; Pub. L. 118–159, div. A, title VIII, §841, Dec. 23, 2024, 138 Stat. 1990.)

Editorial Notes

Prior Provisions

A prior section 3252, added Pub. L. 110–181, div. A, title VI, §671(a)(1), Jan. 28, 2008, 122 Stat. 181; amended Pub. L. 110–417, [div. A], title VI, §615(b), Oct. 14, 2008, 122 Stat. 4485; Pub. L. 111–84, div. A, title VI, §616(2), Oct. 28, 2009, 123 Stat. 2354; Pub. L. 111–383, div. A, title VI, §616(2), Jan. 7, 2011, 124 Stat. 4238, related to bonus to encourage Army personnel to refer persons for enlistment in the Army, prior to repeal by Pub. L. 114–92, div. A, title VI, §618(a), Nov. 25, 2015, 129 Stat. 840.

Another prior section 3252, act Aug. 10, 1956, ch. 1041, 70A Stat. 177, provided that temporary enlistments could be made only in the Army without specification of component, prior to repeal by Pub. L. 90–235, §2(a)(2)(B), Jan. 2, 1968, 81 Stat. 756.

A prior section 3253, acts Aug. 10, 1956, ch. 1041, 70A Stat. 177; Pub. L. 87–143, §1(1), Aug. 17, 1961, 75 Stat. 364; Pub. L. 90–235, §2(a)(2)(A), Jan. 2, 1968, 81 Stat. 756; Pub. L. 96–513, title V, §512(3), Dec. 12, 1980, 94 Stat. 2929, provided that, in peace time, Army enlistment was available only to citizens and persons lawfully admitted to the United States for permanent residence, prior to repeal by Pub. L. 109–163, div. A, title V, §542(b)(1), Jan. 6, 2006, 119 Stat. 3253.

Prior sections 3254 to 3256 were repealed by Pub. L. 90–235, §2(a)(2)(B), Jan. 2, 1968, 81 Stat. 756.

Section 3254, act Aug. 10, 1956, ch. 1041, 70A Stat. 178, provided for temporary enlistments in the Army during war or emergency.

Section 3255, act Aug. 10, 1956, ch. 1041, 70A Stat. 178, provided for recruiting campaigns to obtain enlistments in the Regular Army.

Section 3256, act Aug. 10, 1956, ch. 1041, 70A Stat. 178, set forth qualifications for and term of enlistments in the Regular Army and the grade in which such enlistments were made.

A prior section 3258 was renumbered section 7138 of this title.

Prior sections 3259 to 3261 were repealed by Pub. L. 103–337, div. A, title XVI, §§1662(b)(3), 1691, Oct. 5, 1994, 108 Stat. 2990, 3026, effective Dec. 1, 1994.

Section 3259, acts Aug. 10, 1956, ch. 1041, 70A Stat. 179; Sept. 29, 1988, Pub. L. 100–456, div. A, title XII, §1234(a)(1), 102 Stat. 2059, related to transfers in grade of enlisted members of Army National Guard of United States to Army Reserve. See section 12105 of this title.

Section 3260, act Aug. 10, 1956, ch. 1041, 70A Stat. 179, provided that enlisted members of Army National Guard of United States are transferred to Army Reserve upon withdrawal as members of Army National Guard. See section 12106 of this title.

Section 3261, acts Aug. 10, 1956, ch. 1041, 70A Stat. 179; Sept. 2, 1958, Pub. L. 85–861, §33(a)(20), 72 Stat. 1565; Oct. 4, 1961, Pub. L. 87–378, §3, 75 Stat. 808, related to enlistment in Army National Guard of United States. See section 12107 of this title.

A prior section 3262 was renumbered section 7142 of this title.

Another prior section 3262, acts Aug. 10, 1956, ch. 1041, 70A Stat. 180; Sept. 2, 1958, Pub. L. 85–861, §1(71), 72 Stat. 1464, provided for extension of enlistment of members of the Army needing medical care or hospitalization, prior to repeal by Pub. L. 90–235, §2(a)(2)(B), Jan. 2, 1968, 81 Stat. 756.

A prior section 3263, Pub. L. 85–861, §1(71)(B), Sept. 2, 1958, 72 Stat. 1465; Pub. L. 87–649, §14c(4), Sept. 7, 1962, 76 Stat. 501, provided for voluntary extension of enlistments in the Army, prior to repeal by Pub. L. 90–235, §2(a)(2)(B), Jan. 2, 1968, 81 Stat. 756.

A prior section 3264, added Pub. L. 107–107, div. A, title V, §541(a)(1), Dec. 28, 2001, 115 Stat. 1109, related to an 18-month enlistment pilot program to increase participation of prior service persons in Selected Reserve and to provide assistance in building pool of participants in Individual Ready Reserve, prior to repeal by Pub. L. 107–314, div. A, title V, §531(c), Dec. 2, 2002, 116 Stat. 2544.

Prior sections 3281 to 3283 were renumbered sections 7151 to 7153 of this title, respectively.

Prior sections 3284 to 3300 were repealed by Pub. L. 96–513, title II, §204, title VII, §701, Dec. 12, 1980, 94 Stat. 2880, 2955, effective Sept. 15, 1981.

Section 3284, act Aug. 10, 1956, ch. 1041, 70A Stat. 181, provided that appointments in commissioned grades in Regular Army be made by President, by and with the advice and consent of Senate. See section 531 of this title.

Section 3285, acts Aug. 10, 1956, ch. 1041, 70A Stat. 181; Sept. 2, 1958, Pub. L. 85–861, §1(72), 72 Stat. 1465, prescribed eligibility requirements for original appointment in a commissioned grade in Regular Army, except in Medical Corps or Dental Corps and except a graduating cadet. See section 532 of this title.

Section 3286, acts Aug. 10, 1956, ch. 1041, 70A Stat. 181; Sept. 2, 1958, Pub. L. 85–861, §1(73), 72 Stat. 1465, prescribed age limitations for original appointment in a commissioned grade in Regular Army, except in Medical Corps, Dental Corps, Army Nurse Corps, or Army Medical Specialist Corps. See section 532 of this title.

Section 3287, acts Aug. 10, 1956, ch. 1041, 70A Stat. 182; Sept. 2, 1958, Pub. L. 85–861, §1(74), 72 Stat. 1466, provided service credit, in the discretion of the Secretary of the Army, for a person originally appointed in a commissioned grade in the Regular Army, except the Medical Corps, Dental Corps, Army Nurse Corps, or Army Medical Specialist Corps, for the purpose of determining grade, position on a promotion list, seniority in his grade in the Regular Army, and eligibility for promotion, with appointment and service credit restrictions on persons who were cadets at the United States Military, Naval, or Air Force Academies but were not graduated, and a disallowance of service credits under this section for persons who graduated from one of these Academies. See section 533 of this title.

Section 3288, acts Aug. 10, 1956, ch. 1041, 70A Stat. 183; Aug. 21, 1957, Pub. L. 85–155, title I, §101(7), 71 Stat. 376; Sept. 2, 1958, Pub. L. 85–861, §1(75), 72 Stat. 1466, provided for determination of grade of a person originally appointed as a commissioned officer in Regular Army, except in Medical Corps, Dental Corps, Army Nurse Corps, or Army Medical Specialist Corps. See section 533 of this title.

Section 3289, act Aug. 10, 1956, ch. 1041, 70A Stat. 183, provided that no person be originally appointed as a first lieutenant in Regular Army in Medical Corps until he passes an examination of his professional fitness before an examining board composed of at least three officers of Medical Corps designated by Secretary of the Army. See section 532 of this title.

Section 3290, act Aug. 10, 1956, ch. 1041, 70A Stat. 183, provided that an original appointment in Regular Army in Medical Service Corps be made only in grade of second lieutenant and from members of Regular Army, reserves not in an inactive status, or graduates of an accredited school of pharmacy or optometry, or of a school or college who hold a degree in a science allied to medicine or any other degree approved by Surgeon General. See section 532 of this title.

Section 3291, acts Aug. 10, 1956, ch. 1041, 70A Stat. 183; Aug. 21, 1957, Pub. L. 85–155, title I, §101(8), 71 Stat. 376; Sept. 30, 1966, Pub. L. 89–609, §1(4), 80 Stat. 852, prescribed eligibility requirements for an original appointment in Regular Army in Army Nurse Corps or Army Medical Specialist Corps in grade of second lieutenant, first lieutenant, and captain and provided for determination of years of service creditable for promotion. See section 532 of this title.

Section 3292, act Aug. 10, 1956, ch. 1041, 70A Stat. 184, provided that original appointments in commissioned grades in Regular Army in Judge Advocate General's Corps be made from officers of Regular Army in other branches, reserve commissioned officers assigned to Judge Advocate General's Corps, or qualified civilian graduates of accredited law schools. See section 532 of this title.

Section 3293, act Aug. 10, 1956, ch. 1041, 70A Stat. 184, provided that no person in civil life be originally appointed as a chaplain in Regular Army unless he has passed an examination prescribed by President as to his morale, mental, and physical qualifications. See section 532 of this title.

Section 3294, acts Aug. 10, 1956, ch. 1041, 70A Stat. 184; Sept. 2, 1958, Pub. L. 85–861, §1(77), 72 Stat. 1467, provided that original appointments in Regular Army be made in grades of first lieutenant through colonel in Medical Corps or Dental Corps as the Army requires, from qualified doctors of medicine, osteopathy, or dentistry who are citizens of the United States and have such other qualifications as the Secretary of the Army prescribes, with specific additional eligibility requirements for a doctor of osteopathy, and that officers so appointed receive service credit for determining grade, position on a promotion list, seniority in grade in Regular Army, and eligibility for promotion. See section 532 of this title.

Section 3295, acts Aug. 10, 1956, ch. 1041, 70A Stat. 184; Sept. 2, 1958, Pub. L. 85–861, §1(78), 72 Stat. 1467, provided for determination of the place on a promotion list of name of each person who is originally appointed in a commissioned grade in Regular Army and whose name is to be carried on a promotion list, other than persons appointed in Medical Corps, Dental Corps, Army Nurse Corps, or Army Medical Specialist Corps. See section 624 of this title.

Section 3296, acts Aug. 10, 1956, ch. 1041, 70A Stat. 184; Aug. 21, 1957, Pub. L. 85–155, title I, §101(10), 71 Stat. 377; Aug. 6, 1958, Pub. L. 85–600, §1(5), 72 Stat. 522; June 4, 1968, Pub. L. 90–329, 82 Stat. 170; Oct. 20, 1978, Pub. L. 95–485, title VIII, §820(d)(2), 92 Stat. 1627; Oct. 30, 1978, Pub. L. 95–551, §2, 92 Stat. 2069, provided for promotion lists in Regular Army for all commissioned officers in grades below brigadier general on active list, with exceptions, which officers are known as "promotion-list officers", a separate list for Chaplains and each of the several branches of Army Medical Department, and determination of place on list upon transfer or promotion. See section 624 of this title.

Section 3297, acts Aug. 10, 1956, ch. 1041, 70A Stat. 185; Aug. 21, 1957, Pub. L. 85–155, title I, §101(11), 71 Stat. 377; July 12, 1960, Pub. L. 86–616, §1(1), 74 Stat. 386; Oct. 20, 1978, Pub. L. 95–485, title VIII, §820(d)(3), 92 Stat. 1627, provided for selection boards to recommend promotion-list officers and brigadier generals of Regular Army for promotion in Regular Army. See section 611 et seq. of this title.

Section 3298, acts Aug. 10, 1956, ch. 1041, 70A Stat. 185; Aug. 21, 1957, Pub. L. 85–155, title I, §101(12), 71 Stat. 377; Nov. 8, 1967, Pub. L. 90–130, §1(10)(A), 81 Stat. 375, provided for promotion from grade of second lieutenant to first lieutenant after 3 years of service, discharge under section 3814 of this title upon failure of promotion, and filling vacancies for first lieutenants with second lieutenants prior to completion of 3 years of service. See section 630 of this title.

Section 3299, acts Aug. 10, 1956, ch. 1041, 70A Stat. 186; Aug. 21, 1957, Pub. L. 85–155, title I, §101(13), 71 Stat. 377; Sept. 2, 1958, Pub. L. 85–861, §33(a)(21), 72 Stat. 1565; Nov. 8, 1967, Pub. L. 90–130, §1(10)(B), 81 Stat. 375, provided that promotion-list officers be promoted to regular grades of captain, major, and lieutenant colonel, after specified length of service or without regard to length of service in view of actual or anticipated vacancies if Secretary of the Army so directs, or be eliminated from active list under section 3303 of this title and a promotion-list officer who has twice been considered and not recommended for promotion to any one regular grade not be again considered for promotion under this section. See sections 631 and 632 of this title.

Section 3300, acts Aug. 10, 1956, ch. 1041, 70A Stat. 186; July 12, 1960, Pub. L. 86–616, §1(2), 74 Stat. 386, provided for selection board procedure when promotion-list officers in regular grade of first lieutenant, captain, or major are to be considered for promotion under section 3299 of this title. See section 611 et seq. of this title.

Amendments

2024—Subsec. (b)(1). Pub. L. 118–159, §841(1)(A), amended par. (1) generally. Prior to amendment, par. (1) read as follows: "obtaining a joint recommendation by the Under Secretary of Defense for Acquisition and Sustainment and the Chief Information Officer of the Department of Defense, on the basis of a risk assessment by the Under Secretary of Defense for Intelligence and Security, that there is a significant supply chain risk to a covered system;".

Subsec. (b)(2). Pub. L. 118–159, §841(1)(B), struck out "with the concurrence of the Under Secretary of Defense for Acquisition and Sustainment," after "in unclassified or classified form," in introductory provisions.

Subsec. (b)(3)(A). Pub. L. 118–159, §841(1)(C)(i), amended subpar. (A) generally. Prior to amendment, subpar. (A) read as follows: "the information required by section 3204(e)(2) of this title;".

Subsec. (b)(3)(B) to (D). Pub. L. 118–159, §841(1)(C)(ii), (iii), redesignated subpar. (D) as (B) and struck out former subpars. (B) and (C) which read as follows:

"(B) the joint recommendation by the Under Secretary of Defense for Acquisition and Sustainment and the Chief Information Officer of the Department of Defense as specified in paragraph (1);

"(C) a summary of the risk assessment by the Under Secretary of Defense for Intelligence that serves as the basis for the joint recommendation specified in paragraph (1); and".

Subsecs. (c) to (e). Pub. L. 118–159, §841(2), (3), redesignated subsecs. (d) and (e) as (c) and (d), respectively, and struck out former subsec. (c). Prior to amendment, text of subsec. (c) read as follows: "The head of a covered agency may not delegate the authority provided in subsection (a) or the responsibility to make a determination under subsection (b) to an official below the level of the service acquisition executive for the agency concerned."

2021—Pub. L. 116–283, §1813(g), renumbered section 2339a of this title as this section.

Subsec. (b)(1). Pub. L. 116–283, §1081(a)(36), inserted "and Security" after "for Intelligence".

Subsec. (b)(3)(A). Pub. L. 116–283, §1813(g)(1), substituted "section 3204(e)(2)" for "section 2304(f)(3)".

Subsec. (e)(2)(A). Pub. L. 116–283, §1813(g)(2), substituted "section 3243" for "section 2319".

Subsec. (e)(3)(A). Pub. L. 116–283, §1813(g)(3)(A), substituted "section 3206(a)(3)(B)" for "section 2305(a)(1)(C)(ii)" and "section 3206(b)(1)" for "section 2305(a)(2)(A)".

Subsec. (e)(3)(B). Pub. L. 116–283, §1813(g)(3)(B), substituted "section 3406(d)(3)" for "section 2304c(d)(3)".

2019—Subsec. (e)(5). Pub. L. 116–92 substituted "section 3552(b)(6)" for "section 3542(b)".

Statutory Notes and Related Subsidiaries

Effective Date of 2021 Amendment

Amendment by section 1813(g) of 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 a note preceding section 3001 of this title.

CHAPTER 225—[Reserved]

        

Editorial Notes

Amendments

2021—Pub. L. 117–81, div. A, title XVII, §1701(i)(3), Dec. 27, 2021, 135 Stat. 2141, amended Pub. L. 116–283, div. A, title XVIII, §1813(h), Jan. 1, 2021, 134 Stat. 4181, which added this analysis, by substituting "[Reserved]" for "PLANNING AND SOLICITATION RELATING TO PARTICULAR ITEMS OR SERVICES" in chapter heading.

Subpart C—Contracting Methods and Contract Types

Editorial Notes

Amendments

2018—Pub. L. 115–232, div. A, title VIII, §801(a), Aug. 13, 2018, 132 Stat. 1827, added subpart heading.

CHAPTER 241—AWARDING OF CONTRACTS

        

Editorial Notes

Prior Provisions

A prior chapter 241 "AWARDING OF CONTRACTS", as added by Pub. L. 115–232, div. A, title VIII, §801(a), Aug. 13, 2018, 132 Stat. 1827, and consisting of reserved section 3301, was repealed by Pub. L. 116–283, div. A, title XVIII, §1816(b), Jan. 1, 2021, 134 Stat. 4182.

Statutory Notes and Related Subsidiaries

Pilot Program for Anything-As-A-Service

Pub. L. 118–31, div. A, title VIII, §809, Dec. 22, 2023, 137 Stat. 320, provided that:

"(a) In General.—The Secretary of Defense shall establish a pilot program to explore the use of consumption-based solutions to address any defense need, hereafter 'anything-as-a-service', that is feasible to provide users on-demand access, quickly add newly released capabilities, and bill based on actual usage at fixed price units.

"(b) Requirements.—A contract or other agreement for anything-as-a-service entered into under the pilot program shall require the outcomes of the capability to be measurable, including the cost and speed of delivery in comparison to using processes other than anything-as-a-service, at the regular intervals that are customary for the type of solution provided.

"(c) Notice.—With respect to each opportunity to participate in the pilot program established under subsection (a), the Secretary shall make publicly available a notice of such opportunity for not less than 60 days.

"(d) Timing.—The Secretary shall, to the extent practicable, enter into a contract or other agreement under this section not later than 100 days after the date on which the Secretary, under subsection (c), makes publicly available a notice to participate in the pilot program established under this section.

"(e) Exemptions.—A contract or other agreement entered into under this section shall be exempt from the following:

"(1) The requirements of section 3702 of title 10, United States Code.

"(2) With respect to a modification to add new features or capabilities in an amount less than or equal to 25 percent of the total value of such contract or other agreement, the requirements of full and open competition (as defined in [former] section 2302 of title 10, United States Code [see 10 U.S.C. 3011]).

"(f) Briefing.—Not later than June 30, 2024, the Secretary of Defense shall provide a briefing to the congressional defense committees [Committees on Armed Services and Appropriations of the Senate and the House of Representatives] on the implementation of the pilot program.

"(g) Anything-as-a-service Defined.—In this section, the term 'anything-as-a-service' means a model under which a technology-supported capability is provided to the Department of Defense and may utilize any combination of software, hardware or equipment, data, and labor or services that provides a capability that is metered and billed based on actual usage at fixed price units."

Development of Procurement Administrative Lead Time

Pub. L. 115–91, div. A, title VIII, §886, Dec. 12, 2017, 131 Stat. 1505, as amended by Pub. L. 118–159, div. A, title XVII, §1701(d)(1), Dec. 23, 2024, 138 Stat. 2207, provided that:

"(a) In General.—Not later than 180 days after the date of the enactment of this Act [Dec. 12, 2017], the Secretary of Defense shall develop, make available for public comment, and finalize—

"(1) a definition of the term 'procurement administrative lead time' or 'PALT', to be applied Department of Defense-wide, that describes the amount of time from the date on which a solicitation is issued to the date of an initial award of a contract or task order of the Department of Defense; and

"(2) a plan for measuring and publicly reporting data on PALT for Department of Defense contracts and task orders above the simplified acquisition threshold.

"(b) Requirement for Definition.—Unless the Secretary determines otherwise, the amount of time in the definition of PALT developed under subsection (a) shall—

"(1) begin on the date on which the initial solicitation is issued for a contract or task order of the Department of Defense by the Secretary of a military department or head of a Defense Agency; and

"(2) end on the date of the award of the contract or task order.

"(c) Coordination.—In developing the definition of PALT, the Secretary shall coordinate with—

"(1) the senior contracting official of each military department and Defense Agency to determine the variations of the definition in use across the Department of Defense and each military department and Defense Agency; and

"(2) the Administrator of the General Services Administration on modifying the existing data system of the Federal Government to determine the date on which the initial solicitation is issued.

"(d) Use of Existing Procurement Data Systems.—In developing the plan for measuring and publicly reporting data on PALT required by subsection (a), the Secretary shall, to the maximum extent practicable, rely on the information contained in the Federal procurement data system established pursuant to section 1122(a)(4) of title 41, United States Code, including any modifications to that system."

§3301. Basis of award and rejection

(a) Award.—The head of an agency shall evaluate sealed bids and competitive proposals and make an award based solely on the factors specified in the solicitation.

(b) Rejection.—All sealed bids or competitive proposals received in response to a solicitation may be rejected if the head of the agency determines that such action is in the public interest.

(Added and amended Pub. L. 116–283, div. A, title XVIII, §1816(c)(2)(A), (3), Jan. 1, 2021, 134 Stat. 4182.)

Editorial Notes

Codification

The text of subsec. (b)(1), (2) of section 2305 of this title, which was transferred to this section and amended by Pub. L. 116–283, §1816(c)(1), (2)(A), (3), was based on Pub. L. 98–369, div. B, title VII, §2723(b), July 18, 1984, 98 Stat. 1191, 1192; Pub. L. 101–510, div. A, title VIII, §802(d)(1), Nov. 5, 1990, 104 Stat. 1589.

Amendments

2021—Pub. L. 116–283, §1816(c)(3), redesignated subsec. (b)(1) and (2) of section 2305 of this title as subsecs. (a) and (b), respectively, of this section and inserted headings.

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.

Consideration of the Past Performance of Affiliate Companies of Small Business Concerns

Pub. L. 118–31, div. A, title VIII, §865, Dec. 22, 2023, 137 Stat. 348, provided that: "Not later than July 1, 2024, the Secretary of Defense shall amend section 215.305 of the Defense Federal Acquisition Supplement (or any successor regulation) to require that when small business concerns bid on Department of Defense contracts, the past performance evaluation and source selection processes shall consider, if relevant, the past performance information of affiliate companies of the small business concerns."

Inclusion of Best Available Information Regarding Past Performance of Subcontractors and Joint Venture Partners

Pub. L. 115–232, div. A, title VIII, §823, Aug. 13, 2018, 132 Stat. 1855, provided that: "Not later than 180 days after the date of the enactment of this Act [Aug. 13, 2018], the Secretary of Defense, in consultation with the Federal Acquisition Regulatory Council and the Administrator for Federal Procurement Policy, shall develop policies for the Department of Defense to ensure the best information regarding past performance of certain subcontractors and joint venture partners is available when awarding Department of Defense contracts. The policies shall include proposed revisions to the Defense Federal Acquisition Regulation Supplement as follows:

"(1) Required performance evaluations, as part of a government-wide evaluation reporting tool, for first-tier subcontractors on construction and architect-engineer contracts performing a portion of the contract valued at the threshold set forth in section 42.1502(e) of the Federal Acquisition Regulation, or 20 percent of the value of the prime contract, whichever is higher, provided—

"(A) the information included in rating the subcontractor is not inconsistent with the information included in the rating for the prime contractor;

"(B) the subcontractor evaluation is conducted consistent with the provisions of section 42.15 of the Federal Acquisition Regulation;

"(C) negative evaluations of a subcontractor in no way obviate the prime contractor's responsibility for successful completion of the contract and management of its subcontractors; and

"(D) that in the judgment of the contracting officer, the overall execution of the work is impacted by the performance of the subcontractor or subcontractors.

"(2) Required performance evaluations, as part of a government-wide evaluation reporting tool, of individual partners of joint venture-awarded construction and architect-engineer contracts valued at the threshold set forth in section 42.1502(e) of the Federal Acquisition Regulation, to ensure that past performance on joint venture projects is considered in future awards to individual joint venture partners, provided—

"(A) at a minimum, the rating for joint ventures includes an identification that allows the evaluation to be retrieved for each partner of the joint venture;

"(B) each partner, through the joint venture, is given the same opportunity to submit comments, rebutting statements, or additional information, consistent with the provisions of section 42.15 of the Federal Acquisition Regulation; and

"(C) the rating clearly identifies the responsibilities of joint venture partners for discrete elements of the work where the partners are not jointly and severally responsible for the project.

"(3) Processes to request exceptions from the annual evaluation requirement under section 42.1502(a) of the Federal Acquisition Regulation for construction and architect-engineer contracts where submission of the annual evaluations would not provide the best representation of the performance of a contractor, including subcontractors and joint venture partners, including—

"(A) where no severable element of the work has been completed;

"(B) where the contracting officer determines that—

"(i) an insubstantial portion of the contract work has been completed in the preceding year; and

"(ii) the lack of performance is at no fault to the contractor; or

"(C) where the contracting officer determines that there is an issue in dispute which, until resolved, would likely cause the annual rating to inaccurately reflect the past performance of the contractor."

Inclusion of Data on Contractor Performance in Past Performance Databases for Source Selection Decisions

Pub. L. 112–81, div. A, title VIII, §806, Dec. 31, 2011, 125 Stat. 1487, as amended by Pub. L. 112–239, div. A, title X, §1076(a)(11), Jan. 2, 2013, 126 Stat. 1948; Pub. L. 116–92, div. A, title IX, §902(35), Dec. 20, 2019, 133 Stat. 1547, provided that:

"(a) Strategy on Inclusion Required.—Not later than 180 days after the date of the enactment of this Act [Dec. 31, 2011], the Under Secretary of Defense for Acquisition and Sustainment shall develop a strategy for ensuring that timely, accurate, and complete information on contractor performance is included in past performance databases used for making source selection decisions.

"(b) Elements.—The strategy required by subsection (a) shall, at a minimum—

"(1) establish standards for the timeliness and completeness of past performance submissions for purposes of databases described in subsection (a);

"(2) assign responsibility and management accountability for the completeness of past performance submissions for such purposes; and

"(3) ensure that past performance submissions for such purposes are consistent with award fee evaluations in cases where such evaluations have been conducted.

"(c) Contractor Comments.—Not later than 180 days after the date of the enactment of this Act [Dec. 31, 2011], the Under Secretary of Defense for Acquisition and Sustainment shall revise the Defense Supplement to the Federal Acquisition Regulation to require the following:

"(1) That affected contractors are provided, in a timely manner, information on contractor performance to be included in past performance databases in accordance with subsection (a).

"(2) That such contractors are afforded up to 14 calendar days, from the date of delivery of the information provided in accordance with paragraph (1), to submit comments, rebuttals, or additional information pertaining to past performance for inclusion in such databases.

"(3) That agency evaluations of contractor past performance, including any information submitted under paragraph (2), are included in the relevant past performance database not later than the date that is 14 days after the date of delivery of the information provided in accordance with paragraph (1).

"(d) Construction.—Nothing in this section shall be construed to prohibit a contractor from submitting comments, rebuttals, or additional information pertaining to past performance after the period described in subsection (c)(2) has elapsed or to prohibit a contractor from challenging a past performance evaluation in accordance with applicable laws, regulations, or procedures.

"(e) Comptroller General Report.—Not later than 18 months after the date of the enactment of this Act [Dec. 31, 2011], the Comptroller General of the United States shall submit to the congressional defense committees [Committees on Armed Services and Appropriations of the Senate and the House of Representatives] a report on the actions taken by the Under Secretary of Defense for Acquisition and Sustainment pursuant to this section, including an assessment of the extent to which such actions have achieved the objectives of this section."

§3302. Sealed bids

(a) Opening of Bids.—Sealed bids shall be opened publicly at the time and place stated in the solicitation.

(b) Criteria for Awarding Contract.—The head of the agency shall evaluate the bids in accordance with section 3301(a) of this title without discussions with the bidders and, except as provided in section 3301(b) of this title, shall award a contract with reasonable promptness to the responsible bidder whose bid conforms to the solicitation and is most advantageous to the United States, considering only price and the other price-related factors included in the solicitation.

(c) Notice of Award.—The award of a contract shall be made by transmitting, in writing or by electronic means, notice of the award to the successful bidder. Within three days after the date of contract award, the head of the agency shall notify, in writing or by electronic means, each bidder not awarded the contract that the contract has been awarded.

(Added and amended Pub. L. 116–283, div. A, title XVIII, §1816(c)(2)(B), (4), Jan. 1, 2021, 134 Stat. 4182.)

Editorial Notes

Codification

The text of subsec. (b)(3) of section 2305 of this title, which was transferred to this section and amended by Pub. L. 116–283, §1816(c)(1), (2)(B), (4) was based on Pub. L. 98–369, div. B, title VII, §2723(b), July 18, 1984, 98 Stat. 1192; Pub. L. 101–510, div. A, title VIII, §802(d)(2), Nov. 5, 1990, 104 Stat. 1589; Pub. L. 103–355, title I, §1013(a), Oct. 13, 1994, 108 Stat. 3255.

Prior Provisions

A prior section 3302, act Aug. 10, 1956, ch. 1041, 70A Stat. 187, related to promotion to captain, major, or lieutenant colonel of commissioned officers of Medical Corps, Dental Corps, and Veterinary Corps upon examination of professional fitness and effect upon failure of promotion, prior to repeal by Pub. L. 96–513, title II, §204, title VII, §701, Dec. 12, 1980, 94 Stat. 2880, 2955, effective Sept. 15, 1981. See sections 631 and 632 of this title.

Amendments

2021—Subsec. (a). Pub. L. 116–283, §1816(c)(4)(A), (C), redesignated subsec. (b)(3) of section 2305 of this title as subsec. (a) of this section and inserted heading. Former second and third sentences of subsec. (a) designated subsecs. (b) and (c), respectively.

Subsec (b). Pub. L. 116–283, §1816(c)(4)(B), (D), designated second sentence of subsec. (a) as subsec. (b) of this section, inserted heading, and substituted "section 3301(a) of this title" for "paragraph (1)" and "section 3301(b) of this title" for "paragraph (2)".

Subsec. (c). Pub. L. 116–283, §1816(c)(4)(B), (E), designated third sentence of subsec. (a) as subsec. (c) of this section and inserted heading.

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.

§3303. Competitive proposals

(a) Evaluation and Award.—The head of an agency shall evaluate competitive proposals in accordance with section 3301(a) of this title and may award a contract—

(1) after discussions with the offerors, provided that written or oral discussions have been conducted with all responsible offerors who submit proposals within the competitive range; or

(2) based on the proposals received, without discussions with the offerors (other than discussions conducted for the purpose of minor clarification) provided that the solicitation included a statement that proposals are intended to be evaluated, and award made, without discussions, unless discussions are determined to be necessary.

(b) Limit on Number of Proposals.—If the contracting officer determines that the number of offerors that would otherwise be included in the competitive range under subsection (a)(1) exceeds the number at which an efficient competition can be conducted, the contracting officer may limit the number of proposals in the competitive range, in accordance with the criteria specified in the solicitation, to the greatest number that will permit an efficient competition among the offerors rated most highly in accordance with such criteria.

(c) Criteria for Awarding Contract.—Except as provided in section 3301(b) of this title, the head of the agency shall award a contract with reasonable promptness to the responsible source whose proposal is most advantageous to the United States, considering only cost or price and the other factors included in the solicitation.

(d) Notice of Award.—The head of the agency shall award the contract by transmitting, in writing or by electronic means, notice of the award to such source and, within three days after the date of contract award, shall notify, in writing or by electronic means, all other offerors of the rejection of their proposals.

(e) Exception for Perishable Subsistence Items.—Subsections (c) and (d) do not apply with respect to the award of a contract for the acquisition of perishable subsistence items.

(Added and amended Pub. L. 116–283, div. A, title XVIII, §1816(c)(2)(C), (5), Jan. 1, 2021, 134 Stat. 4182, 4183; Pub. L. 117–81, div. A, title XVII, §1701(b)(6)(A), Dec. 27, 2021, 135 Stat. 2133.)

Editorial Notes

Codification

The text of subsec. (b)(4) of section 2305 of this title, which was transferred to this section and amended by Pub. L. 116–283, §1816(c)(1), (2)(C), (5) was based on Pub. L. 98–369, div. B, title VII, §2723(b), July 18, 1984, 98 Stat. 1192; Pub. L. 99–500, §101(c) [title X, §924(b)], Oct. 18, 1986, 100 Stat. 1783–82, 1783-153, and Pub. L. 99–591, §101(c) [title X, §924(b)], Oct. 30, 1986, 100 Stat. 3341–82, 3341-153; Pub. L. 99–661, div. A, title III, §313(b), title IX, formerly title IV, §924(b), Nov. 14, 1986, 100 Stat. 3853, 3933, renumbered title IX, Pub. L. 100–26, §3(5), Apr. 21, 1987, 101 Stat. 273; Pub. L. 101–189, div. A, title VIII, §853(f), Nov. 29, 1989, 103 Stat. 1519; Pub. L. 101–510, div. A, title VIII, §802(d), Nov. 5, 1990, 104 Stat. 1589; Pub. L. 103–355, title I, §1013(b), Oct. 13, 1994, 108 Stat. 3255; Pub. L. 104–106, div. D, title XLI, §4103(a), Feb. 10, 1996, 110 Stat. 643.

Prior Provisions

A prior section 3303, act Aug. 10, 1956, ch. 1041, 70A Stat. 188; Pub. L. 86–616, §1(3), July 12, 1960, 74 Stat. 386; Pub. L. 87–509, §4(a), June 28, 1962, 76 Stat. 121, related to effect of failure of a promotion-list officer considered for promotion to grade of captain, major, or lieutenant colonel under section 3299 of this title to be recommended for promotion, which officer was to be known as a "deferred officer", prior to repeal by Pub. L. 96–513, title II, §204, title VII, §701, Dec. 12, 1980, 94 Stat. 2880, 2955, effective Sept. 15, 1981. See sections 631 and 632 of this title.

Amendments

2021—Pub. L. 116–283, §1816(c)(5)(A), transferred subsec. (b)(4) of section 2305 of this title to this section and struck out par. (4) designation at beginning.

Subsec. (a). Pub. L. 116–283, §1816(c)(5)(B), (D), redesignated subpar. (A) of former section 2305(b)(4) of this title as subsec. (a) of this section, inserted heading, substituted "section 3301(a) of this title" for "paragraph (1)" in introductory provisions, and redesignated cls. (i) and (ii) as pars. (1) and (2), respectively.

Subsec. (b). Pub. L. 116–283, §1816(c)(5)(B), (E), redesignated subpar. (B) of former section 2305(b)(4) of this title as subsec. (b) of this section, inserted heading, and substituted "subsection (a)(1)" for "subparagraph (A)(i)".

Subsec. (c). Pub. L. 116–283, §1816(c)(5)(B), (F), redesignated subpar. (C) of former section 2305(b)(4) of this title as subsec. (c) of this section, inserted heading, and substituted "section 3301(b) of this title" for "paragraph (2)". Former second and third sentences designated subsec. (d).

Subsec. (d). Pub. L. 116–283, §1816(c)(5)(C), (G), as amended and added by Pub. L. 117–81, §1701(b)(6)(A), designated the second sentence of subsec. (c) as subsec. (d) and inserted heading.

Subsec. (e). Pub. L. 116–283, §1816(c)(5)(C), (H), as amended and added by Pub. L. 117–81, §1701(b)(6)(A), designated the third sentence of subsec. (c) as subsec. (e), inserted heading, and substituted "Subsections (c) and (d) do not" for "This subparagraph does not".

Statutory Notes and Related Subsidiaries

Effective Date of 2021 Amendment

Amendment by Pub. L. 117–81 applicable as if included in the enactment of title XVIII of Pub. L. 116–283 as enacted, see section 1701(a)(2) of Pub. L. 117–81, set out in a note preceding section 3001 of this title and Effective Date note below.

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.

Procurement of Tents or Other Temporary Structures

Pub. L. 112–81, div. A, title III, §368, Dec. 31, 2011, 125 Stat. 1381, provided that:

"(a) In General.—In procuring tents or other temporary structures for use by the Armed Forces, and in establishing or maintaining an alternative source for such tents and structures, the Secretary of Defense shall award contracts that provide the best value to the United States. In determining the best value to the United States under this section, the Secretary shall consider the total life-cycle costs of such tents or structures, including the costs associated with any equipment or fuel needed to heat or cool such tents or structures.

"(b) Interagency Procurement.—The requirements of this section shall apply to any agency or department of the United States that procures tents or other temporary structures on behalf of the Department of Defense."

§3304. Post-award debriefings

(a) Request for Debriefing.—When a contract is awarded by the head of an agency on the basis of competitive proposals, an unsuccessful offeror, upon written request received by the agency within 3 days after the date on which the unsuccessful offeror receives the notification of the contract award, shall be debriefed and furnished the basis for the selection decision and contract award.

(b) When Debriefing to Be Conducted.—The head of the agency shall debrief the offeror within, to the maximum extent practicable, five days after receipt of the request by the agency.

(c) Information to Be Provided.—(1) The debriefing shall include, at a minimum—

(A) the agency's evaluation of the significant weak or deficient factors in the offeror's offer;

(B) the overall evaluated cost and technical rating of the offer of the contractor awarded the contract and the overall evaluated cost and technical rating of the offer of the debriefed offeror;

(C) the overall ranking of all offers;

(D) a summary of the rationale for the award;

(E) in the case of a proposal that includes a commercial product that is an end item under the contract, the make and model of the item being provided in accordance with the offer of the contractor awarded the contract;

(F) reasonable responses to relevant questions posed by the debriefed offeror as to whether source selection procedures set forth in the solicitation, applicable regulations, and other applicable authorities were followed by the agency; and

(G) an opportunity for a disappointed offeror to submit, within two business days after receiving a post-award debriefing, additional questions related to the debriefing.

(2) The agency shall respond in writing to any additional question submitted under paragraph (1)(G) within five business days after receipt of the question. The agency shall not consider the debriefing to be concluded until the agency delivers its written responses to the disappointed offeror.

(d) Information Not to Be Included.—The debriefing may not include point-by-point comparisons of the debriefed offeror's offer with other offers and may not disclose any information that is exempt from disclosure under section 552(b) of title 5.

(e) Inclusion of Statement in Solicitation.—Each solicitation for competitive proposals shall include a statement that information described in subsection (c) may be disclosed in post-award debriefings.

(f) After Successful Protest.—If, within one year after the date of the contract award and as a result of a successful procurement protest, the agency seeks to fulfill the requirement under the protested contract either on the basis of a new solicitation of offers or on the basis of new best and final offers requested for that contract, the agency shall make available to all offerors—

(1) the information provided in debriefings under this paragraph regarding the offer of the contractor awarded the contract; and

(2) the same information that would have been provided to the original offerors.

(g) Summary to Be Included in File.—The contracting officer shall include a summary of any debriefing conducted under this section in the contract file.

(Added and amended Pub. L. 116–283, div. A, title XVIII, §1816(c)(2)(D), (6), Jan. 1, 2021, 134 Stat. 4182, 4183; Pub. L. 118–31, div. A, title XVIII, §1801(a)(26), Dec. 22, 2023, 137 Stat. 684.)

Editorial Notes

Codification

The text of subsec. (b)(5) of section 2305 of this title, which was transferred to this section, redesignated as subsecs. (a) to (f), and amended by Pub. L. 116–283, §1816(c)(1), (2)(D), (6)(A)–(J), was based on Pub. L. 103–355, title I, §1014(2), Oct. 13, 1994, 108 Stat. 3256; Pub. L. 104–106, div. D, title XLI, §4104(a)(1), Feb. 10, 1996, 110 Stat. 644; Pub. L. 115–91, div. A, title VIII, §818(b), Dec. 12, 2017, 131 Stat. 1463; Pub. L. 115–232, div. A, title VIII, §836(c)(3), Aug. 13, 2018, 132 Stat. 1864.

For derivation of subsec. (g) of this section, see Codification note related to subsec. (f) set out under section 3305 of this title.

Prior Provisions

A prior section 3304, act Aug. 10, 1956, ch. 1041, 70A Stat. 189; Pub. L. 85–155, title I, §101(14), Aug. 21, 1957, 71 Stat. 378, covered promotion of officers in the Army Nurse Corps and the Army Medical Specialists Corps to colonel and lieutenant colonel, set out the requirements of officers on the promotion lists, and provided for the procedure to be followed in determining the order of promotion, prior to repeal by Pub. L. 90–130, §1(10)(C), Nov. 8, 1967, 81 Stat 375.

Amendments

2023—Subsec. (g). Pub. L. 118–31 inserted "under" before "this section".

2021—Pub. L. 116–283, §1816(c)(6)(A), transferred subsec. (b)(5) of section 2305 of this title to this section and struck out par. (5) designation at beginning.

Subsec. (a). Pub. L. 116–283, §1816(c)(6)(B), (E), redesignated subpar. (A) of former section 2305(b)(5) of this title as subsec. (a) of this section and inserted heading. Former second sentence of subsec. (a) designated subsec. (b).

Subsec. (b). Pub. L. 116–283, §1816(c)(6)(C), (F), designated second sentence of subsec. (a) as subsec. (b) of this section and inserted heading.

Subsec. (c)(1). Pub. L. 116–283, §1816(c)(6)(B), (G)(i), (ii), redesignated subpar. (B) of former section 2305(b)(5) of this title and its cls. (i) to (vii) as subsec. (c)(1) of this section and subpars. (A) to (G), respectively, and inserted subsec. heading.

Subsec. (c)(2). Pub. L. 116–283, §1816(c)(6)(D), (G)(iii), redesignated subpar. (C) of former section 2305(b)(5) of this title as subsec. (c)(2) of this section and substituted "paragraph (1)(G)" for "subparagraph (B)(vii)".

Subsec. (d). Pub. L. 116–283, §1816(c)(6)(B), (H), redesignated subpar. (D) of former section 2305(b)(5) of this title as subsec. (d) of this section and inserted heading.

Subsec. (e). Pub. L. 116–283, §1816(c)(6)(B), (I), redesignated subpar. (E) of former section 2305(b)(5) of this title as subsec. (e) of this section, inserted heading, and substituted "subsection (c)" for "subparagraph (B)".

Subsec. (f). Pub. L. 116–283, §1816(c)(6)(B), (J), redesignated subpar. (F) of former section 2305(b)(5) of this title as subsec. (f) of this section, inserted heading, and redesignated cls. (i) and (ii) as pars. (1) and (2), respectively.

Subsec. (g). Pub. L. 116–283, §1816(c)(6)(K), added subsec. (g) identical to subsec. (f) of section 3305 of this title.

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.

Enhanced Post-Award Debriefing Rights; Release of Contract Award Information

Pub. L. 115–91, div. A, title VIII, §818(a), Dec. 12, 2017, 131 Stat. 1463, provided that: "Not later than 180 days after the date of the enactment of this Act [Dec. 12, 2017], the Secretary of Defense shall revise the Department of Defense Supplement to the Federal Acquisition Regulation to require that all required post-award debriefings, while protecting the confidential and proprietary information of other offerors, include, at a minimum, the following:

"(1) In the case of a contract award in excess of $100,000,000, a requirement for disclosure of the agency's written source selection award determination, redacted to protect the confidential and proprietary information of other offerors for the contract award, and, in the case of a contract award in excess of $10,000,000 and not in excess of $100,000,000 with a small business or nontraditional contractor, an option for the small business or nontraditional contractor to request such disclosure.

"(2) A requirement for a written or oral debriefing for all contract awards and task or delivery orders valued at $10,000,000 or higher.

"(3) Provisions ensuring that both unsuccessful and winning offerors are entitled to the disclosure described in paragraph (1) and the debriefing described in paragraph (2).

"(4) Robust procedures, consistent with section 2305(b)(5)(D) of title 10, United States Code [now 10 U.S.C. 3304(d)], and provisions implementing that section in the Federal Acquisition Regulation, to protect the confidential and proprietary information of other offerors."

§3305. Pre-award debriefings

(a) Request for Debriefing.—When the contracting officer excludes an offeror submitting a competitive proposal from the competitive range (or otherwise excludes such an offeror from further consideration prior to the final source selection decision), the excluded offeror may request in writing, within three days after the date on which the excluded offeror receives notice of its exclusion, a debriefing prior to award.

(b) When Debriefing to Be Conducted.—The contracting officer shall make every effort to debrief the unsuccessful offeror as soon as practicable but may refuse the request for a debriefing if it is not in the best interests of the Government to conduct a debriefing at that time.

(c) Precondition for Post-award Debriefing.—The contracting officer is required to debrief an excluded offeror in accordance with section 3304 of this title only if that offeror requested and was refused a preaward debriefing under subsections (a) and (b).

(d) Information to Be Provided.—The debriefing conducted under subsections (a) and (b) shall include—

(1) the executive agency's evaluation of the significant elements in the offeror's offer;

(2) a summary of the rationale for the offeror's exclusion; and

(3) reasonable responses to relevant questions posed by the debriefed offeror as to whether source selection procedures set forth in the solicitation, applicable regulations, and other applicable authorities were followed by the executive agency.

(e) Information Not to Be Disclosed.—The debriefing conducted under subsections (a) and (b) may not disclose the number or identity of other offerors and shall not disclose information about the content, ranking, or evaluation of other offerors' proposals.

(f) Summary to Be Included in File.—The contracting officer shall include a summary of any debriefing conducted under this section in the contract file.

(Added and amended Pub. L. 116–283, div. A, title XVIII, §1816(c)(2)(E), (7), Jan. 1, 2021, 134 Stat. 4182, 4183; Pub. L. 117–81, div. A, title XVII, §1701(b)(6)(B), Dec. 27, 2021, 135 Stat. 2133.)

Editorial Notes

Codification

The text of subsec. (b)(6) of section 2305 of this title, which was transferred to this section, redesignated as subsecs. (a) to (e), and amended by Pub. L. 116–283, §1816(c)(1), (2)(E), (7)(A), (C)–(I), was based on Pub. L. 104–106, div. D, title XLI, §4104(a)(3), Feb. 10, 1996, 110 Stat. 644; Pub. L. 104–201, div. A, title X, §1074(a)(11), Sept. 23, 1996, 110 Stat. 2659.

The text of subsec. (b)(7) of section 2305 of this title, which was transferred to this section, redesignated as subsec. (f), and amended by Pub. L. 116–283, §1816(c)(1), (2)(E), (7)(B), (J), was based on Pub. L. 104–106, div. D, title XLI, §4104(a)(3), Feb. 10, 1996, 110 Stat. 644.

Prior Provisions

A prior section 3305, act Aug. 10, 1956, ch. 1041, 70A Stat. 189; Pub. L. 85–155, title I, §101(16), Aug. 21, 1957, 71 Stat. 379; Pub. L. 90–130, §1(10)(D), (E), Nov. 8, 1967, 81 Stat. 375, related to promotion of officers in regular grade of lieutenant colonel to grade of colonel, prior to repeal by Pub. L. 96–513, title II, §204, title VII, §701, Dec. 12, 1980, 94 Stat. 2880, 2955, effective Sept. 15, 1981. See section 619 et seq. of this title.

Amendments

2021—Pub. L. 116–283, §1816(c)(7)(A), transferred subsec. (b)(6) of section 2305 of this title to this section and struck out par. (6) designation at beginning.

Subsec. (a). Pub. L. 116–283, §1816(c)(7)(C), (E), redesignated subpar. (A) of former section 2305(b)(6) of this title as subsec. (a) of this section and inserted heading. Former second sentence of subsec. (a) designated subsec. (b).

Subsec. (b). Pub. L. 116–283, §1816(c)(7)(D), (F), designated second sentence of subsec. (a) as subsec. (b) of this section and inserted heading.

Subsec. (c). Pub. L. 116–283, §1816(c)(7)(B), (G), redesignated subpar. (B) of former section 2305(b)(6) of this title as subsec. (c) of this section, inserted heading, and substituted "section 3304 of this title" for "paragraph (5)" and "subsections (a) and (b)" for "subparagraph (A)".

Subsec. (d). Pub. L. 116–283, §1816(c)(7)(B), (H), redesignated subpar. (C) of former section 2305(b)(6) of this title and its cls. (i) to (iii) as subsec. (d) of this section and pars. (1) to (3), respectively, inserted heading, and substituted "subsections (a) and (b)" for "subparagraph (A)" in introductory provisions.

Subsec. (e). Pub. L. 116–283, §1816(c)(7)(B), (I), redesignated subpar. (D) of former section 2305(b)(6) of this title as subsec. (e) of this section, inserted heading, and substituted "subsections (a) and (b)" for "subparagraph (A)".

Subsec. (f). Pub. L. 116–283, §1816(c)(7)(B), (J), as amended by Pub. L. 117–81, §1701(b)(6)(B), redesignated subsec. (b)(7) of section 2305 of this title as subsec. (f) of this section, inserted heading, and substituted "under this section" for "under paragraph (5) or (6)".

Statutory Notes and Related Subsidiaries

Effective Date of 2021 Amendment

Amendment by Pub. L. 117–81 applicable as if included in the enactment of title XVIII of Pub. L. 116–283 as enacted, see section 1701(a)(2) of Pub. L. 117–81, set out in a note preceding section 3001 of this title and Effective Date note below.

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.

§3306. Encouragement of alternative dispute resolution

The Federal Acquisition Regulation shall include a provision encouraging the use of alternative dispute resolution techniques to provide informal, expeditious, and inexpensive procedures for an offeror to consider using before filing a protest, prior to the award of a contract, of the exclusion of the offeror from the competitive range (or otherwise from further consideration) for that contract.

(Added and amended Pub. L. 116–283, div. A, title XVIII, §1816(c)(2)(F), (8), Jan. 1, 2021, 134 Stat. 4182, 4185.)

Editorial Notes

Codification

The text of subsec. (b)(8) of this title, which was transferred to this section and amended by Pub. L. 116–283, §1816(c)(1), (2)(F), (8), was based on Pub. L. 104–106, div. D, title XLI, §4104(a)(3), Feb. 10, 1996, 110 Stat. 644.

Prior Provisions

A prior section 3306, act Aug. 10, 1956, ch. 1041, 70A Stat. 190, related to promotion of officers in regular grade of colonel to grade of brigadier general, prior to repeal by Pub. L. 96–513, title II, §204, title VII, §701, Dec. 12, 1980, 94 Stat. 2880, 2955, effective Sept. 15, 1981. See section 619 et seq. of this title.

Amendments

2021—Pub. L. 116–283, §1816(c)(8), transferred subsec. (b)(8) of section 2305 of this title to this section and struck out par. (8) designation at beginning.

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.

§3307. Antitrust violations

If the head of an agency considers that a bid or proposal evidences a violation of the antitrust laws, he shall refer the bid or proposal to the Attorney General for appropriate action.

(Added and amended Pub. L. 116–283, div. A, title XVIII, §1816(c)(2)(G), (9), Jan. 1, 2021, 134 Stat. 4182, 4185.)

Editorial Notes

Codification

The text of subsec. (b)(9) of section 2305 of this title, which was transferred to this section and amended by Pub. L. 116–283, §1816(c)(1), (2)(G), (9), was based on Pub. L. 98–369, div. B, title VII, §2723(b), July 18, 1984, 98 Stat. 1192; Pub. L. 99–145, title XIII, §1303(a)(14), Nov. 8, 1985, 99 Stat. 739; Pub. L. 103–355, title I, §1014(1), Oct. 13, 1994, 108 Stat. 3255; Pub. L. 104–106, div. D, title XLI, §4104(a), Feb. 10, 1996, 110 Stat. 644.

Prior Provisions

A prior section 3307, act Aug. 10, 1956, ch. 1041, 70A Stat. 191, related to promotion of officers in regular grade of brigadier general to grade of major general, prior to repeal by Pub. L. 96–513, title II, §204, title VII, §701, Dec. 12, 1980, 94 Stat. 2880, 2955, effective Sept. 15, 1981. See section 619 et seq. of this title.

Amendments

2021—Pub. L. 116–283, §1816(c)(9), transferred subsec. (b)(9) of section 2305 of this title to this section and struck out par. (9) designation at beginning.

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.

§3308. Protests

(a) Protest File.—

(1) Establishment and access.—If, in the case of a solicitation for a contract issued by, or an award or proposed award of a contract by, the head of an agency, a protest is filed pursuant to the procedures in subchapter V of chapter 35 of title 31 and an actual or prospective offeror so requests, a file of the protest shall be established by the procuring activity and reasonable access shall be provided to actual or prospective offerors.

(2) Redacted information.—Information exempt from disclosure under section 552 of title 5 may be redacted in a file established pursuant to paragraph (1) unless an applicable protective order provides otherwise.

(b) Agency Actions on Protests.—If, in connection with a protest, the head of an agency determines that a solicitation, proposed award, or award does not comply with the requirements of law or regulation, the head of the agency—

(1) may take any action set out in subparagraphs (A) through (F) of subsection (b)(1) of section 3554 of title 31; and

(2) may pay costs described in paragraph (1) of section 3554(c) of title 31 within the limits referred to in paragraph (2) of such section.

(Added and amended Pub. L. 116–283, div. A, title XVIII, §1816(d), (e), Jan. 1, 2021, 134 Stat. 4185.)

Editorial Notes

Codification

The text of subsec. (e) of section 2305 of this title, which was transferred to this section, redesignated as subsec. (a), and amended by Pub. L. 116–283, §1816(e), was based on Pub. L. 103–355, title I, §1015, Oct. 13, 1994, 108 Stat. 3256; Pub. L. 104–106, div. E, title LVI, §5601(a), Feb. 10, 1996, 110 Stat. 699; Pub. L. 104–201, div. A, title X, §1074(b)(4)(A), Sept. 23, 1996, 110 Stat. 2660.

The text of subsec. (f) of section 2305 of this title, which was transferred to this section, redesignated as subsec. (b), and amended by Pub. L. 116–283, §1816(e)(1), was based on Pub. L. 103–355, title I, §1016, Oct. 13, 1994, 108 Stat. 3257.

Prior Provisions

A prior section 3308, act Aug. 10, 1956, ch. 1041, 70A Stat. 192, related to effect of removal from recommended list by President of name of any promotion-list officer or brigadier general of Regular Army who in President's opinion is not qualified for promotion or who is not confirmed by Senate, prior to repeal by Pub. L. 96–513, title II, §204, title VII, §701, Dec. 12, 1980, 94 Stat. 2880, 2955, effective Sept. 15, 1981. See section 629 of this title.

Amendments

2021—Subsec. (a). Pub. L. 116–283, §1816(e), redesignated subsec. (e) of section 2305 of this title as subsec. (a) of this section and, in pars. (1) and (2), inserted headings and realigned margins.

Subsec. (b). Pub. L. 116–283, §1816(e)(1), redesignated subsec. (f) of section 2305 of this title as subsec. (b) of this section.

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.

§3309. Prohibition on release of contractor proposals

(a) Definition.—In this section, the term "proposal" means any proposal, including a technical, management, or cost proposal, submitted by a contractor in response to the requirements of a solicitation for a competitive proposal.

(b) Prohibition.—Except as provided in subsection (c), a proposal in the possession or control of an agency named in section 3063 of this title may not be made available to any person under section 552 of title 5.

(c) Inapplicability.—Subsection (b) does not apply to any proposal that is set forth or incorporated by reference in a contract entered into between the Department and the contractor that submitted the proposal.

(Added and amended Pub. L. 116–283, div. A, title XVIII, §1816(d), (f), Jan. 1, 2021, 134 Stat. 4185.)

Editorial Notes

Codification

The text of subsec. (g) of section 2305 of this title, which was transferred to this section and amended by Pub. L. 116–283, §1816(f), was based on Pub. L. 104–201, div. A, title VIII, §821(a), Sept. 23, 1996, 110 Stat. 2609; Pub. L. 106–65, div. A, title VIII, §821, Oct. 5, 1999, 113 Stat. 714.

Prior Provisions

A prior section 3309, act Aug. 10, 1956, ch. 1041, 70A Stat. 192, provided that President prescribe a system of physical examination for all commissioned officers of Regular Army in grades below brigadier general to determine their fitness for promotion in Regular Army, prior to repeal by Pub. L. 96–513, title II, §204, title VII, §701, Dec. 12, 1980, 94 Stat. 2880, 2955, effective Sept. 15, 1981. See section 624 of this title.

A prior section 3310, act Aug. 10, 1956, ch. 1041, 70A Stat. 192, provided that original appointments as warrant officers in the Regular Army were to be made from persons who have served on active duty at least one year in the Army, prior to repeal by Pub. L. 115–232, div. A, title V, §511(a), Aug. 13, 2018, 132 Stat. 1751.

A prior section 3311, acts Aug. 10, 1956, ch. 1041, 70A Stat. 192; Sept. 2, 1958, Pub. L. 85–861, §1(60), 72 Stat. 1462, provided that with the exception of those appointed as commissioned officers in Medical Corps, Dental Corps, Medical Service Corps, Veterinary Corps, Army Nurse Corps, or Army Medical Specialist Corps, women be appointed as commissioned officers in Regular Army only in Women's Army Corps, prior to repeal by Pub. L. 95–485, title VIII, §820(d)(4), Oct. 20, 1978, 92 Stat. 1627.

Prior sections 3312 to 3314 were repealed by Pub. L. 96–513, title II, §204, title VII, §701, Dec. 12, 1980, 94 Stat. 2880, 2955, effective Sept. 15, 1981.

Section 3312, act Aug. 10, 1956, ch. 1041, 70A Stat. 193, provided that an officer who is promoted in Regular Army is considered to have accepted his promotion on date of the order announcing it, unless he expressly declines it, without the need to take oath of office upon promotion if his service since last taking it has been continuous. See section 626 of this title.

Section 3313, act Aug. 10, 1956, ch. 1041, 70A Stat. 193, provided that in time of war or national emergency declared by Congress or President, President may suspend operation of provision of law relating to promotion, mandatory retirement, or separation of commissioned officers of the Regular Army. See section 123(a) and (b) of this title.

Section 3314, added Pub. L. 85–861, §1(79)(A), Sept. 2, 1958, 72 Stat. 1467, provided that promotion to a higher grade of a commissioned officer of Regular Army who is on a recommendation list awaiting promotion not be withheld or delayed because of original appointment of any other person to a commissioned grade in Regular Army and that this section does not apply to appointments in Medical Corps, Dental Corps, Army Nurse Corps, or Army Medical Specialist Corps. See section 624 of this title.

Amendments

2021—Pub. L. 116–283, §1816(f)(1)(A), transferred subsec. (g) of section 2305 of this title to this section and struck out subsec. (g) designation and heading "Prohibition on Release of Contractor Proposals" at beginning.

Subsec. (a). Pub. L. 116–283, §1816(f)(1)(B), (C), (2), redesignated par. (3) of former section 2305(g) of this title as subsec. (a) of this section, moved it to the beginning, inserted heading, and substituted "In this section," for "In this subsection,".

Subsec. (b). Pub. L. 116–283, §1816(f)(1)(B), (3), redesignated par. (1) of former section 2305(g) of this title as subsec. (b) of this section, inserted heading, and substituted "subsection (c)," for "paragraph (2)," and "section 3063" for "section 2303".

Subsec. (c). Pub. L. 116–283, §1816(f)(1)(B), (4), redesignated par. (2) of former section 2305(g) of this title as subsec. (c) of this section, inserted heading, and substituted "Subsection (b)" for "Paragraph (1)".

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.

CHAPTER 242—SPECIFIC TYPES OF CONTRACTS

        

Editorial Notes

Amendments

2021—Pub. L. 117–81, div. A, title XVII, §1701(i)(4)(A), Dec. 27, 2021, 135 Stat. 2141, amended Pub. L. 116–283, div. A, title XVIII, §1817(a), Jan. 1, 2021, 134 Stat. 4186, which added this analysis, by substituting "[Reserved]" for "Preference for fixed-price contracts" in item 3324.

§3321. Contracts awarded using procedures other than sealed-bid procedures

(a) Authorized Types.—Subject to the limitation in section 3322(a) of this title, the other provisions of this chapter, and other applicable provisions of law, the head of an agency, in awarding contracts under chapter 137 legacy provisions after using procedures other than sealed-bid procedures, may enter into any kind of contract that he considers will promote the best interests of the United States.

(b) Required Warranty.—

(1) Content.—Each contract awarded under chapter 137 legacy provisions after using procedures other than sealed-bid procedures shall contain a warranty, determined to be suitable by the head of the agency, that the contractor has employed or retained no person or selling agency to solicit or obtain the contract under an understanding or agreement for a commission, percentage, brokerage, or contingent fee, except a bona fide employee or established commercial or selling agency maintained by the contractor to obtain business.

(2) Remedy for Breaking Warranty.—If a contractor breaks such a warranty the United States—

(A) may annul the contract without liability; or

(B) may deduct the commission, percentage, brokerage, or contingent fee from the contract price or consideration.

(3) Inapplicability to Certain Contracts.—This subsection does not apply—

(A) to a contract that is for an amount not greater than the simplified acquisition threshold; or

(B) to a contract for the acquisition of commercial products or commercial services.

(Added and amended Pub. L. 116–283, div. A, title XVIII, §1817(a), (b), (d), Jan. 1, 2021, 134 Stat. 4186.)

Editorial Notes

Codification

The text of subsec. (a) of section 2306 of this title, which was transferred to this section and amended by Pub. L. 116–283, §1817(b), (d)(1), was based on act Aug. 10, 1956, ch. 1041, 70A Stat. 130; Pub. L. 87–653, §1(d), Sept. 10, 1962, 76 Stat. 528; Pub. L. 98–369, div. B, title VII, §2724(a), July 18, 1984, 98 Stat. 1192; Pub. L. 99–145, title XIII, §1303(a)(15), Nov. 8, 1985, 99 Stat. 739.

The text of subsec. (b) of section 2306 of this title, which was transferred to this section and amended by Pub. L. 116–283, §1817(b), (d)(2), was based on act Aug. 10, 1956, ch. 1041, 70A Stat. 130; Pub. L. 98–369, div. B, title VII, §2724(b), July 18, 1984, 98 Stat. 1193; Pub. L. 103–355, title IV, §4102(b), Oct. 13, 1994, 108 Stat. 3340; Pub. L. 115–232, div. A, title VIII, §836(c)(4), Aug. 13, 2018, 132 Stat. 1865.

Amendments

2021—Subsec. (a). Pub. L. 116–283, §1817(b), (d)(1), transferred subsec. (a) of section 2306 of this title to this section, inserted heading before second sentence, and substituted "section 3322(a) of this title" for "the preceding sentence", "provisions of this chapter" for "provisions of this section", and "under chapter 137 legacy provisions" for "under this chapter". Former first sentence of subsec. (a) designated section 3322(a) of this title.

Subsec. (b). Pub. L. 116–283, §1817(b), (d)(2), transferred subsec. (b) of section 2306 of this title to this section, inserted heading, and designated first, second, and third sentences as pars. (1) to (3), respectively.

Subsec. (b)(1). Pub. L. 116–283, §1817(d)(2)(A)–(C), inserted heading and substituted "under chapter 137 legacy provisions" for "under this chapter" and "maintained by the contractor" for "maintained by him".

Subsec. (b)(2). Pub. L. 116–283, §1817(d)(2)(E), inserted heading, inserted dash after "the United States" and subpar. (A) designation before "may annul", substituted "liability; or" for "liability or", and inserted subpar. (B) designation before "may deduct".

Subsec. (b)(3). Pub. L. 116–283, §1817(d)(2)(F), inserted heading, inserted dash after "does not apply" and subpar. (A) designation before "to a contract that is", substituted "threshold; or" for "threshold or", and inserted subpar. (B) designation before "to a contract for the acquisition".

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.

§3322. Cost contracts

(a) Cost-plus-a-percentage-of-cost System of Contracting Prohibited.—The cost-plus-a-percentage-of-cost system of contracting may not be used.

(b) Cost-plus-a-fixed-fee Contracts.—The fee for performing a cost-plus-a-fixed-fee contract for experimental, developmental, or research work may not be more than 15 percent of the estimated cost of the contract, not including the fee. The fee for performing a cost-plus-a-fixed-fee contract for architectural or engineering services for a public work or utility plus the cost of those services to the contractor may not be more than 6 percent of the estimated cost of that work or project, not including fees. The fee for performing any other cost-plus-a-fixed-fee contract may not be more than 10 percent of the estimated cost of the contract, not including the fee. Determinations under this subsection of the estimated costs of a contract or project shall be made by the head of the agency at the time the contract is made.

(c) Advance Notice of Certain Subcontracts.—

(1) In general.—Except as provided in paragraph (2), each cost contract and each cost-plus-a-fixed-fee contract shall provide for notice to the agency by the contractor before the making, under the prime contract, of—

(A) a cost-plus-a-fixed-fee subcontract; or

(B) a fixed-price subcontract or purchase order involving more than the greater of (i) the simplified acquisition threshold, or (ii) 5 percent of the estimated cost of the prime contract.

(2) Exception.—Paragraph (1) shall not apply to a prime contract with a contractor that maintains a purchasing system approved by the contracting officer for the contract.

(d) Limitation on Certain Options.—

(1) In general.—Except as provided by paragraph (2), a covered contract shall limit the number of low-rate production lots for any production quantities procured using fixed-priced options under such covered contract to not more than one.

(2) Waiver.—

(A) In general.—The service acquisition executive of the military department concerned or, in the case of program that is a joint program, the Secretary of Defense may waive the limit required under paragraph (1) with respect to the number of low-rate production lots for a production quantity under a covered contract if such service acquisition executive or the Secretary of Defense, as applicable, determines that such waiver is in the best interest of the Department of Defense.

(B) Delegation limit.—Neither a service acquisition executive nor the Secretary of Defense may delegate the authority under subparagraph (A) to waive the limit required under paragraph (1) below the level of a service acquisition executive.

(3) Definitions.—In this subsection:

(A) The term "covered contract" means a cost reimbursement contract for the development of a major system.

(B) The term "low-rate initial production" has the same meaning as in section 4231 of this title.

(C) The term "major system" has the meaning given such term in section 3041 of this title.

(Added and amended Pub. L. 116–283, div. A, title XVIII, §1817(a), (c), (e), (f), Jan. 1, 2021, 134 Stat. 4186, 4187; Pub. L. 118–159, div. A, title VIII, §802(a), Dec. 23, 2024, 138 Stat. 1965.)

Editorial Notes

Codification

For derivation of subsec. (a) of this section, see Codification note related to subsec. (a) of section 2306 of this title set out under section 3321 of this title.

The text of subsec. (d) of section 2306 of this title, which was transferred to this section, redesignated as subsec. (b), and amended by Pub. L. 116–283, §1817(e), (f)(2), was based on act Aug. 10, 1956, ch. 1041, 70A Stat. 131.

The text of subsec. (e) of section 2306 of this title, which was transferred to this section, redesignated as subsec. (c), and amended by Pub. L. 116–283, §1817(e), (f)(3), was based on act Aug. 10, 1956, ch. 1041, 70A Stat. 131; Pub. L. 98–369, div. B, title VII, §2724, July 18, 1984, 98 Stat. 1193; Pub. L. 102–25, title VII, §701(d)(3), Apr. 6, 1991, 105 Stat. 114; Pub. L. 103–355, title IV, 4401(c), Oct. 13, 1994, 108 Stat. 3348; Pub. L. 108–136, div. A, title VIII, §842, Nov. 24, 2003, 117 Stat. 1552.

Amendments

2024—Subsec. (d). Pub. L. 118–159 added subsec. (d).

2021—Subsec. (a). Pub. L. 116–283, §1817(c), (f)(1), transferred first sentence of subsec. (a) of section 3321 of this title to this section, designated it as subsec. (a), and inserted heading.

Subsec. (b). Pub. L. 116–283, §1817(e), (f)(2), redesignated subsec. (d) of section 2306 of this title as subsec. (b) of this section and inserted heading.

Subsec. (c). Pub. L. 116–283, §1817(e), (f)(3), redesignated subsec. (e) of section 2306 of this title as subsec. (c) of this section, inserted subsec. and par. headings, and realigned margin of par. (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.

Conforming Regulations

Pub. L. 118–159, div. A, title VIII, §802(b), Dec. 23, 2024, 138 Stat. 1965, provided that: "Not later than 120 days after the date of the enactment of this Act [Dec. 23, 2024], the Secretary of Defense shall revise the Department of Defense Supplement to the Federal Acquisition Regulation to implement subsection (d) of section 3322 of title 10, United States Code, as added by subsection (a) of this section."

§3323. Cost-plus contracting prohibited for military construction and military family housing projects

(a) Prohibition.—A contract entered into by the United States in connection with a military construction project or a military family housing project may not use any form of cost-plus contracting.

(b) Applicability.—The prohibition specified in subsection (a)—

(1) is in addition to the prohibition specified in section 3322(a) of this title on the use of the cost-plus-a-percentage-of-cost system of contracting; and

(2) applies notwithstanding a declaration of war or the declaration by the President of a national emergency under section 201 of the National Emergencies Act (50 U.S.C. 1621) that includes the use of the armed forces.

(Added and amended Pub. L. 116–283, div. A, title XVIII, §1817(a), (g), Jan. 1, 2021, 134 Stat. 4186, 4187; Pub. L. 118–31, div. A, title XVIII, §1801(a)(27), Dec. 22, 2023, 137 Stat. 684.)

Editorial Notes

Codification

The text of subsec. (c) of section 2306 of this title, which was transferred to this section and amended by Pub. L. 116–283, §1817(g), was based on Pub. L. 112–81, div. B, title XXVIII, §2801(a), Dec. 31, 2011, 125 Stat. 1684.

Amendments

2023—Subsec. (b)(2). Pub. L. 118–31 struck out period after "notwithstanding".

2021—Subsec. (a). Pub. L. 116–283, §1817(g)(1), (2), redesignated subsec. (c) of section 2306 of this title as subsec. (a) of this section and inserted heading. Former second sentence of subsec. (a) designated subsec. (b).

Subsec. (b). Pub. L. 116–283, §1817(g)(1), (3), designated second sentence of subsec. (a) as subsec. (b), inserted heading, and substituted "The prohibition specified in subsection (a)—

"(1) is in addition to the prohibition specified in section 3322(a) of this title on the use of the cost-plus-a-percentage-of-cost system of contracting; and

"(2) applies notwithstanding. a declaration"

for "This prohibition is in addition to the prohibition specified in subsection (a) on the use of the cost-plus-a-percentage-of-cost system of contracting and applies notwithstanding a declaration".

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.

§3324. [Reserved]

(Added Pub. L. 116–283, div. A, title XVIII, §1817(a), Jan. 1, 2021, 134 Stat. 4186; amended Pub. L. 117–81, div. A, title XVII, §1701(i)(4)(B), Dec. 27, 2021, 135 Stat. 2141.)

Editorial Notes

Amendments

2021—Pub. L. 117–81, §1701(i)(4)(B), amended Pub. L. 116–283, §1817(a), which enacted this section, by adding section 3324 designation and heading "[Reserved]" and striking out former section 3324 heading and catchline "Preference for fixed-price contracts".

Statutory Notes and Related Subsidiaries

Effective Date of 2021 Amendment

Amendment made to Pub. L. 116–283 by Pub. L. 117–81, resulting in omission of this section, applicable as if included in the enactment of title XVIII of Pub. L. 116–283 as enacted, see section 1701(a)(2) of Pub. L. 117–81, set out in a note preceding section 3001 of this title and Effective Date note below.

Effective Date

Section 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.

CHAPTER 243—OTHER MATTERS RELATING TO AWARDING OF CONTRACTS

        

Editorial Notes

Prior Provisions

A prior chapter 243 "SPECIFIC TYPES OF CONTRACTS", as added by Pub. L. 115–232, div. A, title VIII, §801(a), Aug. 13, 2018, 132 Stat. 1827, and consisting of reserved section 3351, was repealed by Pub. L. 116–283, div. A, title XVIII, §1816(b), Jan. 1, 2021, 134 Stat. 4182.

Amendments

2021—Pub. L. 117–81, div. A, title XVII, §1701(v)(1)(B), Dec. 27, 2021, 135 Stat. 2154, amended Pub. L. 116–283, div. A, title XVIII, §1818(a), Jan. 1, 2021, 134 Stat. 4188, which added this analysis, by striking out item 3345 "Contract authority for advanced development of initial or additional prototype units".

Statutory Notes and Related Subsidiaries

Assuring Integrity of Overseas Fuel Supplies

Pub. L. 117–81, div. A, title VIII, §843, Dec. 27, 2021, 135 Stat. 1840, provided that:

"(a) In General.—Before awarding a contract to an offeror for the supply of fuel for any overseas contingency operation, the Secretary of Defense shall—

"(1) ensure, to the maximum extent practicable, that no otherwise responsible offeror is disqualified for such award on the basis of an unsupported denial of access to a facility or equipment by the host nation government; and

"(2) require assurances that the offeror will comply with the requirements of subsections (b) and (c).

"(b) Requirement.—An offeror for the supply of fuel for any overseas contingency operation shall—

"(1) certify that the provided fuel, in whole or in part, or derivatives of such fuel, is not sourced from a nation or region prohibited from selling petroleum to the United States; and

"(2) furnish such records as are necessary to verify compliance with such anticorruption statutes and regulations as the Secretary determines necessary, including—

"(A) the Foreign Corrupt Practices Act [of 1977] ([see] 15 U.S.C. 78dd–1 et seq.);

"(B) the regulations contained in parts 120 through 130 of title 22, Code of Federal Regulations, or successor regulations (commonly known as the 'International Traffic in Arms Regulations');

"(C) the regulations contained in parts 730 through 774 of title 15, Code of Federal Regulations, or successor regulations (commonly known as the 'Export Administration Regulations'); and

"(D) such regulations as may be promulgated by the Office of Foreign Assets Control of the Department of the Treasury.

"(c) Applicability.—Subsections (a) and (b) of this section shall apply with respect to contracts entered into on or after the date of the enactment of this Act [Dec. 27, 2021].

"(d) Consideration of Tradeoff Processes.—If the Secretary of Defense awards a contract for fuel procurement for an overseas contingency operation, the contracting officer for such contract shall consider tradeoff processes (as described in subpart 15 of the Federal Acquisition Regulation, or any successor regulation), including consideration of past performance evaluation, cost, anticorruption training, and compliance. With respect to any such contract awarded for which the contracting officer does not consider tradeoff processes, the contracting officer shall, before issuing a solicitation for such contract, submit to the Secretary a written justification for not considering tradeoff processes in awarding such contract."

Guidance, Training, and Report on Place of Performance Contract Requirements

Pub. L. 117–81, div. A, title VIII, §875, Dec. 27, 2021, 135 Stat. 1865, provided that:

"(a) Guidance and Training.—Not later than July 1, 2022, the Secretary of Defense shall—

"(1) issue guidance on covered contracts to ensure that, to the maximum extent practicable, the terms of such covered contract avoid specifying an unnecessarily restrictive place of performance for such covered contract; and

"(2) implement any necessary training for appropriate individuals relating to the guidance required under paragraph (1).

"(b) Report.—

"(1) In general.—Not later than July 1, 2022, the Secretary of Defense shall submit to the congressional defense committees [Committees on Armed Services and Appropriations of the Senate and the House of Representatives] a report on covered contracts.

"(2) Elements.—The report required under paragraph (1) shall include the following elements:

"(A) A description of the criteria that is considered when the Secretary specifies a particular place of performance in a covered contract.

"(B) The number of covered contracts awarded during each of fiscal years 2016 through 2020.

"(C) An assessment of the extent to which revisions to guidance or regulations related to the use of covered contracts could improve the effectiveness and efficiency of the Department of Defense, including a description of such revisions.

"(c) Covered Contract Defined.—In this section, the term 'covered contract' means a contract for which the Secretary of Defense specifies the place of performance for such contract."

Department of Defense Contracting Dispute Matters

Pub. L. 115–232, div. A, title VIII, §822, Aug. 13, 2018, 132 Stat. 1853, provided that:

"(a) In General.—Not later than 180 days after the date of the enactment of this Act [Aug. 13, 2018], the Secretary of Defense shall carry out a study of the frequency and effects of bid protests involving the same contract award or proposed award that have been filed at both the Government Accountability Office and the United States Court of Federal Claims. The study shall cover Department of Defense contracts and include, at a minimum—

"(1) the number of protests that have been filed with both tribunals and results;

"(2) the number of such protests where the tribunals differed in denying or sustaining the action;

"(3) the length of time, in average time and median time—

"(A) from initial filing at the Government Accountability Office to decision in the United States Court of Federal Claims;

"(B) from filing with each tribunal to decision by such tribunal;

"(C) from the time at which the basis of the protest is known to the time of filing in each tribunal; and

"(D) in the case of an appeal from a decision of the United States Court of Federal Claims, from the date of the initial filing of the appeal to decision in the appeal;

"(4) the number of protests where performance was stayed or enjoined and for how long;

"(5) if performance was stayed or enjoined, whether the requirement was obtained in the interim through another vehicle or in-house, or whether during the period of the stay or enjoining the requirement went unfulfilled;

"(6) separately for each tribunal, the number of protests where performance was stayed or enjoined and monetary damages were awarded, which shall include for how long performance was stayed or enjoined and the amount of monetary damages;

"(7) whether the protestor was a large or small business; and

"(8) whether the protestor was the incumbent in a prior contract for the same or similar product or service.

"(b) Report.—Not later than 180 days after the date of the enactment of this Act, the Secretary of Defense shall submit to the congressional defense committees [Committees on Armed Services and Appropriations of the Senate and the House of Representatives], the Committee on the Judiciary of the Senate, and the Committee on the Judiciary of the House of Representatives a report on the results of the study, along with related recommendations for improving the expediency of the bid protest process. In preparing the report, the Secretary shall consult with the Attorney General of the United States, the Comptroller General of the United States, and the United States Court of Federal Claims.

"(c) Ongoing Data Collection.—Not later than 270 days after the date of the enactment of this Act, the Secretary of Defense shall establish and continuously maintain a data repository to collect on an ongoing basis the information described in subsection (a) and any additional relevant bid protest data the Secretary determines necessary and appropriate to allow the Department of Defense, the Government Accountability Office, and the United States Court of Federal Claims to assess and review bid protests over time.

"(d) Establishment of Expedited Process for Small Value Contracts.—

"(1) In general.—Not later than December 1, 2019, the Secretary of Defense shall develop a plan and schedule for an expedited bid protest process for Department of Defense contracts with a value of less than $100,000.

"(2) Consultation.—In carrying out paragraph (1), the Secretary of Defense may consult with the Government Accountability Office and the United States Court of Federal Claims to the extent such entities may establish a similar process at their election.

"(3) Report.—Not later than May 1, 2019, the Secretary of Defense shall submit to the congressional defense committees a report on the plan and schedule for implementation of the expedited bid protest process, which shall include a request for any additional authorities the Secretary determines appropriate for such efforts."

Guidance on Use of Tiered Evaluations of Offers for Contracts and Task Orders Under Contracts

Pub. L. 109–163, div. A, title VIII, §816, Jan. 6, 2006, 119 Stat. 3382, provided that:

"(a) Guidance Required.—The Secretary of Defense shall prescribe guidance for the military departments and the Defense Agencies on the use of tiered evaluations of offers for contracts and for task or delivery orders under contracts.

"(b) Elements.—The guidance prescribed under subsection (a) shall include a prohibition on the initiation by a contracting officer of a tiered evaluation of an offer for a contract or for a task or delivery order under a contract unless the contracting officer—

"(1) has conducted market research in accordance with part 10 of the Federal Acquisition Regulation in order to determine whether or not a sufficient number of qualified small businesses are available to justify limiting competition for the award of such contract or task or delivery order under applicable law and regulations;

"(2) is unable, after conducting market research under paragraph (1), to make the determination described in that paragraph; and

"(3) includes in the contract file a written explanation of why such contracting officer was unable to make such determination."

Authorization of Evaluation Factor for Defense Contractors Employing or Subcontracting With Members of the Selected Reserve of the Reserve Components of the Armed Forces

Pub. L. 109–163, div. A, title VIII, §819, Jan. 6, 2006, 119 Stat. 3385, as amended by Pub. L. 116–283, div. A, title VIII, §821, Jan. 1, 2021, 134 Stat. 3753, provided that:

"(a) Defense Contracts.—In awarding any contract for the procurement of goods or services to an entity, the Secretary of Defense is authorized to use as an evaluation factor whether the entity intends to carry out the contract using employees or individual subcontractors who are members of the Selected Reserve of the reserve components of the Armed Forces.

"(b) Regulations.—The Federal Acquisition Regulation shall be revised as necessary to implement this section."

§3344. Disclosure of identity of contractor

The Secretary of Defense may disclose the identity or location of a person awarded a contract by the Department of Defense to any individual, including a Member of Congress, only after the Secretary makes a public announcement identifying the contractor. When the identity of a contractor is to be made public, the Secretary shall announce publicly that the contract has been awarded and the identity of the contractor.

(Added Pub. L. 97–295, §1(26)(A), Oct. 12, 1982, 96 Stat. 1291, §2316; renumbered §3344, Pub. L. 116–283, div. A, title XVIII, §1818(b), Jan. 1, 2021, 134 Stat. 4188; amended Pub. L. 117–81, div. A, title XVII, §1701(b)(7), Dec. 27, 2021, 135 Stat. 2133.)

Historical and Revision Notes

Revised section	Source (U.S. Code)	Source (Statutes at Large)
2316	10:2304 (note).	Oct. 7, 1970, Pub. L. 91–441, §507, 84 Stat. 913.

The words "company, or corporation" are omitted as included in "person" because of section 1:1. The words "On and after the date of enactment of this Act" are omitted as executed. The word "contractor" is substituted for "person, company, or corporation to whom such contract has been awarded" and "person, company, or corporation to whom any defense contract has been awarded" to eliminate unnecessary words. The words "and the identity of the contractor" are substituted for "and to whom it was awarded" for clarity.

Editorial Notes

Prior Provisions

Prior sections 3351 and 3352 were renumbered sections 12211 and 12213 of this title, respectively.

Prior sections 3353 and 3354 were repealed by Pub. L. 103–337, div. A, title XVI, §§1629(a)(1), 1691(b)(1), Oct. 5, 1994, 108 Stat. 2963, 3026, effective Oct. 1, 1996.

Section 3353, added Pub. L. 85–861, §1(80)(B), Sept. 2, 1958, 72 Stat. 1468; amended Pub. L. 86–559, §1(8), June 30, 1960, 74 Stat. 265; Pub. L. 96–513, title II, §205(a), Dec. 12, 1980, 94 Stat. 2881; Pub. L. 97–22, §5(c), July 10, 1981, 95 Stat. 128; Pub. L. 98–94, title X, §1007(c)(3), Sept. 24, 1983, 97 Stat. 662; Pub. L. 100–180, div. A, title VII, §714(b), Dec. 4, 1987, 101 Stat. 1112; Pub. L. 103–160, div. A, title V, §509(b), Nov. 30, 1993, 107 Stat. 1647, related to service credit upon original appointment as reserve commissioned officer in Army. See section 12207 of this title.

Section 3354, acts Aug. 10, 1956, ch. 1041, 70A Stat. 194; Sept. 2, 1958, Pub. L. 85–861, §1(80)(C), 72 Stat. 1468, related to appointment of warrant officers and enlisted members of Army National Guard of United States as reserve officers.

A prior section 3355, acts Aug. 10, 1956, ch. 1041, 70A Stat. 194; Sept. 2, 1958, Pub. L. 85–861, §33(a)(22), 72 Stat. 1565, related to appointment of graduates of Reserve Officers' Training Corps as reserve commissioned officers, prior to repeal by Pub. L. 88–647, title III, §301(5), Oct. 13, 1964, 78 Stat. 1071. See section 2106 of this title.

Prior sections 3357 to 3370 were repealed by Pub. L. 103–337, div. A, title XVI, §§1629(a)(1), 1691(b)(1), Oct. 5, 1994, 108 Stat. 2963, 3026, effective Oct. 1, 1996.

Section 3357, acts Aug. 10, 1956, ch. 1041, 70A Stat. 194; Sept. 2, 1958, Pub. L. 85–861, §1(60), (80)(D), 72 Stat. 1462, 1468, related to eligibility for appointment as reserve officer for service in Army Reserve in Army Nurse Corps or Army Medical Specialist Corps.

Section 3359, added Pub. L. 85–861, §1(80)(E), Sept. 2, 1958, 72 Stat. 1469; amended Pub. L. 98–94, title X, §1014(a), Sept. 24, 1983, 97 Stat. 666; Pub. L. 98–525, title V, §521(a), Oct. 19, 1984, 98 Stat. 2522; Pub. L. 99–145, title V, §521(a), Nov. 8, 1985, 99 Stat. 631; Pub. L. 100–180, div. A, title V, §502(a), Dec. 4, 1987, 101 Stat. 1085; Pub. L. 101–189, div. A, title V, §503(a), Nov. 29, 1989, 103 Stat. 1437; Pub. L. 102–484, div. A, title V, §519(a), Oct. 23, 1992, 106 Stat. 2408; Pub. L. 103–160, div. A, title V, §514(a), Nov. 30, 1993, 107 Stat. 1649; Pub. L. 104–106, div. A, title V, §511(a), Feb. 10, 1996, 110 Stat. 298, related to determination of grade upon original appointment as reserve officer of Army. See section 12201 et seq. of this title.

Section 3360, added Pub. L. 85–861, §1(80)(E), Sept. 2, 1958, 72 Stat. 1469; amended Pub. L. 86–559, §1(9), June 30, 1960, 74 Stat. 266; Pub. L. 96–513, title V, §§502(10), 512(4), Dec. 12, 1980, 94 Stat. 2910, 2929; Pub. L. 98–94, title X, §1016(b), Sept. 24, 1983, 97 Stat. 668, related to service required for promotion of Reserve commissioned officers. See section 14001 et seq. of this title.

Section 3362, added Pub. L. 85–861, §1(80)(E), Sept. 2, 1958, 72 Stat. 1470; amended Pub. L. 86–559, §1(10), June 30, 1960, 74 Stat. 266, related to convening of selection boards to consider Reserve commissioned officers for promotion. See section 14101 et seq. of this title.

Section 3363, added Pub. L. 85–861, §1(80)(E), Sept. 2, 1958, 72 Stat. 1470; amended Pub. L. 86–559, §1(11), June 30, 1960, 74 Stat. 266; Pub. L. 95–485, title VIII, §820(e)(1), Oct. 20, 1978, 92 Stat. 1627; Pub. L. 100–456, div. A, title XII, §1234(a)(1), Sept. 29, 1988, 102 Stat. 2059, related to requirements and procedures for promotion of officers in reserve grades. See section 14301 et seq. of this title.

Section 3364, added Pub. L. 85–861, §1(80)(E), Sept. 2, 1958, 72 Stat. 1471; amended Pub. L. 86–559, §1(12), June 30, 1960, 74 Stat. 266; Pub. L. 95–485, title VIII, §820(e)(2)–(4), Oct. 20, 1978, 92 Stat. 1627; Pub. L. 98–525, title V, §512, Oct. 19, 1984, 98 Stat. 2521; Pub. L. 100–456, div. A, title XII, §1234(a)(4), Sept. 29, 1988, 102 Stat. 2059, related to commissioned reserve officers' selection for promotion, order of promotion, zone of consideration lists, and declinations of promotion. See section 14301 et seq. of this title.

Section 3365, added Pub. L. 85–861, §1(80)(E), Sept. 2, 1958, 72 Stat. 1472, related to promotion of second lieutenants of Army Reserve. See section 14301 et seq. of this title.

Section 3366, added Pub. L. 85–861, §1(80)(E), Sept. 2, 1958, 72 Stat. 1472; amended Pub. L. 86–559, §1(13), June 30, 1960, 74 Stat. 267; Pub. L. 90–130, §1(11)(A), Nov. 8, 1967, 81 Stat. 375, related to promotion of first lieutenants, captains, and majors of Army Reserve or Army National Guard of United States. See section 14301 et seq. of this title.

Section 3367, added Pub. L. 85–861, §1(80)(E), Sept. 2, 1958, 72 Stat. 1473; amended Pub. L. 86–559, §1(14), June 30, 1960, 74 Stat. 268; Pub. L. 90–130, §1(11)(B), Nov. 8, 1967, 81 Stat. 375, related to promotion of first lieutenants, captains, and majors of Army Reserve to fill vacancies. See section 14301 et seq. of this title.

Section 3368, added Pub. L. 85–861, §1(80)(E), Sept. 2, 1958, 72 Stat. 1474, related to second consideration for promotion of first lieutenants, captains, and majors of Army Reserve. See section 14301 et seq. of this title.

Section 3369, added Pub. L. 85–861, §1(80)(E), Sept. 2, 1958, 72 Stat. 1474, related to first promotion of reserve officers not assigned to unit after transfer from unit or from Army National Guard of United States.

Section 3370, added Pub. L. 85–861, §1(80)(E), Sept. 2, 1958, 72 Stat. 1474; amended Pub. L. 86–559, §1(15), June 30, 1960, 74 Stat. 269; Nov. 8, 1967, Pub. L. 90–130, §1(11)(C), (D), 81 Stat. 375; Pub. L. 100–456, div. A, title XII, §1234(a)(5), Sept. 29, 1988, 102 Stat. 2059, related to promotion of officers to grade of colonel to fill vacancies. See section 14301 et seq. of this title.

Amendments

2021—Pub. L. 116–283, §1818(b), as amended by Pub. L. 117–81, §1701(b)(7), renumbered section 2316 of this title as this section.

Statutory Notes and Related Subsidiaries

Effective Date of 2021 Amendment

Amendment by Pub. L. 117–81 applicable as if included in the enactment of title XVIII of Pub. L. 116–283 as enacted, see section 1701(a)(2) of Pub. L. 117–81, set out in a note preceding section 3001 of this title and note below.

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 a note preceding section 3001 of this title.

[§3345. Omitted]

Editorial Notes

Codification

Pub. L. 116–283, div. A, title XVIII, §1818(c), Jan. 1, 2021, 134 Stat. 4188, initially transferred section 2302e of this title to this section, to become effective Jan. 1, 2022. Pub. L. 117–81, div. A, title XVII, §1701(v)(1)(A), Dec. 27, 2021, 135 Stat. 2154, repealed section 1818(c) of Pub. L. 116–283, effective as if included therein, which eliminated that transfer, thereby omitting this section before it took effect. Another amendment by Pub. L. 117–81 resulted in the transfer of section 2302e to section 4004 of this title.

CHAPTER 244—UNDEFINITIZED CONTRACTUAL ACTIONS

        

Statutory Notes and Related Subsidiaries

Implementation and Enforcement of Requirements Applicable to Undefinitized Contractual Actions

Pub. L. 110–181, div. A, title VIII, §809, Jan. 28, 2008, 122 Stat. 216, provided that:

"(a) Guidance and Instructions.—Not later than 180 days after the date of the enactment of this Act [Jan. 28, 2008], the Secretary of Defense shall issue guidance, with detailed implementation instructions, for the Department of Defense to ensure the implementation and enforcement of requirements applicable to undefinitized contractual actions.

"(b) Elements.—The guidance and instructions issued pursuant to subsection (a) shall address, at a minimum—

"(1) the circumstances in which it is, and is not, appropriate for Department of Defense officials to use undefinitized contractual actions;

"(2) approval requirements (including thresholds) for the use of undefinitized contractual actions;

"(3) procedures for ensuring that timelines for the definitization of undefinitized contractual actions are met;

"(4) procedures for ensuring compliance with regulatory limitations on the obligation of funds pursuant to undefinitized contractual actions;

"(5) procedures for ensuring compliance with regulatory limitations on profit or fee with respect to costs incurred before the definitization of an undefinitized contractual action; and

"(6) reporting requirements for undefinitized contractual actions that fail to meet required timelines for definitization or fail to comply with regulatory limitations on the obligation of funds or on profit or fee.

"(c) Reports.—

"(1) Report on guidance and instructions.—Not later than 210 days after the date of the enactment of this Act [Jan. 28, 2008], the Secretary of Defense shall submit to the congressional defense committees [Committees on Armed Services and Appropriations of the Senate and the House of Representatives] a report setting forth the guidance and instructions issued pursuant to subsection (a).

"(2) GAO report.—Not later than two years after the date of the enactment of this Act, the Comptroller General of the United States shall submit to the congressional defense committees a report on the extent to which the guidance and instructions issued pursuant to subsection (a) have resulted in improvements to—

"(A) the level of insight that senior Department of Defense officials have into the use of undefinitized contractual actions;

"(B) the appropriate use of undefinitized contractual actions;

"(C) the timely definitization of undefinitized contractual actions; and

"(D) the negotiation of appropriate profits and fees for undefinitized contractual actions."

§3371. Undefinitized contractual actions: required description of anticipated effect on military department requirements if use of undefinitized contractual action results in delay

The head of an agency may not enter into an undefinitized contractual action unless the request to the head of the agency for authorization of the contractual action includes a description of the anticipated effect on requirements of the military department concerned if a delay is incurred for purposes of determining contractual terms, specifications, and price before performance is begun under the contractual action.

(Added and amended Pub. L. 116–283, div. A, title XVIII, §1819(a), (b), Jan. 1, 2021, 134 Stat. 4189.)

Editorial Notes

Codification

The text of subsec. (a) of section 2326 of this title, which was transferred to this section and amended by Pub. L. 116–283, §1819(b), was based on Pub. L. 99–500, §101(c) [title X, §908(d)(1)(A)], Oct. 18, 1986, 100 Stat. 1783–82, 1783-140, and Pub. L. 99–591, §101(c) [title X, §908(d)(1)(A)], Oct. 30, 1986, 100 Stat. 3341–82, 3341-140; Pub. L. 99–661, div. A, title IX, formerly title IV, §908(d)(1)(A), Nov. 14, 1986, 100 Stat. 3920, renumbered title IX, Pub. L. 100–26, §3(5), Apr. 21, 1987, 101 Stat. 273. Pub. L. 99–500, Pub. L. 99–591, and Pub. L. 99–661 added identical subsections.

Prior Provisions

A prior section 3371, added Pub. L. 85–861, §1(80)(E), Sept. 2, 1958, 72 Stat. 1475, related to promotion of brigadier generals and colonels not assigned to units, prior to repeal by Pub. L. 103–337, div. A, title XVI, §§1629(a)(1), 1691(b)(1), Oct. 5, 1994, 108 Stat. 2963, 3026, effective Oct. 1, 1996. See section 14301 et seq. of this title.

Amendments

2021—Pub. L. 116–283, §1819(b), transferred subsec. (a) of section 2326 of this title to this section and struck out subsec. (a) designation and heading "In General" at beginning.

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.

§3372. Undefinitized contractual actions: requirements and limitations relating to definitization of contractual terms, specifications, and price

(a) Contractual Action to Provide Time for Definitization of Contractual Terms, Specifications, and Price; Limitations on Obligation of Funds.—

(1) Terms for time for definitization to be included in contractual action.—A contracting officer of the Department of Defense may not enter into an undefinitized contractual action unless the contractual action provides for agreement upon contractual terms, specifications, and price by the earlier of—

(A) the end of the 180-day period beginning on the date on which the contractor submits a qualifying proposal to definitize the contractual terms, specifications, and price; or

(B) the date on which the amount of funds obligated under the contractual action is equal to more than 50 percent of the negotiated overall ceiling price for the contractual action.

(2) Limitation on obligation of funds before definitization.—

(A) 50 percent limitation.—Except as provided in subparagraph (B), the contracting officer for an undefinitized contractual action may not obligate with respect to such contractual action an amount that is equal to more than 50 percent of the negotiated overall ceiling price until the contractual terms, specifications, and price are definitized for such contractual action.

(B) 75 percent limitation when contractor submits qualifying proposal.—If a contractor submits a qualifying proposal (as defined in section 3377(b) of this title) to definitize an undefinitized contractual action before an amount equal to more than 50 percent of the negotiated overall ceiling price is obligated on such action, the contracting officer for such action may not obligate with respect to such contractual action an amount that is equal to more than 75 percent of the negotiated overall ceiling price until the contractual terms, specifications, and price are definitized for such contractual action.

(3) Waiver authority.—The head of an agency may waive the provisions of this subsection with respect to a contract of that agency if that head of an agency determines that the waiver is necessary in order to support any of the following operations:

(A) A contingency operation.

(B) A humanitarian or peacekeeping operation.

(4) Inapplicability with respect to purchase of initial spares.—This subsection does not apply to an undefinitized contractual action for the purchase of initial spares.

(b) Limitation on Unilateral Definitization by Contracting Officer.—

(1) In general.—With respect to any undefinitized contractual action with a value greater than $50,000,000, if agreement is not reached on contractual terms, specifications, and price within the period or by the date provided in subsection (a)(1), the contracting officer may not unilaterally definitize those terms, specifications, or price over the objection of the contractor until—

(A) the service acquisition executive for the military department that awarded the contract, or the Under Secretary of Defense for Acquisition and Sustainment if the contract was awarded by a Defense Agency or other component of the Department of Defense, approves the definitization in writing;

(B) the contracting officer provides a copy of the written approval to the contractor; and

(C) a period of 30 calendar days has elapsed after the written approval is provided to the contractor.

(2) Treatment of unilateral definitization of a contract as a final decision.—A unilateral definitization by a contracting officer shall be considered a final decision under chapter 71 of title 41, and a contractor may appeal this decision to the Armed Services Board of Contract Appeals or the United States Court of Federal Claims.

(c) Foreign Military Contracts.—

(1) 180-day requirement.—Except as provided in paragraph (2), a contracting officer of the Department of Defense may not enter into an undefinitized contractual action for a foreign military sale unless the contractual action provides for agreement upon contractual terms, specifications, and price by the end of the 180-day period described in subsection (a)(1)(A).

(2) Waiver authority.—The requirement under paragraph (1) may be waived in accordance with subsection (a)(3).

(Added and amended Pub. L. 116–283, div. A, title XVIII, §1819(a), (c), Jan. 1, 2021, 134 Stat. 4189; Pub. L. 118–159, div. A, title VIII, §803, Dec. 23, 2024, 138 Stat. 1965.)

Editorial Notes

Codification

The text of subsec. (b) of section 2326 of this title, which was transferred to this section, redesignated as subsec. (a), and amended by Pub. L. 116–283, §1819(c)(1), (2), was based on Pub. L. 99–500, §101(c) [title X, §908(d)(1)(A)], Oct. 18, 1986, 100 Stat. 1783–82, 1783-140, and Pub. L. 99–591, §101(c) [title X, §908(d)(1)(A)], Oct. 30, 1986, 100 Stat. 3341–82, 3341-140; Pub. L. 99–661, div. A, title IX, formerly title IV, §908(d)(1)(A), Nov. 14, 1986, 100 Stat. 3920, renumbered title IX, Pub. L. 100–26, §3(5), Apr. 21, 1987, 101 Stat. 273; Pub. L. 103–355, title I, §1505(a), (b), Oct. 13, 1994, 108 Stat. 3298; Pub. L. 105–85, div. A, title VIII, §803(a), Nov. 18, 1997, 111 Stat. 1831; Pub. L. 115–91, div. A, title VIII, §815(b), Dec. 12, 2017, 131 Stat. 1462. Pub. L. 99–500, Pub. L. 99–591, and Pub. L. 99–661 added identical subsections.

The text of subsec. (c) of section 2326 of this title, which was transferred to this section, redesignated as subsec. (b), and amended by Pub. L. 116–283, §1819(c)(1), (3), was based on Pub. L. 115–91, div. A, title VIII, §815(a)(2), Dec. 12, 2017, 131 Stat. 1462.

The text of subsec. (h) of section 2326 of this title, which was transferred to this section, redesignated as subsec. (c), and amended by Pub. L. 116–283, §1819(c)(1), (4), was based on Pub. L. 114–328, div. A, title VIII, §811(3), Dec. 23, 2016, 130 Stat. 2268; Pub. L. 115–91, div. A, title VIII, §815(a)(1), Dec. 12, 2017, 131 Stat. 1462.

Amendments

2024—Subsec. (b). Pub. L. 118–159 designated introductory provisions as par. (1) and inserted heading, redesignated former pars. (1) to (3) as subpars. (A) to (C), respectively, of par. (1) and realigned margins, and added par. (2).

2021—Subsec. (a). Pub. L. 116–283, §1819(c)(1), (2)(A), redesignated subsec. (b) of section 2326 of this title as subsec. (a) of this section and substituted "Contractual Action to Provide Time for Definitization of Contractual Terms, Specifications, and Price; Limitations on Obligation of Funds" for "Limitations on Obligation of Funds" in heading.

Subsec. (a)(1). Pub. L. 116–283, §1819(c)(2)(A), inserted heading.

Subsec. (a)(2). Pub. L. 116–283, §1819(c)(2)(C), inserted par. (2) designation and heading. Former par. (2) redesignated subpar. (A) of par. (2).

Subsec. (a)(2)(A). Pub. L. 116–283, §1819(c)(2)(B), (D), redesignated subsec. (a)(2) as (a)(2)(A), inserted heading, realigned margin, and substituted "Except as provided in subparagraph (B)," for "Except as provided in paragraph (3),".

Subsec. (a)(2)(B). Pub. L. 116–283, §1819(c)(2)(B), (E), redesignated subsec. (a)(3) as (a)(2)(B), inserted heading, realigned margin, and substituted "section 3377(b) of this title" for "subsection (h)".

Subsec. (a)(3). Pub. L. 116–283, §1819(c)(2)(F), redesignated par. (4) as (3) and inserted heading. Former par. (3) redesignated subpar. (B) of par. (2).

Subsec. (a)(4), (5). Pub. L. 116–283, §1819(c)(2)(G), redesignated par. (5) as (4) and inserted heading. Former par. (4) redesignated (3).

Subsec. (b). Pub. L. 116–283, §1819(c)(1), (3), redesignated subsec. (c) of section 2326 of this title as subsec. (b) of this section and substituted "subsection (a)(1)" for "subsection (b)(1)" in introductory provisions.

Subsec. (c). Pub. L. 116–283, §1819(c)(1), redesignated subsec. (h) of section 2326 of this title as subsec. (c) of this section.

Subsec. (c)(1). Pub. L. 116–283, §1819(c)(4)(A), (B), inserted heading and substituted "subsection (a)(1)(A)" for "subsection (b)(1)(A)".

Subsec. (c)(2). Pub. L. 116–283, §1819(c)(4)(C), (D), inserted heading and substituted "subsection (a)(3)" for "subsection (b)(4)".

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.

Existing Agreement Limits for Operation Warp Speed

Pub. L. 117–263, div. A, title VIII, §883, Dec. 23, 2022, 136 Stat. 2746, provided that: "The value of any modification to, or order made under, a contract or other agreement by the Department of Defense on or after March 1, 2020, to address the COVID–19 pandemic through vaccines and other therapeutic measures shall not be counted toward any limit established prior to March 1, 2020, on the total estimated amount of all projects to be issued under the contract or other agreement (except that the value of such modification or order shall count toward meeting any guaranteed minimum value under the contract or other agreement)."

Relaxation of Undefinitized Contract Action Limitations and Restrictions Related to National Emergency for Coronavirus Disease 2019

Pub. L. 116–136, div. B, title III, §13004, Mar. 27, 2020, 134 Stat. 522, provided that:

"(a) Section 2326(b)(3) of title 10, United States Code [now 10 U.S.C. 3372(a)(2)(B)], shall not apply to any undefinitized contract action of the Department of Defense related to the national emergency for the Coronavirus Disease 2019 (COVID–19).

"(b) In this section, the term 'undefinitized contract action' has the meaning given that term in section 2326(j)(6) of title 10, United States Code [probably means section 2326(j)(1) of title 10, now 10 U.S.C. 3377(b)(1), which defines "undefinitized contractual action"]."

Pub. L. 116–136, div. B, title III, §13005, Mar. 27, 2020, 134 Stat. 522, provided that:

"(a) The head of an agency may waive the provisions of section 2326(b) of title 10, United States Code [now 10 U.S.C. 3372(a)], with respect to a contract of such agency if the head of the agency determines that the waiver is necessary due to the national emergency for the Coronavirus Disease 2019 (COVID–19).

"(b) In this section, the term 'head of an agency' has the meaning given that term in section 2302(2) [probably means section 2302(1); now 10 U.S.C. 3004] of title 10, United States Code."

§3373. Undefinitized contractual actions: limitation on inclusion of non-urgent requirements and on modification of scope

(a) Inclusion of Non-Urgent Requirements.—Requirements for spare parts and support equipment that are not needed on an urgent basis may not be included in an undefinitized contractual action for spare parts and support equipment that are needed on an urgent basis unless the head of the agency approves such inclusion as being—

(1) good business practice; and

(2) in the best interests of the United States.

(b) Modification of Scope.—The scope of an undefinitized contractual action under which performance has begun may not be modified unless the head of the agency approves such modification as being—

(1) good business practice; and

(2) in the best interests of the United States.

(Added and amended Pub. L. 116–283, div. A, title XVIII, §1819(a), (d), Jan. 1, 2021, 134 Stat. 4189, 4190.)

Editorial Notes

Codification

The text of subsecs. (d) and (e) of section 2326 of this title, which were transferred to this section, redesignated as subsecs. (a) and (b), respectively, and amended by Pub. L. 116–283, §1819(d), was based on Pub. L. 99–500, §101(c) [title X, §908(d)(1)(A)], Oct. 18, 1986, 100 Stat. 1783–82, 1783-141, and Pub. L. 99–591, §101(c) [title X, §908(d)(1)(A)], Oct. 30, 1986, 100 Stat. 3341–82, 3341-141; Pub. L. 99–661, div. A, title IX, formerly title IV, §908(d)(1)(A), Nov. 14, 1986, 100 Stat. 3920, 3921, renumbered title IX, Pub. L. 100–26, §3(5), Apr. 21, 1987, 101 Stat. 273; Pub. L. 115–91, div. A, title VIII, §815(a)(1), Dec. 12, 2017, 131 Stat. 1462. Pub. L. 99–500, Pub. L. 99–591, and Pub. L. 99–661 added identical subsections.

Amendments

2021—Pub. L. 116–283, §1819(d), redesignated subsecs. (d) and (e) of section 2326 of this title as subsecs. (a) and (b), respectively, of this section.

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.

§3374. Undefinitized contractual actions: allowable profit

(a) Allowed Profit to Reflect Certain Reduced Cost Risks of Contractor.—The head of an agency shall ensure that the profit allowed on an undefinitized contractual action for which the final price is negotiated after a substantial portion of the performance required is completed reflects—

(1) the possible reduced cost risk of the contractor with respect to costs incurred during performance of the contract before the final price is negotiated; and

(2) the reduced cost risk of the contractor with respect to costs incurred during performance of the remaining portion of the contract.

(b) Date as of Which Contractor Cost Risk to Be Determined.—If a contractor submits a qualifying proposal to definitize an undefinitized contractual action and the contracting officer for such action definitizes the contract after the end of the 180-day period beginning on the date on which the contractor submitted the qualifying proposal, the head of the agency concerned shall ensure that the profit allowed on the contract accurately reflects the cost risk of the contractor as such risk existed on the date the contractor submitted the qualifying proposal.

(Added and amended Pub. L. 116–283, div. A, title XVIII, §1819(a), (e), Jan. 1, 2021, 134 Stat. 4189, 4190.)

Editorial Notes

Codification

The text of subsec. (f) of section 2326 of this title, which was transferred to this section and amended by Pub. L. 116–283, §1819(e), was based on Pub. L. 99–500, §101(c) [title X, §908(d)(1)(A)], Oct. 18, 1986, 100 Stat. 1783–82, 1783-141, and Pub. L. 99–591, §101(c) [title X, §908(d)(1)(A)], Oct. 30, 1986, 100 Stat. 3341–82, 3341-141; Pub. L. 99–661, div. A, title IX, formerly title IV, §908(d)(1)(A), Nov. 14, 1986, 100 Stat. 3921, renumbered title IX, Pub. L. 100–26, §3(5), Apr. 21, 1987, 101 Stat. 273; Pub. L. 114–328, div. A, title VIII, §811(1), Dec. 23, 2016, 130 Stat. 2268; Pub. L. 115–91, div. A, title VIII, §815(a)(1), Dec. 12, 2017, 131 Stat. 1462. Pub. L. 99–500, Pub. L. 99–591, and Pub. L. 99–661 added identical subsections.

Amendments

2021—Pub. L. 116–283, §1819(e)(1)(A), transferred subsec. (f) of section 2326 of this title to this section and struck out subsec. (f) designation and heading "Allowable Profit" at beginning.

Subsec. (a). Pub. L. 116–283, §1819(e)(1)(B), (2), redesignated par. (1) of former section 2326(f) of this title as subsec. (a) of this section, inserted heading, and redesignated subpars. (A) and (B) as pars. (1) and (2), respectively.

Subsec. (b). Pub. L. 116–283, §1819(e)(1)(B), (3), redesignated par. (2) of former section 2326(f) of this title as subsec. (b) of this section and inserted heading.

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.

§3375. Undefinitized contractual actions: time limit

No undefinitized contractual action may extend beyond 90 days without a written determination by the Secretary of the military department concerned, the head of the Defense Agency concerned, the commander of the combatant command concerned, or the Under Secretary of Defense for Acquisition and Sustainment (as applicable) that it is in the best interests of the military department, the Defense Agency, the combatant command, or the Department of Defense, respectively, to continue the action.

(Added and amended Pub. L. 116–283, div. A, title XVIII, §1819(a), (f), Jan. 1, 2021, 134 Stat. 4189, 4190.)

Editorial Notes

Codification

The text of subsec. (g) of section 2326 of this title, which was transferred to this section and amended by Pub. L. 116–283, §1819(f), was based on Pub. L. 114–328, div. A, title VIII, §811(3), Dec. 23, 2016, 130 Stat. 2268; Pub. L. 115–91, div. A, title VIII, §815(a)(1), Dec. 12, 2017, 131 Stat. 1462; Pub. L. 116–92, div. A, title IX, §902(50), Dec. 20, 2019, 133 Stat. 1548.

Prior Provisions

A prior section 3375, added Pub. L. 85–861, §1(80)(E), Sept. 2, 1958, 72 Stat. 1475, related to transfer or discharge of reserve generals ceasing to occupy commensurate positions, prior to repeal by Pub. L. 103–337, div. A, title XVI, §§1629(a)(1), 1691(b)(1), Oct. 5, 1994, 108 Stat. 2963, 3026, effective Oct. 1, 1996. See section 14314(a) of this title.

Amendments

2021—Pub. L. 116–283, §1819(f), transferred subsec. (g) of section 2326 of this title to this section and struck out subsec. (g) designation and heading "Time Limit" at beginning.

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.

§3377. Inapplicability to Coast Guard and National Aeronautics and Space Administration; definitions

(a) Applicability.—This chapter does not apply to the Coast Guard or the National Aeronautics and Space Administration.

(b) Definitions.—In this chapter:

(1) The term "undefinitized contractual action" means a new procurement action entered into by the head of an agency for which the contractual terms, specifications, or price are not agreed upon before performance is begun under the action. Such term does not include contractual actions with respect to the following:

(A) Purchases in an amount not in excess of the amount of the simplified acquisition threshold.

(B) Special access programs.

(C) Congressionally mandated long-lead procurement contracts.

(2) The term "qualifying proposal" means a proposal that contains sufficient information to enable the Department of Defense to conduct a meaningful audit of the information contained in the proposal.

(Added and amended Pub. L. 116–283, div. A, title XVIII, §1819(a), (g), Jan. 1, 2021, 134 Stat. 4189, 4191.)

Editorial Notes

Codification

The text of subsec. (i) of section 2326 of this title, which was transferred to this section, redesignated as subsec. (a), and amended by Pub. L. 116–283, §1819(g), was based on Pub. L. 99–500, §101(c) [title X, §908(d)(1)(A)], Oct. 18, 1986, 100 Stat. 1783–82, 1783-141, and Pub. L. 99–591, §101(c) [title X, §908(d)(1)(A)], Oct. 30, 1986, 100 Stat. 3341–82, 3341-141; Pub. L. 99–661, div. A, title IX, formerly title IV, §908(d)(1)(A), Nov. 14, 1986, 100 Stat. 3921, renumbered title IX, Pub. L. 100–26, §3(5), Apr. 21, 1987, 101 Stat. 273. Pub. L. 99–500, Pub. L. 99–591, and Pub. L. 99–661 added identical subsections.

The text of subsec. (j) of section 2326 of this title, which was transferred to this section, redesignated as subsec. (b), and amended by Pub. L. 116–283, §1819(g), was based on Pub. L. 99–500, §101(c) [title X, §908(d)(1)(A)], Oct. 18, 1986, 100 Stat. 1783–82, 1783-141, and Pub. L. 99–591, §101(c) [title X, §908(d)(1)(A)], Oct. 30, 1986, 100 Stat. 3341–82, 3341-141; Pub. L. 99–661, div. A, title IX, formerly title IV, §908(d)(1)(A), Nov. 14, 1986, 100 Stat. 3921, renumbered title IX, Pub. L. 100–26, §3(5), Apr. 21, 1987, 101 Stat. 273; Pub. L. 101–189, div. A, title XVI, §1622(c)(6), Nov. 29, 1989, 103 Stat. 1604; Pub. L. 102–25, title VII, §701(d)(5), Apr. 6, 1991, 105 Stat. 114; Pub. L. 103–355, title I, §1505, Oct. 13, 1994, 108 Stat. 3298; Pub. L. 114–328, div. A, title VIII, §811(2), (4), Dec. 23, 2016, 130 Stat. 2268, 2269; Pub. L. 115–91, div. A, title VIII, §815(a)(1), Dec. 12, 2017, 131 Stat. 1462. Pub. L. 99–500, Pub. L. 99–591, and Pub. L. 99–661 added identical subsections.

Prior Provisions

Prior sections 3378 to 3390 were repealed by Pub. L. 103–337, div. A, title XVI, §§1629(a)(1), 1691(b)(1), Oct. 5, 1994, 108 Stat. 2963, 3026, effective Oct. 1, 1996.

Section 3378, added Pub. L. 85–861, §1(80)(E), Sept. 2, 1958, 72 Stat. 1476, related to promotion of reserve commissioned officers removed from active status. See section 14317(a) of this title.

Section 3380, added Pub. L. 85–861, §1(80)(E), Sept. 2, 1958, 72 Stat. 1476; amended Pub. L. 98–94, title X, §1015(a)(1), Sept. 24, 1983, 97 Stat. 667; Pub. L. 99–145, title V, §521(b), Nov. 8, 1985, 99 Stat. 631; Pub. L. 100–180, div. A, title V, §502(b)(1), Dec. 4, 1987, 101 Stat. 1085; Pub. L. 101–189, div. A, title V, §503(b)(1), Nov. 29, 1989, 103 Stat. 1437; Pub. L. 102–484, div. A, title V, §519(b), Oct. 23, 1992, 106 Stat. 2408; Pub. L. 103–160, div. A, title V, §514(b), Nov. 30, 1993, 107 Stat. 1649; Pub. L. 104–106, div. A, title V, §511(b), Feb. 10, 1996, 110 Stat. 298, related to promotion of reserve commissioned officers on active duty and not on the active duty list. See section 14311(e) of this title.

Section 3382, added Pub. L. 85–861, §1(80)(E), Sept. 2, 1958, 72 Stat. 1476, related to promotion of second lieutenants of Army Reserve assigned to units. See section 14301 et seq. of this title.

Section 3383, added Pub. L. 85–861, §1(80)(E), Sept. 2, 1958, 72 Stat. 1477; amended Pub. L. 86–559, §1(16), June 30, 1960, 74 Stat. 270; Pub. L. 88–620, §2, Oct. 3, 1964, 78 Stat. 999; Pub. L. 90–130, §1(11)(E), Nov. 8, 1967, 81 Stat. 376; Pub. L. 95–485, title VIII, §820(e)(5), Oct. 20, 1978, 92 Stat. 1627, related to promotion of officers of Army Reserve to grades of first lieutenant, captain, major, lieutenant colonel, and colonel to fill vacancies. See section 14301 et seq. of this title.

Section 3384, added Pub. L. 85–861, §1(80)(E), Sept. 2, 1958, 72 Stat. 1477, related to promotion of officers of Army Reserve to grades of brigadier general or major general to fill vacancies. See section 14315 of this title.

Section 3385, added Pub. L. 85–861, §1(80)(E), Sept. 2, 1958, 72 Stat. 1477, related to promotion of officers of Army National Guard of United States upon Federal recognition. See section 14308(f) of this title.

Section 3386, added Pub. L. 85–861, §1(80)(E), Sept. 2, 1958, 72 Stat. 1478, related to promotion of reserve commissioned officers upon release from active duty. See section 14301 et seq. of this title.

Section 3388, added Pub. L. 85–861, §1(80)(E), Sept. 2, 1958, 72 Stat. 1478, related to effect of commissioned officer of Army Reserve entering upon active duty while eligible for promotion. See section 14301 et seq. of this title.

Section 3389, added Pub. L. 85–861, §1(80)(E), Sept. 2, 1958, 72 Stat. 1478; amended Pub. L. 86–559, §1(17), June 30, 1960, 74 Stat. 270, related to promotion of commissioned officers of Army Reserve or Army National Guard of United States to higher reserve grades after temporary appointments. See section 14301 et seq. of this title.

Section 3390, added Pub. L. 85–861, §1(80)(E), Sept. 2, 1958, 72 Stat. 1478; amended Pub. L. 100–456, div. A, title XII, §1234(a)(1), Sept. 29, 1988, 102 Stat. 2059, related to procedure for promotion to higher reserve grade of officer of Army National Guard of United States after temporary appointment. See section 14301 et seq. of this title.

A prior section 3391, added Pub. L. 85–861, §1(80)(E), Sept. 2, 1958, 72 Stat. 1479; Pub. L. 86–559, §1(18), June 30, 1960, 74 Stat. 270, prohibited promotion of reserve officers of Army Nurse Corps or Army Medical Specialist Corps to reserve grades above colonel and prohibited promotion of reserve officers of Women's Army Corps to reserve grades above lieutenant colonel, prior to repeal by Pub. L. 90–130, §1(11)(F), Nov. 8, 1967, 81 Stat. 376.

Prior sections 3392 to 3396 were repealed by Pub. L. 103–337, div. A, title XVI, §§1629(a)(1), 1691(b)(1), Oct. 5, 1994, 108 Stat. 2963, 3026, effective Oct. 1, 1996.

Section 3392, added Pub. L. 85–861, §1(80)(E), Sept. 2, 1958, 72 Stat. 1479; amended Pub. L. 100–456, div. A, title XII, §1234(a)(1), Sept. 29, 1988, 102 Stat. 2059, related to appointment of adjutants general or assistant adjutants general as reserve officers of Army. See section 12215(a) of this title.

Section 3393, added Pub. L. 85–861, §1(80)(E), Sept. 2, 1958, 72 Stat. 1479, provided that sea or foreign service not be made condition for promotion of reserve commissioned officers in reserve grades.

Section 3394, act Aug. 10, 1956, ch. 1041, 70A Stat. 195, related to acceptance of promotion by officers of Army National Guard of United States or Army Reserve. See section 14309 of this title.

Section 3395, act Aug. 10, 1956, ch. 1041, 70A Stat. 195, related to appointment of reserve officers in time of war. See section 14301 et seq. of this title.

Section 3396, added Pub. L. 96–513, title II, §206(a), Dec. 12, 1980, 94 Stat. 2884, provided that chapter, except section 3353, did not apply to reserve officers on active-duty list.

Amendments

2021—Pub. L. 116–283, §1819(g), redesignated subsecs. (i) and (j) of section 2326 of this title as subsecs. (a) and (b), respectively, of this section and substituted "chapter" for "section" in subsec. (a) and in introductory provisions of subsec. (b).

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.

CHAPTER 245—TASK AND DELIVERY ORDER CONTRACTS (MULTIPLE AWARD CONTRACTS)

        

Editorial Notes

Prior Provisions

A prior chapter 245 "TASK AND DELIVERY ORDER CONTRACTS (MULTIPLE AWARD CONTRACTS)", as added by Pub. L. 115–232, div. A, title VIII, §801(a), Aug. 13, 2018, 132 Stat. 1827, and consisting of reserved section 3401, was repealed by Pub. L. 116–283, div. A, title XVIII, §1820(a), Jan. 1, 2021, 134 Stat. 4191.

Amendments

2021—Pub. L. 117–81, div. A, title XVII, §1701(b)(8)(A), Dec. 27, 2021, 135 Stat. 2133, amended Pub. L. 116–283, div. A, title XVIII, §1820(a), Jan. 1, 2021, 134 Stat. 4191, which added this analysis, by substituting "[Reserved]" for "Guidance on use of task and delivery order contracts" in item 3404.

Statutory Notes and Related Subsidiaries

Provisions Not Affected by Pub. L. 103–355

Pub. L. 103–355, title I, §1004(d), Oct. 13, 1994, 108 Stat. 3253, as amended by Pub. L. 108–136, div. A, title X, §1045(f), Nov. 24, 2003, 117 Stat. 1613, provided that: "Nothing in section 2304a [now 10 U.S.C. 3403], 2304b [now 10 U.S.C. 3405], 2304c [now 10 U.S.C. 3406], or 2304d [now 10 U.S.C. 3401] of title 10, United States Code, as added by subsection (a), and nothing in the amendments made by subsections (b) and (c) [amending former sections 2304 of this title (now 10 U.S.C. 3201 et seq.) and 2331 of this title (now 10 U.S.C. 4507)], shall be construed as modifying or superseding, or as intended to impair or restrict, authorities or responsibilities under chapter 11 of title 40, United States Code."

§3401. Task and delivery order contracts: definitions

In this chapter:

(1) Delivery order contract.—The term "delivery order contract" means a contract for property—

(A) that does not procure or specify a firm quantity of property (other than a minimum or maximum quantity); and

(B) that provides for the issuance of orders for the delivery of property during the period of the contract.

(2) Task order contract.—The term "task order contract" means a contract for services—

(A) that does not procure or specify a firm quantity of services (other than a minimum or maximum quantity); and

(B) that provides for the issuance of orders for the performance of tasks during the period of the contract.

(Added Pub. L. 103–355, title I, §1004(a)(1), Oct. 13, 1994, 108 Stat. 3253, §2304d; renumbered §3401 and amended Pub. L. 116–283, div. A, title XVIII, §1820(b), Jan. 1, 2021, 134 Stat. 4191.)

Editorial Notes

Amendments

2021—Pub. L. 116–283, §1820(b)(1), (2), renumbered section 2304d of this title as this section, substituted "In this chapter" for "In sections 2304a, 2304b, and 2304c of this title" in introductory provisions, and reversed order and designations of pars. (1) and (2).

Par. (1). Pub. L. 116–283, §1820(b)(3), inserted heading, inserted dash after "for property", and reorganized remainder of text of par. (1) into designated subpars. (A) and (B).

Par. (2). Pub. L. 116–283, §1820(b)(4), inserted heading, inserted dash after "for services", and reorganized remainder of text of par. (2) into designated subpars. (A) and (B).

Statutory Notes and Related Subsidiaries

Effective Date of 2021 Amendment

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 a note preceding section 3001 of this title.

Effective Date

For effective date and applicability of section, see section 10001 of Pub. L. 103–355, set out as an Effective Date of 1994 Amendment note under section 8752 of this title.

Provisions Not Affected by Pub. L. 103–355

This section not to be construed as modifying or superseding, or as intended to impair or restrict, authorities or responsibilities under former 40 U.S.C. 759 or chapter 11 of Title 40, Public Buildings, Property, and Works, see section 1004(d) of Pub. L. 103–355, set out as a note preceding this section.

§3403. Task and delivery order contracts: general authority

(a) Authority To Award.—Subject to the requirements of this section, section 3406 of this title, and other applicable law, the head of an agency may enter into a task or delivery order contract (as defined in section 3401 of this title) for procurement of services or property.

(b) Solicitation.—The solicitation for a task or delivery order contract shall include the following:

(1) The period of the contract, including the number of options to extend the contract and the period for which the contract may be extended under each option, if any.

(2) The maximum quantity or dollar value of the services or property to be procured under the contract.

(3) A statement of work, specifications, or other description that reasonably describes the general scope, nature, complexity, and purposes of the services or property to be procured under the contract.

(c) Applicability of Restriction on Use of Noncompetitive Procedures.—The head of an agency may use procedures other than competitive procedures to enter into a task or delivery order contract under this section only if—

(1) an exception in subsection (a) of section 3204 of this title applies to the contract; and

(2) the use of such procedures is approved in accordance with subsection (e) of such section.

(d) Single and Multiple Contract Awards.—

(1) Exercise of authority.—The head of an agency may exercise the authority provided in this section—

(A) to award a single task or delivery order contract; or

(B) if the solicitation states that the head of the agency has the option to do so, to award separate task or delivery order contracts for the same or similar services or property to two or more sources.

(2) Determination not required.—No determination under section 3203 of this title is required for award of multiple task or delivery order contracts under paragraph (1)(B).

(3) When Single Source Awards for Task or Delivery Order Contracts Exceeding $100,000,000 Are Allowed.—(A) Except as provided under subparagraph (B), no task or delivery order contract in an amount estimated to exceed $100,000,000 (including all options) may be awarded to a single source unless the head of the agency determines in writing that—

(i) the task or delivery orders expected under the contract are so integrally related that only a single source can efficiently perform the work;

(ii) the contract provides only for firm, fixed price task orders or delivery orders for—

(I) products for which unit prices are established in the contract; or

(II) services for which prices are established in the contract for the specific tasks to be performed;

(iii) only one source is qualified and capable of performing the work at a reasonable price to the government; or

(iv) because of exceptional circumstances, it is necessary in the public interest to award the contract to a single source.

(B) A task or delivery order contract in an amount estimated to exceed $100,000,000 (including all options) may be awarded to a single source without the written determination otherwise required under subparagraph (A) if the head of the agency has made a written determination pursuant to section 3204(a) of this title that procedures other than competitive procedures may be used for the awarding of such contract.

(4) Regulations.—The regulations implementing this subsection shall—

(A) establish a preference for awarding, to the maximum extent practicable, multiple task or delivery order contracts for the same or similar services or property under the authority of paragraph (1)(B); and

(B) establish criteria for determining when award of multiple task or delivery order contracts would not be in the best interest of the Federal Government.

(e) Contract Modifications.—A task or delivery order may not increase the scope, period, or maximum value of the task or delivery order contract under which the order is issued. The scope, period, or maximum value of the contract may be increased only by modification of the contract.

(f) Contract Period.—The head of an agency entering into a task or delivery order contract under this section may provide for the contract to cover any period up to five years and may extend the contract period for one or more successive periods pursuant to an option provided in the contract or a modification of the contract. The total contract period as extended may not exceed 10 years unless such head of an agency determines in writing that exceptional circumstances necessitate a longer contract period.

(g) Inapplicability to Contracts for Advisory and Assistance Services.—Except as otherwise specifically provided in section 3405 of this title, this section does not apply to a task or delivery order contract for the procurement of advisory and assistance services (as defined in section 1105(g) of title 31).

(h) Relationship to Other Contracting Authority.—Nothing in this section may be construed to limit or expand any authority of the head of an agency or the Administrator of General Services to enter into schedule, multiple award, or task or delivery order contracts under any other provision of law.

(Added Pub. L. 103–355, title I, §1004(a)(1), Oct. 13, 1994, 108 Stat. 3249, §2304a; amended Pub. L. 108–136, div. A, title VIII, §843(b), Nov. 24, 2003, 117 Stat. 1553; Pub. L. 108–375, div. A, title VIII, §813(a), Oct. 28, 2004, 118 Stat. 2014; Pub. L. 110–181, div. A, title VIII, §843(a)(1), Jan. 28, 2008, 122 Stat. 236; Pub. L. 111–84, div. A, title VIII, §814(a), Oct. 28, 2009, 123 Stat. 2407; Pub. L. 112–81, div. A, title VIII, §809(b), Dec. 31, 2011, 125 Stat. 1490; Pub. L. 115–232, div. A, title VIII, §816, Aug. 13, 2018, 132 Stat. 1852; Pub. L. 116–92, div. A, title VIII, §816, Dec. 20, 2019, 133 Stat. 1487; renumbered §3403 and amended Pub. L. 116–283, div. A, title XVIII, §1820(c), Jan. 1, 2021, 134 Stat. 4191; Pub. L. 117–81, div. A, title XVII, §1701(b)(8)(B), Dec. 27, 2021, 135 Stat. 2133.)

Editorial Notes

Amendments

2021—Pub. L. 116–283, §1820(c)(1), renumbered section 2304a of this title as this section.

Subsec. (a). Pub. L. 116–283, §1820(c)(2), substituted "section 3406" for "section 2304c" and "section 3401" for "section 2304d".

Subsec. (c). Pub. L. 116–283, §1820(c)(3), as amended by Pub. L. 117–81, §1701(b)(8)(B), inserted dash after "only if", reorganized remainder of text of subsec. (c) into designated pars. (1) and (2), and substituted "subsection (a) of section 3204" for "subsection (c) of section 2304" and "subsection (e)" for "subsection (f)".

Subsec. (d)(1). Pub. L. 116–283, §1820(c)(4)(A), inserted heading.

Subsec. (d)(2). Pub. L. 116–283, §1820(c)(4)(B), inserted heading and substituted "section 3203" for "section 2304(b)".

Subsec. (d)(3). Pub. L. 116–283, §1820(c)(4)(C), inserted heading and substituted "section 3204(a)" for "section 2304(c)" in subpar. (B).

Subsec. (d)(4). Pub. L. 116–283, §1820(c)(4)(D), inserted heading.

Subsec. (g). Pub. L. 116–283, §1820(c)(5), substituted "section 3405" for "section 2304b".

2019—Subsec. (d)(3). Pub. L. 116–92 designated existing provisions as subpar. (A), substituted "Except as provided under subparagraph (B), no task or delivery order contract" for "No task or delivery order contract", redesignated former subpars. (A) to (D) as cls. (i) to (iv), respectively, of subpar. (A), redesignated cls. (i) and (ii) of former subpar. (B) as subcls. (I) and (II), respectively, of subpar. (A)(ii), and added subpar. (B).

2018—Subsec. (d)(3)(A). Pub. L. 115–232 substituted "efficiently perform the work" for "reasonably perform the work".

2011—Subsec. (d)(3). Pub. L. 112–81 struck out subpar. (A) designation before "No task", redesignated cls. (i) to (iv) of former subpar. (A) as subpars. (A) to (D), respectively, of par. (3), redesignated subcls. (I) and (II) of former cl. (ii) as cls. (i) and (ii), respectively, of subpar. (B), and struck out former subpar. (B) which read as follows: "The head of the agency shall notify the congressional defense committees within 30 days after any determination under clause (i), (ii), (iii), or (iv) of subparagraph (A)."

2009—Subsec. (d)(3)(B). Pub. L. 111–84 amended subpar. (B) generally. Prior to amendment, subpar. (B) read as follows: "The head of the agency shall notify Congress within 30 days after any determination under subparagraph (A)(iv)."

2008—Subsec. (d)(3), (4). Pub. L. 110–181 added par. (3) and redesignated former par. (3) as (4).

2004—Subsec. (f). Pub. L. 108–375 substituted "any period up to five years and may extend the contract period for one or more successive periods pursuant to an option provided in the contract or a modification of the contract. The total contract period as extended may not exceed 10 years unless such head of an agency determines in writing that exceptional circumstances necessitate a longer contract period" for "a total period of not more than five years".

2003—Subsecs. (f) to (h). Pub. L. 108–136 added subsec. (f) and redesignated former subsecs. (f) and (g) as (g) and (h), respectively.

Statutory Notes and Related Subsidiaries

Effective Date of 2021 Amendment

Amendment by Pub. L. 117–81 applicable as if included in the enactment of title XVIII of Pub. L. 116–283 as enacted, see section 1701(a)(2) of Pub. L. 117–81, set out in a note preceding section 3001 of this title and note below.

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 a note preceding section 3001 of this title.

Effective Date of 2008 Amendment

Pub. L. 110–181, div. A, title VIII, §843(a)(3)(A), Jan. 28, 2008, 122 Stat. 237, provided that: "The amendments made by paragraph (1) [amending this section] shall take effect on the date that is 120 days after the date of the enactment of this Act [Jan. 28, 2008], and shall apply with respect to any contract awarded on or after such date."

Effective Date

For effective date and applicability of section, see section 10001 of Pub. L. 103–355, set out as an Effective Date of 1994 Amendment note under section 8752 of this title.

Provisions Not Affected by Pub. L. 103–355

This section not to be construed as modifying or superseding, or as intended to impair or restrict, authorities or responsibilities under former 40 U.S.C. 759 or chapter 11 of Title 40, Public Buildings, Property, and Works, see section 1004(d) of Pub. L. 103–355, set out as a note preceding section 3401 of this title.

§3405. Task order contracts: advisory and assistance services

(a) Advisory and Assistance Services Defined.—In this section, the term "advisory and assistance services" has the meaning given such term in section 1105(g) of title 31.

(b) Authority To Award.—(1) Subject to the requirements of this section, section 3406 of this title, and other applicable law, the head of an agency may enter into a task order contract (as defined in section 3401 of this title) for procurement of advisory and assistance services.

(2) The head of an agency may enter into a task order contract for procurement of advisory and assistance services only under the authority of this section.

(c) Limitation on Contract Period.—The period of a task order contract entered into under this section, including all periods of extensions of the contract under options, modifications, or otherwise, may not exceed five years unless a longer period is specifically authorized in a law that is applicable to such contract.

(d) Content of Notice.—The notice required by section 1708 of title 41 and section 8(e) of the Small Business Act (15 U.S.C. 637(e)) shall reasonably and fairly describe the general scope, magnitude, and duration of the proposed task order contract in a manner that would reasonably enable a potential offeror to decide whether to request the solicitation and consider submitting an offer.

(e) Required Content of Solicitation and Contract.—

(1) Solicitation.—The solicitation for the proposed task order contract shall include the information (regarding services) described in section 3403(b) of this title.

(2) Contract.—A task order contract entered into under this section shall contain the same information that is required by paragraph (1) to be included in the solicitation of offers for that contract.

(f) Multiple Awards.—

(1) Authority to make multiple awards.—The head of an agency may, on the basis of one solicitation, award separate task order contracts under this section for the same or similar services to two or more sources if the solicitation states that the head of the agency has the option to do so.

(2) Content of solicitation.—If, in the case of a task order contract for advisory and assistance services to be entered into under this section, the contract period is to exceed three years and the contract amount is estimated to exceed $10,000,000 (including all options), the solicitation shall—

(A) provide for a multiple award authorized under paragraph (1); and

(B) include a statement that the head of the agency may also elect to award only one task order contract if the head of the agency determines in writing that only one of the offerers is capable of providing the services required at the level of quality required.

(3) Nonapplication.—Paragraph (2) does not apply in the case of a solicitation for which the head of the agency concerned determines in writing that, because the services required under the task order contract are unique or highly specialized, it is not practicable to award more than one contract.

(g) Contract Modifications.—

(1) Increase in scope, period, or maximum value of contract only by modification of contract.—A task order may not increase the scope, period, or maximum value of the task order contract under which the order is issued. The scope, period, or maximum value of the contract may be increased only by modification of the contract.

(2) Use of competitive procedures.—Unless use of procedures other than competitive procedures is authorized by an exception in subsection (a) of section 3204 of this title and approved in accordance with subsection (e) of such section, competitive procedures shall be used for making such a modification.

(3) Notice.—Notice regarding the modification shall be provided in accordance with section 1708 of title 41 and section 8(e) of the Small Business Act (15 U.S.C. 637(e)).

(h) Contract Extensions.—

(1) When contract may be extended.—Notwithstanding the limitation on the contract period set forth in subsection (c) or in a solicitation or contract pursuant to subsection (f), a task order contract entered into by the head of an agency under this section may be extended on a sole-source basis for a period not exceeding six months if the head of such agency determines that—

(A) the award of a follow-on contract has been delayed by circumstances that were not reasonably foreseeable at the time the initial contract was entered into; and

(B) the extension is necessary in order to ensure continuity of the receipt of services pending the award of, and commencement of performance under, the follow-on contract.

(2) Limit of one extension.—A task order contract may be extended under the authority of paragraph (1) only once and only in accordance with the limitations and requirements of this subsection.

(i) Inapplicability to Certain Contracts.—This section does not apply to a contract for the acquisition of property or services that includes acquisition of advisory and assistance services if the head of an agency entering into such contract determines that, under the contract, advisory and assistance services are necessarily incident to, and not a significant component of, the contract.

(Added Pub. L. 103–355, title I, §1004(a)(1), Oct. 13, 1994, 108 Stat. 3251, §2304b; amended Pub. L. 111–350, §5(b)(13), Jan. 4, 2011, 124 Stat. 3843; renumbered §3405 and amended Pub. L. 116–283, div. A, title XVIII, §1820(d), Jan. 1, 2021, 134 Stat. 4192; Pub. L. 117–81, div. A, title XVII, §1701(b)(8)(C), Dec. 27, 2021, 135 Stat. 2133.)

Editorial Notes

Amendments

2021—Pub. L. 116–283, §1820(d)(1), (2), renumbered section 2304b of this title as this section, moved subsec. (i) to the beginning of the section and redesignated it as (a), and redesignated former subsecs. (a) to (h) as (b) to (i), respectively.

Subsec. (b)(1). Pub. L. 116–283, §1820(d)(3), substituted "section 3406" for "section 2304c" and "section 3401" for "section 2304d".

Subsec. (e). Pub. L. 116–283, §1820(d)(4)(A), (B), as amended by Pub. L. 117–81, §1701(b)(8)(C), inserted par. headings, substituted "section 3403(b)" for "section 2304a(b)" in par. (1), and realigned margin of par. (2).

Subsec. (f). Pub. L. 116–283, §1820(d)(5), inserted par. headings and realigned margins of pars. (2) and (3).

Subsec. (g)(1). Pub. L. 116–283, §1820(d)(6)(A), inserted heading.

Subsec. (g)(2). Pub. L. 116–283, §1820(d)(6)(B), (C), inserted heading, realigned margin, and substituted "subsection (a) of section 3204" for "subsection (c) of section 2304" and "subsection (e)" for "subsection (f)".

Subsec. (g)(3). Pub. L. 116–283, §1820(d)(6)(B), (D), inserted heading and realigned margin.

Subsec. (h)(1). Pub. L. 116–283, §1820(d)(7)(A), (B), inserted heading, and substituted "subsection (c)" for "subsection (b)" and "subsection (f)" for "subsection (e)".

Subsec. (h)(2). Pub. L. 116–283, §1820(d)(7)(C), inserted heading and realigned margin.

2011—Subsecs. (c), (f)(3). Pub. L. 111–350 substituted "section 1708 of title 41" for "section 18 of the Office of Federal Procurement Policy Act (41 U.S.C. 416)".

Statutory Notes and Related Subsidiaries

Effective Date of 2021 Amendment

Amendment by Pub. L. 117–81 applicable as if included in the enactment of title XVIII of Pub. L. 116–283 as enacted, see section 1701(a)(2) of Pub. L. 117–81, set out in a note preceding section 3001 of this title and note below.

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 a note preceding section 3001 of this title.

Effective Date

For effective date and applicability of section, see section 10001 of Pub. L. 103–355, set out as an Effective Date of 1994 Amendment note under section 8752 of this title.

Provisions Not Affected by Pub. L. 103–355

This section not to be construed as modifying or superseding, or as intended to impair or restrict, authorities or responsibilities under former 40 U.S.C. 759 or chapter 11 of Title 40, Public Buildings, Property, and Works, see section 1004(d) of Pub. L. 103–355, set out as a note preceding section 3401 of this title.

§3406. Task and delivery order contracts: orders

(a) Applicability.—This section applies to task and delivery order contracts entered into under sections 3403 and 3405 of this title.

(b) Issuance of Orders.—The following actions are not required for issuance of a task or delivery order under a task or delivery order contract:

(1) A separate notice for such order under section 1708 of title 41 or section 8(e) of the Small Business Act (15 U.S.C. 637(e)).

(2) Except as provided in subsection (c), a competition (or a waiver of competition approved in accordance with section 3204(e) of this title) that is separate from that used for entering into the contract.

(c) Multiple Award Contracts.—When multiple task or delivery order contracts are awarded under section 3403(d)(1)(B) or 3405(f) of this title, all contractors awarded such contracts shall be provided a fair opportunity to be considered, pursuant to procedures set forth in the contracts, for each task or delivery order in excess of $2,500 that is to be issued under any of the contracts unless—

(1) the agency's need for the services or property ordered is of such unusual urgency that providing such opportunity to all such contractors would result in unacceptable delays in fulfilling that need;

(2) only one such contractor is capable of providing the services or property required at the level of quality required because the services or property ordered are unique or highly specialized;

(3) the task or delivery order should be issued on a sole-source basis in the interest of economy and efficiency because it is a logical follow-on to a task or delivery order already issued on a competitive basis;

(4) it is necessary to place the order with a particular contractor in order to satisfy a minimum guarantee; or

(5) the task or delivery order satisfies one of the exceptions in section 3204(a) of this title to the requirement to use competitive procedures.

(d) Enhanced Competition for Orders in Excess of $5,000,000.—In the case of a task or delivery order in excess of $5,000,000, the requirement to provide all contractors a fair opportunity to be considered under subsection (c) is not met unless all such contractors are provided, at a minimum—

(1) a notice of the task or delivery order that includes a clear statement of the agency's requirements;

(2) a reasonable period of time to provide a proposal in response to the notice;

(3) disclosure of the significant factors and subfactors, including cost or price, that the agency expects to consider in evaluating such proposals, and their relative importance;

(4) in the case of an award that is to be made on a best value basis, a written statement documenting the basis for the award and the relative importance of quality and price or cost factors; and

(5) an opportunity for a post-award debriefing consistent with the requirements of section 3304 of this title.

(e) Statement of Work.—A task or delivery order shall include a statement of work that clearly specifies all tasks to be performed or property to be delivered under the order.

(f) Protests.—(1) A protest is not authorized in connection with the issuance or proposed issuance of a task or delivery order except for—

(A) a protest on the ground that the order increases the scope, period, or maximum value of the contract under which the order is issued; or

(B) a protest of an order valued in excess of $35,000,000.

(2) Notwithstanding section 3556 of title 31, the Comptroller General of the United States shall have exclusive jurisdiction of a protest authorized under paragraph (1)(B).

(g) Task and Delivery Order Ombudsman.—

(1) Appointment or designation and responsibilities.—Each head of an agency who awards multiple task or delivery order contracts pursuant to section 3403(d)(1)(B) or 3405(f) of this title shall appoint or designate a task and delivery order ombudsman who shall be responsible for reviewing complaints from the contractors on such contracts and ensuring that all of the contractors are afforded a fair opportunity to be considered for task or delivery orders when required under subsection (c).

(2) Who is eligible.—The task and delivery order ombudsman shall be a senior agency official who is independent of the contracting officer for the contracts and may be the agency's competition advocate.

(h) Architectural and Engineering Services.—

(1) Qualification-based selections required.—Task or delivery orders for architectural and engineering services issued under section 3403 or 3405 of this title shall be qualification-based selections executed in accordance with chapter 11 of title 40.

(2) Multiple award contracts.—When issuing a task or delivery order for architectural and engineering services under a multiple award contract, the head of an agency may not routinely request additional information relating to qualifications from the contractor for such multiple award contract.

(Added Pub. L. 103–355, title I, §1004(a)(1), Oct. 13, 1994, 108 Stat. 3252, §2304c; amended Pub. L. 110–181, div. A, title VIII, §843(a)(2), Jan. 28, 2008, 122 Stat. 237; Pub. L. 111–350, §5(b)(14), Jan. 4, 2011, 124 Stat. 3843; Pub. L. 111–383, div. A, title VIII, §825, title X, §1075(f)(5)(A), Jan. 7, 2011, 124 Stat. 4270, 4376; Pub. L. 112–239, div. A, title VIII, §830, Jan. 2, 2013, 126 Stat. 1842; Pub. L. 114–328, div. A, title VIII, §§825(b), 835(a), Dec. 23, 2016, 130 Stat. 2280, 2285; renumbered §3406 and amended Pub. L. 116–283, div. A, title XVIII, §1820(e), Jan. 1, 2021, 134 Stat. 4194; Pub. L. 117–263, div. A, title VIII, §802, Dec. 23, 2022, 136 Stat. 2693; Pub. L. 118–159, div. A, title VIII, §885(f), Dec. 23, 2024, 138 Stat. 2022.)

Editorial Notes

Prior Provisions

Prior sections 3441 and 3442 were repealed by Pub. L. 96–513, title II, §207, title VII, §701, Dec. 12, 1980, 94 Stat. 2884, 2955, effective Sept. 15, 1981.

Section 3441, act Aug. 10, 1956, ch. 1041, 70A Stat. 195, provided that temporary appointments be made only in the Army without specification of component.

Section 3442, act Aug. 10, 1056, ch. 1041, 70A Stat. 195, provided that a regular commissioned officer, or a reserve commissioned officer who is serving on active duty, may be appointed, based upon ability and efficiency with regard being given to seniority and age, in a temporary grade that is equal to or higher than his regular or reserve grade, without vacating any other grade held by him. See section 601 of this title.

A prior section 3443, act Aug. 10, 1956, ch. 1041, 70A Stat. 196, related to grade of appointment of reserve commissioned officers on active duty, prior to repeal by Pub. L. 85–861, §36B(6), Sept. 2, 1958, 72 Stat. 1570.

Prior sections 3444 and 3445 were repealed by Pub. L. 96–513, title II, §207, title VII, §701, Dec. 12, 1980, 94 Stat. 2884, 2955, effective Sept. 15, 1981.

Section 3444, acts Aug. 10, 1956, ch. 1041, 70A Stat. 196; Sept. 2, 1958, Pub. L. 85–861, §1(81)(A), 72 Stat. 1480, authorized the President, in time of war or national emergency, to appoint any qualified person, including a person who is not a Regular or Reserve, in any temporary grade, provided for vacation of the appointment, and permitted, for purposes of determining grade, position on a promotion list, seniority in temporary grade, and eligibility for promotion, an officer of the Medical Corps or Dental Corps who is appointed in a temporary grade to be credited, when he enters active duty, with constructive service authorized by section 3294(b) of this title. See section 603 of this title.

Section 3445, acts Aug. 10, 1956, ch. 1041, 70A Stat. 196; Sept. 2, 1958, Pub. L. 85–861, §1(81)(B), 72 Stat. 1480, provided that in addition to the temporary appointments authorized, in time of war or national emergency, a regular officer or a reserve warrant officer may be appointed in any temporary grade higher than his regular or reserve grade, without vacating that grade, or a person who holds no commissioned grade in the Regular Army be appointed in any temporary commissioned grade. See section 603 of this title.

A prior section 3446 was renumbered section 7176 of this title.

Prior sections 3447 to 3449 were repealed by Pub. L. 96–513, title II, §§207, 208, title VII, §701, Dec. 12, 1980, 94 Stat. 2884, 2955, effective Sept. 15, 1981.

Section 3447, acts Aug. 10, 1956, ch. 1041, 70A Stat. 196; Sept. 2, 1958, Pub. L. 85–861, §1(81)(D), 72 Stat. 1480; Sept. 28, 1971, Pub. L. 92–129, title VI, §602, 85 Stat. 361, provided that temporary appointment of a person be made without reference to any other appointment that he may hold in the Army, temporary appointments of commissioned officers in the Regular Army be made by the President alone in grades below lieutenant colonel and by the President, by and with the consent of the Senate, in grades of lieutenant colonel and above, temporary appointments of commissioned officers in the reserve components of the Army be made by the President alone in grades below lieutenant colonel and by the President, by and with the consent of the Senate, in grades above major, and that the President may vacate at any time a temporary appointment in a commissioned grade. See section 601 of this title.

Section 3448, acts Aug. 10, 1956, ch. 1041, 70A Stat. 197; Aug. 8, 1958, Pub. L. 85–603, §1(2), 72 Stat. 526, authorized the Secretary of the Army, upon his determination of need, to appoint qualified persons as warrant officers, with such appointments to continue at the pleasure of the Secretary, and such warrant officers entitled to count all periods of active duty under the appointment as warrant or enlisted service for all purposes and to the benefits of all laws and regulations applicable to the retirement, pensions, and disability of members of the Army on active duty. See section 602 of this title.

Section 3449, act Aug. 10, 1956, ch. 1041, 70A Stat. 197, provided that temporary promotions in warrant officer grades be governed by such regulations as the Secretary of the Army prescribe. See section 602 of this title.

A prior section 3450, act Aug. 10, 1956, ch. 1041, 70A Stat. 197, provided for suspension of laws for promotion or mandatory retirement or separation during war or emergency of temporary warrant officers of the Army, prior to repeal by Pub. L. 90–235, §3(b)(1), Jan. 2, 1968, 81 Stat. 758.

Amendments

2024—Subsec. (f)(1)(B). Pub. L. 118–159 substituted "$35,000,000" for "$25,000,000".

2022—Subsec. (h). Pub. L. 117–263 added subsec. (h).

2021—Pub. L. 116–283, §1820(e)(1), (2), renumbered section 2304c of this title as this section, redesignated subsecs. (g), (a), (b), (c), (e), and (f) as (a), (b), (c), (e), (f), and (g), respectively, and reordered subsecs. accordingly.

Subsec. (a). Pub. L. 116–283, §1820(e)(3), substituted "sections 3403 and 3405" for "sections 2304a and 2304b".

Subsec. (b)(2). Pub. L. 116–283, §1820(e)(4), substituted "subsection (c)" for "subsection (b)" and "section 3204(e)" for "section 2304(f)".

Subsec. (c). Pub. L. 116–283, §1820(e)(5)(A), which directed substitution of "section 3403(d)(1)(B) or 3405(f)" for "section 2304a(d)(1) or 2304b(c)", was executed by making the substitution for "section 2304a(d)(1)(B) or 2304b(e)" in introductory provisions, to reflect the probable intent of Congress.

Subsec. (c)(5). Pub. L. 116–283, §1820(e)(5)(B), substituted "section 3204(a)" for "section 2304(c)".

Subsec. (d). Pub. L. 116–283, §1820(e)(6)(A), substituted "subsection (c)" for "subsection (b)" in introductory provisions.

Subsec. (d)(5). Pub. L. 116–283, §1820(e)(6)(B), substituted "section 3304" for "section 2305(b)(5)".

Subsec. (g). Pub. L. 116–283, §1820(e)(7), designated first and second sentences as pars. (1) and (2), respectively, and inserted headings and, in par. (1), substituted "section 3403(d)(1)(B) or 3405(f)" for "section 2304a(d)(1)(B) or 2304b(e)" and "subsection (c)" for "subsection (b)".

2016—Subsec. (b)(5). Pub. L. 114–328, §825(b), added par. (5).

Subsec. (e)(1)(B). Pub. L. 114–328, §835(a), substituted "$25,000,000" for "$10,000,000".

2013—Subsec. (e)(3). Pub. L. 112–239 struck out par. (3) which read as follows: "Paragraph (1)(B) and paragraph (2) of this subsection shall not be in effect after September 30, 2016."

2011—Subsec. (a)(1). Pub. L. 111–350 substituted "section 1708 of title 41" for "section 18 of the Office of Federal Procurement Policy Act (41 U.S.C. 416)".

Subsec. (e). Pub. L. 111–383, §1075(f)(5)(A), made technical correction to directory language of Pub. L. 110–181, §843(a)(2)(C). See 2008 Amendment note below.

Subsec. (e)(3). Pub. L. 111–383, §825, amended par. (3) generally. Prior to amendment, par. (3) read as follows: "This subsection shall be in effect for three years, beginning on the date that is 120 days after the date of the enactment of the National Defense Authorization Act for Fiscal Year 2008."

2008—Subsec. (d). Pub. L. 110–181, §843(a)(2), added subsec. (d). Former subsec. (d) redesignated (e).

Subsec. (e). Pub. L. 110–181, §843(a)(2)(C), as amended by Pub. L. 111–383, §1075(f)(5)(A), added subsec. (e) and struck out former subsec. (e). Former text read as follows: "A protest is not authorized in connection with the issuance or proposed issuance of a task or delivery order except for a protest on the ground that the order increases the scope, period, or maximum value of the contract under which the order is issued."

Pub. L. 110–181, §843(a)(2)(A), redesignated subsec. (d) as (e). Former subsec. (e) redesignated (f).

Subsecs. (f), (g). Pub. L. 110–181, §843(a)(2)(A), redesignated subsecs. (e) and (f) as (f) and (g), respectively.

Statutory Notes and Related Subsidiaries

Effective Date of 2021 Amendment

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 a note preceding section 3001 of this title.

Effective Date of 2008 Amendment

Pub. L. 110–181, div. A, title VIII, §843(a)(3)(B), Jan. 28, 2008, 122 Stat. 238, provided that: "The amendments made by paragraph (2) [amending this section] shall take effect on the date that is 120 days after the date of the enactment of this Act [Jan. 28, 2008], and shall apply with respect to any task or delivery order awarded on or after such date."

Effective Date

For effective date and applicability of section, see section 10001 of Pub. L. 103–355, set out as an Effective Date of 1994 Amendment note under section 8752 of this title.

Provisions Not Affected by Pub. L. 103–355

This section not to be construed as modifying or superseding, or as intended to impair or restrict, authorities or responsibilities under former 40 U.S.C. 759 or chapter 11 of Title 40, Public Buildings, Property, and Works, see section 1004(d) of Pub. L. 103–355, set out as a note preceding section 3401 of this title.

CHAPTER 247—PROCUREMENT OF COMMERCIAL PRODUCTS AND COMMERCIAL SERVICES

        

Editorial Notes

Prior Provisions

A prior chapter 247 "ACQUISITION OF COMMERCIAL ITEMS", as added by Pub. L. 115–232, div. A, title VIII, §801(a), Aug. 13, 2018, 132 Stat. 1827, and consisting of reserved section 3451, was repealed by Pub. L. 116–283, div. A, title XVIII, §1821(a)(1), Jan. 1, 2021, 134 Stat. 4194.

Amendments

2021—Pub. L. 117–81, div. A, title VIII, §803(b)(2), Dec. 27, 2021, 135 Stat. 1816, added item 3458.

Pub. L. 116–283, div. A, title XVIII, §1821(a)(1), (3), (b)(1)(B), (7)(C), Jan. 1, 2021, 134 Stat. 4194–4196, transferred chapter 140 of this title to this chapter, renumbered items 2375, 2376, 2377, 2379, 2380, and 2380a as 3452, 3451, 3453, 3455, 3456, and 3457, respectively, moved item 3451 so as to precede item 3452, and struck out item 2380b "Treatment of commingled items purchased by contractors as commercial products".

Statutory Notes and Related Subsidiaries

Use of Capability-Based Analysis of Price of Goods or Services Offered by Nontraditional Defense Contractors

Pub. L. 118–159, div. A, title VIII, §864, Dec. 23, 2024, 138 Stat. 2002, provided that:

"(a) Pilot Program.—A contracting officer of the Department of Defense may use alternative capability-based analysis to determine whether the proposed price or fee for a commercial product or commercial service offered by a nontraditional defense contractor (as that term is defined in section 3014 of title 10, United States Code) is fair and reasonable.

"(b) Report.—Not later than February 1, 2028, the Under Secretary of Defense for Acquisition and Sustainment shall submit to the Committees on Armed Services of the Senate and the House of Representatives a report evaluating the use of the authority under subsection (a), including the following elements:

"(1) A summary of activities conducted because of the inclusion of alternative capability-based analysis into the evaluation of proposals offered by nontraditional contractors, including specific examples.

"(2) An analysis of the effectiveness of the authority under subsection (a) in increasing nontraditional defense contractor participation in the defense industrial base and in increasing access by the Department of Defense to new technologies or capabilities.

"(3) Recommendations on—

"(A) the continuation of the authority under subsection (a);

"(B) changes to existing law; and

"(C) the expansion of the program to include other contractors.

"(c) Sunset.—The authority under subsection (a) shall expire on September 30, 2029.

"(d) Alternative Capacity-based Analysis Defined.—In this section, the term 'alternative capability-based analysis' means an analysis of the value to the Federal Government of a commercial product or commercial service that considers one or more of the following elements:

"(1) The fitness of the product or service for the particular purpose such commercial product or commercial service is being procured.

"(2) The unique nature of, technical expertise required to produce or provide, and the non-Federal resources expended to develop such commercial product or commercial service.

"(3) The business model or financial projections of the nontraditional defense contractor, commensurate with the scale of the potential investment by the Secretary of Defense, which may include cost information, self-funded risk, financial projections, expenditure rates, estimates of total sales market, and other financial, technical, or management data.

"(4) The estimated total cost avoidance or increased capacity afforded by such commercial product or commercial service in relation to current and future costs of programs and operations that provide the same or similar capabilities.

"(5) Input from the anticipated users of such commercial product or commercial service on the potential value added by the improved capabilities or production processes resulting from such commercial product or commercial service."

Procurement of Commercial Services

Pub. L. 110–181, div. A, title VIII, §805, Jan. 28, 2008, 122 Stat. 212, as amended by Pub. L. 110–417, [div. A], title X, §1061(b)(4), Oct. 14, 2008, 122 Stat. 4613; Pub. L. 113–291, div. A, title X, §1071(b)(2)(A), Dec. 19, 2014, 128 Stat. 3506; Pub. L. 115–232, div. A, title VIII, §836(f)(6), Aug. 13, 2018, 132 Stat. 1871, provided that:

"(a) Regulations Required.—Not later than 180 days after the date of the enactment of this Act [Jan. 28, 2008], the Secretary of Defense shall modify the regulations of the Department of Defense for the procurement of commercial services for or on behalf of the Department of Defense.

"(b) Applicability of Commercial Procedures.—

"(1) Services of a type sold in marketplace.—The regulations modified pursuant to subsection (a) 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 section 2306a of title 10, United States Code [see 10 U.S.C. 3701 et seq.] (relating to truth in negotiations), 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 such services.

"(2) Information submitted.—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.

"(c) Time-and-Materials Contracts.—

"(1) Commercial services acquisitions.—The regulations modified pursuant to subsection (a) shall ensure that procedures applicable to time-and-materials contracts and labor-hour contracts for commercial service acquisitions may be used only for the following:

"(A) Services procured for support of a service, as described in section 103a(1) of title 41, United States Code.

"(B) Emergency repair services.

"(C) Any other commercial services only to the extent that the head of the agency concerned approves a determination in writing by the contracting officer that—

"(i) the services to be acquired are commercial services as defined in section 103a(2) of title 41, United States Code;

"(ii) if the services to be acquired are subject to subsection (b), the offeror of the services has submitted sufficient information in accordance with that subsection;

"(iii) such services are commonly sold to the general public through use of time-and-materials or labor-hour contracts; and

"(iv) the use of a time-and-materials or labor-hour contract type is in the best interest of the Government.

"(2) Non-commercial services acquisitions.—Nothing in this subsection shall be construed to preclude the use of procedures applicable to time-and-materials contracts and labor-hour contracts for non-commercial service acquisitions for the acquisition of any category of services."

Plan for Restricting Government-Unique Contract Clauses on Commercial Contracts

Pub. L. 110–181, div. A, title VIII, §821, Jan. 28, 2008, 122 Stat. 226, as amended by Pub. L. 113–291, div. A, title X, §1071(b)(2)(B), Dec. 19, 2014, 128 Stat. 3506; Pub. L. 115–232, div. A, title VIII, §836(f)(3), Aug. 13, 2018, 132 Stat. 1871; Pub. L. 116–92, div. A, title IX, §902(41), Dec. 20, 2019, 133 Stat. 1547, provided that:

"(a) Plan.—The Under Secretary of Defense for Acquisition and Sustainment shall develop and implement a plan to minimize the number of government-unique contract clauses used in commercial contracts by restricting the clauses to the following:

"(1) Government-unique clauses authorized by law or regulation.

"(2) Any additional clauses that are relevant and necessary to a specific contract.

"(b) Commercial Contract.—In this section:

"(1) The term 'commercial contract' means a contract awarded by the Federal Government for the procurement of a commercial product or a commercial service.

"(2) The term 'commercial product' has the meaning provided by section 103 of title 41, United States Code.

"(3) The term 'commercial service' has the meaning provided by section 103a of title 41, United States Code."

§3451. Definitions

In this chapter:

(1) The terms "commercial product", "commercial service", "nondevelopmental item", "component", and "commercial component" have the meanings provided in sections 103, 103a, 110, 105, and 102, respectively, of title 41.

(2) The term "head of an agency" means the Secretary of Defense, the Secretary of Homeland Security, and the Administrator of the National Aeronautics and Space Administration.

(3) The term "agency" means the Department of Defense, the Coast Guard, and the National Aeronautics and Space Administration.

(Added Pub. L. 103–355, title VIII, §8103, Oct. 13, 1994, 108 Stat. 3390, §2376; amended Pub. L. 107–107, div. A, title X, §1048(a)(19), Dec. 28, 2001, 115 Stat. 1223; Pub. L. 107–296, title XVII, §1704(b)(1), Nov. 25, 2002, 116 Stat. 2314; Pub. L. 111–350, §5(b)(22), Jan. 4, 2011, 124 Stat. 3844; Pub. L. 115–232, div. A, title VIII, §836(d)(2), Aug. 13, 2018, 132 Stat. 1866; renumbered §3451 and amended Pub. L. 116–283, div. A, title XVIII, §1821(a)(2), (b)(1)(A), Jan. 1, 2021, 134 Stat. 4195.)

Editorial Notes

Prior Provisions

A prior section 3451, act Aug. 10, 1956, ch. 1041, 70A Stat. 197, provided that an officer who is promoted to a temporary grade is considered to have accepted his promotion on the date of the order announcing it, unless he expressly declines the promotion, prior to repeal by Pub. L. 96–513, title II, §207, title VII, §701, Dec. 12, 1980, 94 Stat. 2884, 2955, effective Sept. 15, 1981.

Amendments

2021—Pub. L. 116–283, §1821(b)(1)(A), transferred this section so as to precede section 3452 and appear at the beginning of this chapter.

Pub. L. 116–283, §1821(a)(2), renumbered section 2376 of this title as this section.

2018—Par. (1). Pub. L. 115–232 substituted "terms 'commercial product', 'commercial service'," for "terms 'commercial item'," and "sections 103, 103a, 110, 105, and 102, respectively, of title 41" for "chapter 1 of title 41".

2011—Par. (1). Pub. L. 111–350 substituted "chapter 1 of title 41" for "section 4 of the Office of Federal Procurement Policy Act (41 U.S.C. 403)".

2002—Par. (2). Pub. L. 107–296 substituted "of Homeland Security" for "of Transportation".

2001—Par. (1). Pub. L. 107–107 inserted "(41 U.S.C. 403)" after "section 4 of the Office of Federal Procurement Policy Act".

Statutory Notes and Related Subsidiaries

Effective Date of 2021 Amendment

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 a note preceding section 3001 of this title.

Effective Date of 2018 Amendment

Amendment 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.

Effective Date of 2002 Amendment

Amendment by Pub. L. 107–296 effective on the date of transfer of the Coast Guard to the Department of Homeland Security, see section 1704(g) of Pub. L. 107–296, set out as a note under section 101 of this title.

§3452. Relationship of other provisions of law to procurement of commercial products and commercial services

(a) Applicability of Government-wide Statutes.—(1) No contract for the procurement of a commercial product or commercial service entered into by the head of an agency shall be subject to any law properly listed in the Federal Acquisition Regulation pursuant to section 1906(b) of title 41.

(2) No subcontract under a contract for the procurement of a commercial product or commercial service entered into by the head of an agency shall be subject to any law properly listed in the Federal Acquisition Regulation pursuant to section 1906(c) of title 41.

(3) No contract for the procurement of a commercially available off-the-shelf item entered into by the head of an agency shall be subject to any law properly listed in the Federal Acquisition Regulation pursuant to section 1907 of title 41.

(b) Applicability of Defense-unique Statutes to Contracts for Commercial Products and Commercial Services.—(1) The Defense Federal Acquisition Regulation Supplement shall include a list of defense-unique provisions of law and of contract clause requirements based on government-wide acquisition regulations, policies, or executive orders not expressly authorized in law that are inapplicable to contracts for the procurement of commercial products and commercial services. A provision of law or contract clause requirement properly included on the list pursuant to paragraph (2) does not apply to purchases of commercial products and commercial services by the Department of Defense. This section does not render a provision of law or contract clause requirement not included on the list inapplicable to contracts for the procurement of commercial products and commercial services.

(2) A provision of law or contract clause requirement described in subsection (e) that is enacted after October 13, 1994, shall be included on the list of inapplicable provisions of law and contract clause requirements required by paragraph (1) unless the Under Secretary of Defense for Acquisition and Sustainment makes a written determination that it would not be in the best interest of the Department of Defense to exempt contracts for the procurement of commercial products and commercial services from the applicability of the provision or contract clause requirement.

(c) Applicability of Defense-unique Statutes to Subcontracts for Commercial Products and Commercial Services.—(1) The Defense Federal Acquisition Regulation Supplement shall include a list of provisions of law and of contract clause requirements based on government-wide acquisition regulations, policies, or executive orders not expressly authorized in law that are inapplicable to subcontracts under a Department of Defense contract or subcontract for the procurement of commercial products and commercial services. A provision of law or contract clause requirement properly included on the list pursuant to paragraph (2) does not apply to those subcontracts. This section does not render a provision of law or contract clause requirement not included on the list inapplicable to subcontracts under a contract for the procurement of commercial products and commercial services.

(2) A provision of law or contract clause requirement described in subsection (e) shall be included on the list of inapplicable provisions of law and contract clause requirements required by paragraph (1) unless the Under Secretary of Defense for Acquisition and Sustainment makes a written determination that it would not be in the best interest of the Department of Defense to exempt subcontracts under a contract for the procurement of commercial products and commercial services from the applicability of the provision or contract clause requirement.

(3) In this subsection, the term "subcontract" includes a transfer of commercial products and commercial services between divisions, subsidiaries, or affiliates of a contractor or subcontractor. The term does not include agreements entered into by a contractor for the supply of commodities that are intended for use in the performance of multiple contracts with the Department of Defense and other parties and are not identifiable to any particular contract.

(4) This subsection does not authorize the waiver of the applicability of any provision of law or contract clause requirement with respect to any first-tier subcontract under a contract with a prime contractor reselling or distributing commercial products and commercial services of another contractor without adding value.

(d) Applicability of Defense-unique Statutes to Contracts for Commercially Available, Off-the-shelf Items.—(1) The Defense Federal Acquisition Regulation Supplement shall include a list of provisions of law and of contract clause requirements based on government-wide acquisition regulations, policies, or executive orders not expressly authorized in law that are inapplicable to contracts for the procurement of commercially available off-the-shelf items. A provision of law or contract clause requirement properly included on the list pursuant to paragraph (2) does not apply to Department of Defense contracts for the procurement of commercially available off-the-shelf items. This section does not render a provision of law or contract clause requirement not included on the list inapplicable to contracts for the procurement of commercially available off-the-shelf items.

(2) A provision of law or contract clause requirement described in subsection (e) shall be included on the list of inapplicable provisions of law and contract clause requirements required by paragraph (1) unless the Under Secretary of Defense for Acquisition and Sustainment makes a written determination that it would not be in the best interest of the Department of Defense to exempt contracts for the procurement of commercially available off-the-shelf items from the applicability of the provision or contract clause requirement.

(e) Covered Provision of Law or Contract Clause Requirement.—A provision of law or contract clause requirement referred to in subsections (b)(2), (c)(2), and (d)(2) is a provision of law or contract clause requirement that the Under Secretary of Defense for Acquisition and Sustainment determines sets forth policies, procedures, requirements, or restrictions for the procurement of property or services by the Federal Government, except for a provision of law or contract clause requirement that—

(1) provides for criminal or civil penalties;

(2) requires that certain articles be bought from American sources pursuant to section 4862 of this title, or requires that strategic materials critical to national security be bought from American sources pursuant to section 4863 of this title; or

(3) specifically refers to this section and provides that, notwithstanding this section, it shall be applicable to contracts for the procurement of commercial products and commercial services.

(Added Pub. L. 103–355, title VIII, §8102, Oct. 13, 1994, 108 Stat. 3390, §2375; amended Pub. L. 105–85, div. A, title X, §1073(a)(51), Nov. 18, 1997, 111 Stat. 1903; Pub. L. 107–107, div. A, title X, §1048(a)(18), Dec. 28, 2001, 115 Stat. 1223; Pub. L. 111–350, §5(b)(21), Jan. 4, 2011, 124 Stat. 3844; Pub. L. 114–328, div. A, title VIII, §874(a), Dec. 23, 2016, 130 Stat. 2308; Pub. L. 115–232, div. A, title VIII, §§836(d)(1), (8)(B), 837(a), Aug. 13, 2018, 132 Stat. 1866, 1868, 1875; Pub. L. 116–92, div. A, title IX, §902(57), Dec. 20, 2019, 133 Stat. 1549; renumbered §3452 and amended Pub. L. 116–283, div. A, title XVIII, §§1821(a)(2), (b)(2), 1870(c)(6)(A), Jan. 1, 2021, 134 Stat. 4195, 4285.)

Editorial Notes

Prior Provisions

A prior section 3452, added Pub. L. 85–861, §1(81)(E), Sept. 2, 1958, 72 Stat. 1480, provided that, notwithstanding any other provision of law, an officer of Medical Corps or Dental Corps may be promoted to temporary grade of captain at any time after first anniversary of date upon which he graduated from a medical, osteopathic, or dental school, prior to repeal by Pub. L. 96–513, title II, §207, title VII, §701, Dec. 12, 1980, 94 Stat. 2884, 2955, effective Sept. 15, 1981.

Amendments

2021—Pub. L. 116–283, §1821(a)(2), renumbered section 2375 of this title as this section.

Subsec. (e)(2). Pub. L. 116–283, §§1821(b)(2), 1870(c)(6)(A), made identical amendments, substituting "section 4862" for "section 2533a" and "section 4863" for "section 2533b". Section 1870(c)(6)(A) amended former section 2375 while section 1821(b)(2) amended this section. See Amendment note above.

2019—Subsecs. (b)(2), (c)(2), (d)(2), (e). Pub. L. 116–92 substituted "Under Secretary of Defense for Acquisition and Sustainment" for "Under Secretary of Defense for Acquisition, Technology, and Logistics".

2018—Pub. L. 115–232, §836(d)(8)(B), substituted "Relationship of other provisions of law to procurement of commercial products and commercial services" for "Relationship of commercial item provisions to other provisions of law" in section catchline.

Subsec. (a)(1), (2). Pub. L. 115–232, §836(d)(1)(A), substituted "commercial product or commercial service" for "commercial item".

Subsec. (b). Pub. L. 115–232, §836(d)(1)(B), in heading, substituted "Commercial Products and Commercial Services" for "Commercial Items" and, in text, substituted "commercial products and commercial services" for "commercial items" wherever appearing.

Subsec. (b)(2). Pub. L. 115–232, §837(a), substituted "October 13, 1994" for "January 1, 2015".

Subsec. (c). Pub. L. 115–232, §836(d)(1)(B), in heading, substituted "Commercial Products and Commercial Services" for "Commercial Items" and, in text, substituted "commercial products and commercial services" for "commercial items" wherever appearing.

Subsec. (e)(3). Pub. L. 115–232, §836(d)(1)(C), substituted "commercial products and commercial services" for "commercial items".

2016—Pub. L. 114–328 amended section generally. Prior to amendment, text read as follows:

"(a) Applicability of Title.—Unless otherwise specifically provided, nothing in this chapter shall be construed as providing that any other provision of this title relating to procurement is inapplicable to the procurement of commercial items.

"(b) List of Laws Inapplicable to Contracts for the Acquisition of Commercial Items.—No contract for the procurement of a commercial item entered into by the head of an agency shall be subject to any law properly listed in the Federal Acquisition Regulation (pursuant to section 1906 of title 41).

"(c) Cross Reference to Exception to Cost or Pricing Data Requirements for Commercial Items.—For a provision relating to an exception for requirements for cost or pricing data for contracts for the procurement of commercial items, see section 2306a(b) of this title."

2011—Subsec. (b). Pub. L. 111–350 substituted "section 1906 of title 41" for "section 34 of the Office of Federal Procurement Policy Act (41 U.S.C. 430)".

2001—Subsec. (b). Pub. L. 107–107 inserted "(41 U.S.C. 430)" after "section 34 of the Office of Federal Procurement Policy Act".

1997—Subsec. (c). Pub. L. 105–85 substituted "a provision relating to an exception" for "provisions relating to exceptions" and "section 2306a(b)" for "section 2306a(d)".

Statutory Notes and Related Subsidiaries

Effective Date of 2021 Amendment

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 a note preceding section 3001 of this title.

Effective Date of 2018 Amendment

Amendment by section 836(d)(1), (8)(B) of 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.

Effective Date

For effective date and applicability of chapter, see section 10001 of Pub. L. 103–355 set out as an Effective Date of 1994 Amendment note under section 8752 of this title.

Changes to Defense Federal Acquisition Regulation Supplement

Pub. L. 114–328, div. A, title VIII, §874(b), Dec. 23, 2016, 130 Stat. 2310, as amended by Pub. L. 116–92, div. A, title IX, §902(58), Dec. 20, 2019, 133 Stat. 1549, provided that:

"(1) In general.—To the maximum extent practicable, the Under Secretary of Defense for Acquisition and Sustainment shall ensure that—

"(A) the Defense Federal Acquisition Regulation Supplement does not require the inclusion of contract clauses in contracts for the procurement of commercial items or contracts for the procurement of commercially available off-the-shelf items, unless such clauses are—

"(i) required to implement provisions of law or executive orders applicable to such contracts; or

"(ii) determined to be consistent with standard commercial practice; and

"(B) the flow-down of contract clauses to subcontracts under contracts for the procurement of commercial items or commercially available off-the-shelf items is prohibited unless such flow-down is required to implement provisions of law or executive orders applicable to such subcontracts.

"(2) Subcontracts.—In this subsection, the term 'subcontract' includes a transfer of commercial items between divisions, subsidiaries, or affiliates of a contractor or subcontractor. The term does not include agreements entered into by a contractor for the supply of commodities that are intended for use in the performance of multiple contracts with the Department of Defense and other parties and are not identifiable to any particular contract."

Provisions Not Affected by Title VIII of Pub. L. 103–355

Pub. L. 103–355, title VIII, §8304, Oct. 13, 1994, 108 Stat. 3398, as amended by Pub. L. 115–232, div. A, title VIII, §812(a)(2)(C)(iii), Aug. 13, 2018, 132 Stat. 1847, provided that: "Nothing in this title [see Tables for classification] shall be construed as modifying or superseding, or as intended to impair or restrict, authorities or responsibilities under—

"(1) section 7102 of the Federal Acquisition Streamlining Act of 1994 [Pub. L. 103–355, 15 U.S.C. 644 note];

"(2) the Brooks Automatic Data Processing Act (section 111 of the Federal Property and Administrative Services Act of 1949 ([former] 40 U.S.C. 759));

"(3) Brooks Architect-Engineers Act (title IX of the Federal Property and Administrative Services Act of 1949 ([former] 40 U.S.C. 541 et seq.) [now 40 U.S.C. 1101–1104]);

"(4) subsections (a) and (d) of section 8 of the Small Business Act (15 U.S.C. 637(a) and (d)); or

"(5) the Javits-Wagner-O'Day Act ([former] 41 U.S.C. 46–48c) [now 41 U.S.C. 8501 et seq.]."

§3453. Preference for commercial products and commercial services

(a) Preference.—The head of an agency shall ensure that, to the maximum extent practicable—

(1) requirements of the agency with respect to a procurement of supplies or services are stated in terms of—

(A) functions to be performed;

(B) performance required; or

(C) essential physical characteristics;

(2) such requirements are defined so that commercial services or commercial products or, to the extent that commercial products suitable to meet the agency's needs are not available, nondevelopmental items other than commercial products, may be procured to fulfill such requirements; and

(3) offerors of commercial services, commercial products, and nondevelopmental items other than commercial products are provided an opportunity to compete in any procurement to fill such requirements.

(b) Implementation.—The head of an agency shall ensure that procurement officials in that agency, to the maximum extent practicable—

(1) acquire commercial services, commercial products, or nondevelopmental items other than commercial products to meet the needs of the agency;

(2) require prime contractors and subcontractors at all levels under the agency contracts to incorporate commercial services, commercial products, or nondevelopmental items other than commercial products as components of items supplied to the agency;

(3) modify requirements in appropriate cases to ensure that the requirements can be met by commercial services or commercial products or, to the extent that commercial products suitable to meet the agency's needs are not available, nondevelopmental items other than commercial products;

(4) state specifications in terms that enable and encourage bidders and offerors to supply commercial services or commercial products or, to the extent that commercial products suitable to meet the agency's needs are not available, nondevelopmental items other than commercial products in response to the agency solicitations;

(5) revise the agency's procurement policies, practices, and procedures not required by law to reduce any impediments in those policies, practices, and procedures to the acquisition of commercial products and commercial services;

(6) require training of appropriate personnel in the acquisition of commercial products and commercial services; and

(7) establish criteria in performance evaluations for appropriate personnel to reward risk-informed decisions that maximize the acquisition of commercial products, commercial services, or nondevelopmental items other than commercial products.

(c) Preliminary Market Research.—(1) The head of an agency shall conduct market research appropriate to the circumstances—

(A) before developing new specifications for a procurement by that agency;

(B) before soliciting bids or proposals for a contract in excess of the simplified acquisition threshold; and

(C) before awarding a task order or delivery order in excess of the simplified acquisition threshold.

(2) The head of an agency shall use the results of market research to determine whether there are commercial services or commercial products or, to the extent that commercial products suitable to meet the agency's needs are not available, nondevelopmental items other than commercial products available that—

(A) meet the agency's requirements;

(B) could be modified to meet the agency's requirements; or

(C) could meet the agency's requirements if those requirements were modified to a reasonable extent.

(3) In conducting market research, the head of an agency should not require potential sources to submit more than the minimum information that is necessary to make the determinations required in paragraph (2).

(4) The head of an agency shall document the results of market research in a manner appropriate to the size and complexity of the acquisition.

(5) The head of an agency shall take appropriate steps to ensure that any prime contractor of a contract (or task order or delivery order) in an amount in excess of $5,000,000 for the procurement of products other than commercial products or services other than commercial services engages in such market research as may be necessary to carry out the requirements of subsection (b)(2) before making purchases for or on behalf of the Department of Defense.

(d) Market Research for Price Analysis.—The Secretary of Defense shall ensure that procurement officials in the Department of Defense conduct or obtain market research to support the determination of the reasonableness of price for commercial products or commercial services contained in any bid or offer submitted in response to an agency solicitation. To the extent necessary to support such market research, the procurement official for the solicitation—

(1) in the case of products or services acquired under section 3455 of this title, shall use information submitted under subsection (d) of that section; and

(2) in the case of other products or services, may require the offeror to submit relevant information.

(e) Market Research Training Required.—The Secretary of Defense shall provide mandatory training for members of the armed forces and employees of the Department of Defense responsible for the conduct of market research required under subsections (c) and (d). Such mandatory training shall, at a minimum—

(1) provide comprehensive information on the subject of market research and the function of market research in the acquisition of commercial products and commercial services;

(2) teach best practices for conducting and documenting market research; and

(3) provide methodologies for establishing standard processes and reports for collecting and sharing market research across the Department.

(Added Pub. L. 103–355, title VIII, §8104(a), Oct. 13, 1994, 108 Stat. 3390, §2377; amended Pub. L. 110–181, div. A, title VIII, §826(a), Jan. 28, 2008, 122 Stat. 227; Pub. L. 114–92, div. A, title VIII, §844(a), Nov. 25, 2015, 129 Stat. 915; Pub. L. 114–328, div. A, title VIII, §871, Dec. 23, 2016, 130 Stat. 2307; Pub. L. 115–232, div. A, title VIII, §836(d)(3), (8)(C), Aug. 13, 2018, 132 Stat. 1866, 1868; Pub. L. 116–92, div. A, title VIII, §818(a), Dec. 20, 2019, 133 Stat. 1488; renumbered §3453 and amended Pub. L. 116–283, div. A, title XVIII, §1821(a)(2), (b)(3), Jan. 1, 2021, 134 Stat. 4195; Pub. L. 118–159, div. A, title VIII, §834, Dec. 23, 2024, 138 Stat. 1986.)

Editorial Notes

Amendments

2024—Subsec. (b)(7). Pub. L. 118–159 added par. (7).

2021—Pub. L. 116–283, §1821(a)(2), renumbered section 2377 of this title as this section.

Subsec. (d)(1). Pub. L. 116–283, §1821(b)(3), substituted "section 3455" for "section 2379".

2019—Subsec. (c)(4). Pub. L. 116–92, §818(a)(1)(B), added par. (4). Former par. (4) redesignated (5).

Subsec. (c)(5). Pub. L. 116–92, §818(a)(2), amended directory language of Pub. L. 115–232, §836(d)(3)(C)(ii). See 2018 Amendment note below.

Pub. L. 116–92, §818(a)(1), redesignated par. (4) as (5).

2018—Pub. L. 115–232, §836(d)(8)(C), substituted "commercial products and commercial services" for "acquisition of commercial items" in section catchline.

Subsec. (a)(2). Pub. L. 115–232, §836(d)(3)(A)(i), substituted "commercial services or commercial products or, to the extent that commercial products suitable to meet the agency's needs are not available, nondevelopmental items other than commercial products" for "commercial items or, to the extent that commercial items suitable to meet the agency's needs are not available, nondevelopmental items other than commercial items".

Subsec. (a)(3). Pub. L. 115–232, §836(d)(3)(A)(ii), substituted "commercial services, commercial products, and nondevelopmental items other than commercial products" for "commercial items and nondevelopmental items other than commercial items".

Subsec. (b)(1), (2). Pub. L. 115–232, §836(d)(3)(B)(i), substituted "commercial services, commercial products, or nondevelopmental items other than commercial products" for "commercial items or nondevelopmental items other than commercial items".

Subsec. (b)(3), (4). Pub. L. 115–232, §836(d)(3)(B)(ii), substituted "commercial services or commercial products or, to the extent that commercial products suitable to meet the agency's needs are not available, nondevelopmental items other than commercial products" for "commercial items or, to the extent that commercial items suitable to meet the agency's needs are not available, nondevelopmental items other than commercial items".

Subsec. (b)(5), (6). Pub. L. 115–232, §836(d)(3)(B)(iii), substituted "commercial products and commercial services" for "commercial items".

Subsec. (c)(2). Pub. L. 115–232, §836(d)(3)(C)(i), in introductory provisions, substituted "commercial services or commercial products or, to the extent that commercial products suitable to meet the agency's needs are not available, nondevelopmental items other than commercial products" for "commercial items or, to the extent that commercial items suitable to meet the agency's needs are not available, nondevelopmental items other than commercial items".

Subsec. (c)(5). Pub. L. 115–232, §836(d)(3)(C)(ii), as amended by Pub. L. 116–92, §818(a)(2), substituted "products other than commercial products or services other than commercial services" for "items other than commercial items".

Subsec. (d). Pub. L. 115–232, §836(d)(3)(D)(i), substituted "commercial products or commercial services" for "commercial items" in introductory provisions.

Subsec. (d)(1), (2). Pub. L. 115–232, §836(d)(3)(D)(ii), (iii), substituted "products or services" for "items".

Subsec. (e)(1). Pub. L. 115–232, §836(d)(3)(E), substituted "commercial products and commercial services" for "commercial items".

2016—Subsecs. (d), (e). Pub. L. 114–328 added subsec. (d), redesignated former subsec. (d) as (e), and in introductory provisions of subsec. (e), substituted "subsections (c) and (d)" for "subsection (c)".

2015—Subsec. (d). Pub. L. 114–92 added subsec. (d).

2008—Subsec. (c)(1)(C). Pub. L. 110–181, §826(a)(1), added subpar. (C).

Subsec. (c)(4). Pub. L. 110–181, §826(a)(2), added par. (4).

Statutory Notes and Related Subsidiaries

Effective Date of 2021 Amendment

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 a note preceding section 3001 of this title.

Effective Date of 2018 Amendment

Amendment 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.

Increase in Air Force and Navy Use of Commercial Dual-Use Parts in Certain Aircraft and Engines

Pub. L. 117–263, div. A, title I, §161, Dec. 23, 2022, 136 Stat. 2461, as amended by Pub. L. 118–159, div. A, title I, §161, Dec. 23, 2024, 138 Stat. 1815, provided that:

"(a) In General.—Not later than 180 days after the date of the enactment of this Act [Dec. 23, 2022], the Secretary of the Air Force, with respect to the Air Force, and the Secretary of the Navy, with respect to the Navy, shall develop and implement processes and procedures for—

"(1) the acquisition of new, used, overhauled, reconditioned, and remanufactured commercial dual-use parts; and

"(2) the use of such commercial dual-use parts in all—

"(A) commercial derivative aircraft and engines; and

"(B) aircraft used by the Air Force or Navy that are based on the design of commercial products.

"(b) Procurement of Parts.—The processes and procedures implemented under subsection (a) shall provide that commercial dual-use parts shall be acquired—

"(1) pursuant to competitive procedures (as defined in section 3012 of title 10, United States Code); and

"(2) only from suppliers that provide parts that possess an Authorized Release Certificate Federal Aviation Administration Form 8130-3 Airworthy Approval Tag from a certified repair station pursuant to part 145 of title 14, Code of Federal Regulations, or from a certified production approval holder pursuant to part 21 of title 14, Code of Federal Regulations.

"(c) Definitions.—In this section:

"(1) Commercial derivative.—The term 'commercial derivative' means an item procured by the Department of Defense that is or was produced using the same or similar production facilities, a common supply chain, and the same or similar production processes that are used for the production of the item as predominantly used by the general public or by nongovernmental entities for purposes other than governmental purposes.

"(2) Commercial dual-use part.—The term 'commercial dual-use part' means a product that is—

"(A) a commercial product;

"(B) dual-use;

"(C) described in subsection (b)(2); and

"(D) not a life-limited part.

"(3) Commercial product.—The term 'commercial product' has the meaning given such term in section 103 of title 41, United States Code.

"(4) Dual-use.—The term 'dual-use' has the meaning given such term in section 4801 of title 10, United States Code."

Use of Commercial Items in Distributed Common Ground Systems

Pub. L. 115–91, div. A, title XVI, §1698, Dec. 12, 2017, 131 Stat. 1794, provided that:

"(a) In General.—The procurement process for each covered Distributed Common Ground System shall be carried out in accordance with section 2377 of title 10, United States Code [now 10 U.S.C. 3453].

"(b) Certification.—Not later than 30 days after the date of the enactment of this Act [Dec. 12, 2017], the service acquisition executive responsible for each covered Distributed Common Ground System shall certify to the appropriate congressional committees that the procurement process for increments of the system procured after the date of the enactment of this Act will be carried out in accordance with section 2377 of title 10, United States Code [now 10 U.S.C. 3453].

"(c) Definitions.—In this section:

"(1) The term 'appropriate congressional committees' means—

"(A) the congressional defense committees [Committees on Armed Services and Appropriations of the Senate and the House of Representatives]; and

"(B) the Select Committee on Intelligence of the Senate and the Permanent Select Committee on Intelligence of the House of Representatives.

"(2) The term 'covered Distributed Common Ground System' includes the following:

"(A) The Distributed Common Ground System of the Army.

"(B) The Distributed Common Ground System of the Navy.

"(C) The Distributed Common Ground System of the Marine Corps.

"(D) The Distributed Common Ground System of the Air Force.

"(E) The Distributed Common Ground System of the Special Operations Forces."

Commercial Operational and Support Savings Initiative

Pub. L. 114–328, div. A, title VIII, §849(d), Dec. 23, 2016, 130 Stat. 2294, as amended by Pub. L. 115–232, div. A, title VIII, §836(f)(7), Aug. 13, 2018, 132 Stat. 1871, provided that:

"(1) In general.—The Secretary of Defense may establish a commercial operational and support savings initiative to improve readiness and reduce operations and support costs by inserting existing commercial products or technology into military legacy systems through the rapid development of prototypes and fielding of production items based on current commercial technology.

"(2) Program priority.—The commercial operational and support savings initiative shall fund programs that—

"(A) reduce the costs of owning and operating a military system, including the costs of personnel, consumables, goods and services, and sustaining the support and investment associated with the peacetime operation of a weapon system;

"(B) take advantage of the commercial sector's technological innovations by inserting commercial technology into fielded weapon systems; and

"(C) emphasize prototyping and experimentation with new technologies and concepts of operations.

"(3) Funding phases.—

"(A) In general.—Projects funded under the commercial operational and support savings initiative shall consist of two phases, Phase I and Phase II.

"(B) Phase i.—(i) Funds made available during Phase I shall be used to perform the non-recurring engineering, testing, and qualification that are typically needed to adapt a commercial product or technology for use in a military system.

"(ii) Phase I shall include—

"(I) establishment of cost and performance metrics to evaluate project success;

"(II) establishment of a transition plan and agreement with a military department or Defense Agency for adoption and sustainment of the technology or system; and

"(III) the development, fabrication, and delivery of a demonstrated prototype to a military department for installation into a fielded Department of Defense system.

"(iii) Programs shall be terminated if no agreement is established within two years of project initiation.

"(iv) The Office of the Secretary of Defense may provide up to 50 percent of Phase I funding for a project. The military department or Defense Agency concerned may provide the remainder of Phase I funding, which may be provided out of operation and maintenance funding.

"(v) Phase I funding shall not exceed three years.

"(vi) Phase I projects shall be selected based on a merit-based process using criteria to be established by the Secretary of Defense.

"(C) Phase ii.—(i) Phase II shall include the purchase of limited production quantities of the prototype kits and transition to a program of record for continued sustainment.

"(ii) Phase II awards may be made without competition if general solicitation competitive procedures were used for the selection of parties for participation in a Phase I project.

"(iii) Phase II awards may be made as firm fixed-price awards.

"(4) Treatment as competitive procedures.—The use of a merit-based process for selection of projects under the commercial operational and support savings initiative shall be considered to be the use of competitive procedures for purposes of [former] chapter 137 of title 10, United States Code.

"(5) Definition.—In this subsection, the term 'commercial product' has the meaning given that term in section 103 of title 41."

Preference for Commercial Services

Pub. L. 114–328, div. A, title VIII, §876, Dec. 23, 2016, 130 Stat. 2311, as amended by Pub. L. 116–92, div. A, title IX, §902(59), Dec. 20, 2019, 133 Stat. 1550, provided that: "Not later than 90 days after the date of the enactment of this Act [Dec. 23, 2016], the Secretary of Defense shall revise the guidance issued pursuant to section 855 of the National Defense Authorization Act for Fiscal Year 2016 (Public Law 114–92; 10 U.S.C. 2377 note) to provide that—

"(1) the head of an agency may not enter into a contract in excess of $10,000,000 for facilities-related services, knowledge-based services (except engineering services), construction services, medical services, or transportation services that are not commercial services unless the service acquisition executive of the military department concerned, the head of the Defense Agency concerned, the commander of the combatant command concerned, or the Under Secretary of Defense for Acquisition and Sustainment (as applicable) determines in writing that no commercial services are suitable to meet the agency's needs as provided in section 2377(c)(2) of title 10, United States Code [now 10 U.S.C. 3453(c)(2)]; and

"(2) the head of an agency may not enter into a contract in an amount above the simplified acquisition threshold and below $10,000,000 for facilities-related services, knowledge-based services (except engineering services), construction services, medical services, or transportation services that are not commercial services unless the contracting officer determines in writing that no commercial services are suitable to meet the agency's needs as provided in section 2377(c)(2) of such title [now 10 U.S.C. 3453(c)(2)]."

Incorporation Into Management Certification Training Mandate

Pub. L. 114–92, div. A, title VIII, §844(b), Nov. 25, 2015, 129 Stat. 915, provided that: "The Chairman of the Joint Chiefs of Staff shall ensure that the requirements of section 2377(d) of title 10, United States Code [now 10 U.S.C. 3453(e)], as added by subsection (a), are incorporated into the requirements management certification training mandate of the Joint Capabilities Integration Development System."

Market Research and Preference for Commercial Items

Pub. L. 114–92, div. A, title VIII, §855, Nov. 25, 2015, 129 Stat. 919, as amended by Pub. L. 116–92, div. A, title IX, §902(60), Dec. 20, 2019, 133 Stat. 1550, provided that:

"(a) Guidance Required.—Not later than 90 days after the date of the enactment of this Act [Nov. 25, 2015], the Under Secretary of Defense for Acquisition and Sustainment shall issue guidance to ensure that acquisition officials of the Department of Defense fully comply with the requirements of section 2377 of title 10, United States Code [now 10 U.S.C. 3453], regarding market research and commercial items. The guidance issued pursuant to this subsection shall, at a minimum—

"(1) provide that the head of an agency may not enter into a contract in excess of the simplified acquisition threshold for information technology products or services that are not commercial items unless the head of the agency determines in writing that no commercial items are suitable to meet the agency's needs as provided in subsection (c)(2) of such section; and

"(2) ensure that market research conducted in accordance with subsection (c) of such section is used, where appropriate, to inform price reasonableness determinations.

"(b) Review Required.—Not later than 180 days after the date of the enactment of this Act [Nov. 25, 2015], the Chairman and the Vice Chairman of the Joint Chiefs of Staff, in consultation with the Under Secretary of Defense for Acquisition and Sustainment, shall review Chairman of the Joint Chiefs of Staff Instruction 3170.01, the Manual for the Operation of the Joint Capabilities Integration and Development System, and other documents governing the requirements development process and revise these documents as necessary to ensure that the Department of Defense fully complies with the requirement in section 2377(c) of title 10, United States Code [now 10 U.S.C. 3453(c)], and section 10.001 of the Federal Acquisition Regulation for Federal agencies to conduct appropriate market research before developing new requirements.

"(c) Market Research Defined.—For the purposes of this section, the term 'market research' means a review of existing systems, subsystems, capabilities, and technologies that are available or could be made available to meet the needs of the Department of Defense in whole or in part. The review may include any of the techniques for conducting market research provided in section 10.002(b)(2) of the Federal Acquisition Regulation and shall include, at a minimum, contacting knowledgeable individuals in Government and industry regarding existing market capabilities."

Commercial Software Reuse Preference

Pub. L. 110–417, [div. A], title VIII, §803, Oct. 14, 2008, 122 Stat. 4519, provided that:

"(a) In General.—The Secretary of Defense shall ensure that contracting officials identify and evaluate, at all stages of the acquisition process (including concept refinement, concept decision, and technology development), opportunities for the use of commercial computer software and other non-developmental software.

"(b) Report.—Not later than 270 days after the date of enactment of this Act [Oct. 14, 2008], the Secretary shall submit to the congressional defense committees [Committees on Armed Services and Appropriations of the Senate and the House of Representatives] a report on actions taken to implement subsection (a), including a description of any relevant regulations and policy guidance."

Requirement To Develop Training and Tools

Pub. L. 110–181, div. A, title VIII, §826(b), Jan. 28, 2008, 122 Stat. 228, provided that: "The Secretary of Defense shall develop training to assist contracting officers, and market research tools to assist such officers and prime contractors, in performing appropriate market research as required by subsection (c) of section 2377 of title 10, United States Code [now 10 U.S.C. 3453(c)], as amended by this section."

§3455. Procurement of a major weapon system as a commercial product: requirement for prior determination by Secretary of Defense and notification to Congress

(a) Requirement for Determination and Notification.—A major weapon system of the Department of Defense may be treated as a commercial product, or purchased under procedures established for the procurement of commercial products, only if—

(1) the Secretary of Defense determines that—

(A) the major weapon system is a commercial product; and

(B) such treatment is necessary to meet national security objectives; and

(2) the congressional defense committees are notified at least 30 days before such treatment or purchase occurs.

(b) Treatment of Subsystems as Commercial Products.—(1) A subsystem of a major weapon system (other than a commercially available off-the-shelf item as defined in section 104 of title 41) shall be treated as a commercial product and purchased under procedures established for the procurement of commercial products if either—

(A) the subsystem is intended for a major weapon system that is being purchased, or has been purchased, under procedures established for the procurement of commercial products in accordance with the requirements of subsection (a); or

(B) the contracting officer determines in writing that the subsystem is a commercial product.

(2)(A) For a subsystem proposed as commercial (as defined in section 103(1) of title 41) and that has not been previously determined commercial in accordance with section 3703(d) of this title, the offeror shall—

(i) identify the comparable commercial product the offeror sells to the general public or nongovernmental entities that serves as the basis for the "of a type" assertion;

(ii) submit to the contracting officer a comparison necessary to serve as the basis of the "of a type" assertion of the physical characteristics and functionality between the subsystem and the comparable commercial product identified under clause (i); and

(iii) provide to the contracting officer the National Stock Number for both the comparable commercial product identified under clause (i), if one is assigned, and the subsystem, if one is assigned.

(B) If the offeror does not sell a comparable commercial product to the general public or nongovernmental entities for purposes other than governmental purposes that can serve as the basis for an "of a type" assertion with respect to the subsystem—

(i) the offeror shall—

(I) notify the contracting officer in writing that it does not so sell such a comparable commercial product; and

(II) provide to the contracting officer a comparison necessary to serve as the basis of the "of a type" assertion of the physical characteristics and functionality between the subsystem and the most comparable commercial product in the commercial marketplace, to the extent reasonably known by the offeror; and

(ii) subparagraph (A) shall not apply with respect to the offeror for such subsystem.

(c) Treatment of Components and Spare Parts as Commercial Products.—(1) A component or spare part for a major weapon system (other than a commercially available off-the-shelf item as defined in section 104 of title 41) may be treated as a commercial product for the purposes of chapter 271 of this title if either—

(A) the component or spare part is intended for—

(i) a major weapon system that is being purchased, or has been purchased, under procedures established for the procurement of commercial products in accordance with the requirements of subsection (a); or

(ii) a subsystem of a major weapon system that is being purchased, or has been purchased, under procedures established for the procurement of commercial products in accordance with the requirements of subsection (b); or

(B) the contracting officer determines in writing that the component or spare part is a commercial product.

(2)(A) For a component or spare part proposed as commercial (as defined in section 103(1) of title 41) and that has not previously been determined commercial in accordance with section 3703(d) of this title, the offeror shall—

(i) identify the comparable commercial product the offeror sells to the general public or nongovernmental entities that serves as the basis for the "of a type" assertion;

(ii) submit to the contracting officer a comparison necessary to serve as the basis of the "of a type" assertion of the physical characteristics and functionality between the component or spare part and the comparable commercial product identified under clause (i); and

(iii) provide to the contracting officer the National Stock Number for both the comparable commercial product identified under clause (i), if one is assigned, and the component or spare part, if one is assigned.

(B) If the offeror does not sell a comparable commercial product to the general public or nongovernmental entities for purposes other than governmental purposes that can serve as the basis for an "of a type" assertion with respect to the component or spare part—

(i) the offeror shall—

(I) notify the contracting officer in writing that it does not so sell such a comparable commercial product; and

(II) provide to the contracting officer a comparison necessary to serve as the basis of the "of a type" assertion of the physical characteristics and functionality between the component or spare part and the most comparable commercial product in the commercial marketplace, to the extent reasonably known by the offeror; and

(ii) subparagraph (A) shall not apply with respect to the offeror for such component or spare part.

(d) Information Submitted for Procurements That Are Not Covered by the Exceptions in Section 3703(a)(1) of This Title.—(1) To the extent necessary to determine the reasonableness of the price for items acquired under this section, the offeror shall, in accordance with paragraph (4), submit to the contracting officer or provide the contracting officer access to—

(A) a representative sample, as determined by the contracting officer, of the prices paid for the same or similar commercial products under comparable terms and conditions by both Government and commercial customers, and the terms and conditions of such sales;

(B) if the contracting officer determines that the offeror does not have access to and cannot provide sufficient information described in subparagraph (A) to determine the reasonableness of price, a representative sample, as determined by the contracting officer, of the prices paid for the same or similar commercial products sold under different terms and conditions, and the terms and conditions of such sales; and

(C) only if the contracting officer determines that the information submitted pursuant to subparagraphs (A) and (B) is not sufficient to determine the reasonableness of price because either the comparable commercial products provided by the offeror are not a valid basis for a price analysis or the contracting officer determines the proposed price is not reasonable after evaluating sales data, and the contracting officer receives the approval described in paragraph (5), other relevant information regarding the basis for price or cost, including information on labor costs, material costs, and overhead rates.

(2) An offeror may submit information or analysis relating to the value of a commercial product to aid in the determination of the reasonableness of the price of such item. A contracting officer may consider such information or analysis in addition to the information submitted pursuant to paragraphs (1)(A) and (1)(B).

(3) An offeror may not be required to submit information described in paragraph (1)(C) with regard to a commercially available off-the-shelf item and may be required to submit such information with regard to any other item that was developed exclusively at private expense only after the head of the contracting activity determines in writing that the information submitted pursuant to paragraphs (1)(A) and (1)(B) is not sufficient to determine the reasonableness of price.

(4)(A) An offeror may redact data information submitted or made available under subparagraph (A) or (B) of paragraph (1) with respect to sales of an item acquired under this section only to the extent necessary to remove information individually identifying government customers, commercial customers purchasing such item for governmental purposes, and commercial customers purchasing such item for commercial, mixed, or unknown purposes.

(B) Before an offeror may exercise the authority under subparagraph (A) with respect to a customer, the offeror shall certify in writing to the contracting officer whether the customer is a government customer, a commercial customer purchasing the item for governmental purpose, or a commercial customer purchasing the item for a commercial, mixed, or unknown purpose.

(5) A contracting officer may not require an offeror to submit or make available information under paragraph (1)(C) without approval from a level above the contracting officer.

(6) Nothing in this subsection shall relieve an offeror of other obligations under any other law or regulation to disclose and support the actual rationale of the offeror for the price proposed by the offeror to the Government for any good or service.

(e) Delegation.—The authority of the Secretary of Defense to make a determination under subsection (a) may be delegated only to the Deputy Secretary of Defense, without further redelegation.

(f) Major Weapon System Defined.—In this section, the term "major weapon system" means a weapon system acquired pursuant to a major defense acquisition program (as that term is defined in section 2430 ¹ of this title).

(g) Applicability.—

(1) In general.—Subsections (b) and (c) shall apply only with respect to subsystems described in subsection (b) and components or spare parts described in subsection (c), respectively, that the Department of Defense acquires through—

(A) a prime contract;

(B) a modification to a prime contract; or

(C) a subcontract described in paragraph (2).

(2) Subcontract described.—A subcontract described in this paragraph is a subcontract through which the Department of Defense acquires a subsystem or component or spare part proposed as commercial (as defined in section 103(1) of title 41) under this section and that has not previously been determined commercial in accordance with section 3703(d).

(Added Pub. L. 109–163, div. A, title VIII, §803(a)(1), Jan. 6, 2006, 119 Stat. 3370, §2379; amended Pub. L. 110–181, div. A, title VIII, §815(a)(1), Jan. 28, 2008, 122 Stat. 222; Pub. L. 113–291, div. A, title X, §1071(a)(7), Dec. 19, 2014, 128 Stat. 3504; Pub. L. 114–92, div. A, title VIII, §852(a)–(d), Nov. 25, 2015, 129 Stat. 917, 918; Pub. L. 114–328, div. A, title VIII, §872, Dec. 23, 2016, 130 Stat. 2307; Pub. L. 115–232, div. A, title VIII, §836(d)(4), (8)(D), Aug. 13, 2018, 132 Stat. 1868, 1869; renumbered §3455 and amended Pub. L. 116–283, div. A, title XVIII, §§1821(a)(2), (b)(4), 1831(j)(4), 1883(b)(2), Jan. 1, 2021, 134 Stat. 4195, 4217, 4294; Pub. L. 117–81, div. A, title XVII, §1701(b)(10)(i)(ii), Dec. 27, 2021, 135 Stat. 2134; Pub. L. 117–263, div. A, title VIII, §803, Dec. 23, 2022, 136 Stat. 2693.)

Editorial Notes

References in Text

Section 2430 of this title, referred to in subsec. (f), was transferred to sections 4201, 4202, and 4204 of this title by Pub. L. 116–283, div. A, title XVIII, §1846(c)(1), (d)(1), (f)(1), Jan. 1, 2021, 134 Stat. 4248–4250. Section 4201 of this title defines "major defense acquisition program".

Amendments

2022—Subsec. (b). Pub. L. 117–263, §803(a), designated existing provisions as par. (1), redesignated former pars. (1) and (2) as subpars. (A) and (B), respectively, of par. (1), and added par. (2).

Subsec. (c)(2). Pub. L. 117–263, §803(b), amended par. (2) generally. Prior to amendment, par. (2) read as follows: "This subsection shall apply only to components and spare parts that are acquired by the Department of Defense through a prime contract or a modification to a prime contract (or through a subcontract under a prime contract or modification to a prime contract on which the prime contractor adds no, or negligible, value)."

Subsec. (d). Pub. L. 117–263, §803(c)(1), inserted "for Procurements That Are Not Covered by the Exceptions in Section 3703(a)(1) of This Title" after "Submitted" in heading.

Subsec. (d)(1). Pub. L. 117–263, §803(c)(2)(A), in introductory provisions, substituted "the offeror shall, in accordance with paragraph (4), submit to the contracting officer or provide the contracting officer access to—" for "the contracting officer shall require the offeror to submit—".

Subsec. (d)(1)(A). Pub. L. 117–263, §803(c)(2)(B), inserted "a representative sample, as determined by the contracting officer, of the" before "prices paid" and ", and the terms and conditions of such sales" before semicolon at end.

Subsec. (d)(1)(B). Pub. L. 117–263, §803(c)(2)(C), substituted "a representative sample, as determined by the contracting officer, of the prices paid for the same or similar commercial products sold under different terms and conditions, and the terms and conditions of such sales; and" for "information on—

"(i) prices for the same or similar items sold under different terms and conditions;

"(ii) prices for similar levels of work or effort on related products or services;

"(iii) prices for alternative solutions or approaches; and

"(iv) other relevant information that can serve as the basis for a price assessment; and".

Subsec. (d)(1)(C). Pub. L. 117–263, §803(c)(2)(D), inserted "only" before "if the contracting officer" and "because either the comparable commercial products provided by the offeror are not a valid basis for a price analysis or the contracting officer determines the proposed price is not reasonable after evaluating sales data, and the contracting officer receives the approval described in paragraph (5)" after "reasonableness of price".

Subsec. (d)(4) to (6). Pub. L. 117–263, §803(c)(3), added pars. (4) to (6).

Subsec. (g). Pub. L. 117–263, §803(d), added subsec. (g).

2021—Pub. L. 116–283, §1821(a)(2), renumbered section 2379 of this title as this section.

Subsec. (c)(1). Pub. L. 116–283, §1831(j)(4), which directed amendment of this section by substituting "sections 3701–3708" for "section 2306a" and could not be executed, was repealed by Pub. L. 117–81, §1701(b)(10)(I)(ii).

Pub. L. 116–283, §1821(b)(4), substituted "chapter 271" for "section 2306a" in introductory provisions.

Subsec. (f). Pub. L. 116–283, §1883(b)(2), which directed that each reference in the text of title 10 to a section that was redesignated by title XVIII of Pub. L. 116–283, as such section was in effect before the redesignation, be amended by striking such reference and inserting a reference to the appropriate redesignated section, was not executed with respect to "section 2430", which was redesignated as multiple sections.

2018—Pub. L. 115–232, §836(d)(8)(D), substituted "Procurement of a major weapon system as a commercial product: requirement for prior determination by Secretary of Defense and notification to Congress" for "Requirement for determination by Secretary of Defense and notification to Congress before procurement of major weapon systems as commercial items" in section catchline.

Pub. L. 115–232, §836(d)(4)(C), substituted "commercial product" for "commercial item" and "commercial products" for "commercial items" wherever appearing.

Subsec. (a)(1)(A). Pub. L. 115–232, §836(d)(4)(B), struck out ", as defined in section 103 of title 41" before "; and".

Subsec. (b). Pub. L. 115–232, §836(d)(4)(A), substituted "Commercial Products" for "Commercial Items" in heading.

Subsec. (b)(2). Pub. L. 115–232, §836(d)(4)(B), struck out ", as defined in section 103 of title 41" before period.

Subsec. (c). Pub. L. 115–232, §836(d)(4)(A), substituted "Commercial Products" for "Commercial Items" in heading.

Subsec. (c)(1)(B). Pub. L. 115–232, §836(d)(4)(B), struck out ", as defined in section 103 of title 41" before period.

2016—Subsec. (d)(2), (3). Pub. L. 114–328 added par. (2) and redesignated former par. (2) as (3).

2015—Subsec. (a). Pub. L. 114–92, §852(a), inserted "and" at end of par. (1)(B), redesignated par. (3) as (2), and struck out former par. (2) which read as follows: "the offeror has submitted sufficient information to evaluate, through price analysis, the reasonableness of the price for such system; and".

Subsec. (b). Pub. L. 114–92, §852(b)(1), substituted "if either" for "only if" in introductory provisions.

Subsec. (b)(2). Pub. L. 114–92, §852(b)(2), substituted "writing that" for "writing that—", struck out subpar. (A) designation before "the subsystem is a", substituted "title 41." for "title 41; and", and struck out subpar. (B) which read as follows: "the offeror has submitted sufficient information to evaluate, through price analysis, the reasonableness of the price for such subsystem."

Subsec. (c)(1). Pub. L. 114–92, §852(c)(1), substituted "title if either" for "title only if" in introductory provisions.

Subsec. (c)(1)(B). Pub. L. 114–92, §852(c)(2), substituted "writing that" for "writing that—", struck out cl. (i) designation before "the component or", substituted "title 41." for "title 41; and", and struck out cl. (ii) which read as follows: "the offeror has submitted sufficient information to evaluate, through price analysis, the reasonableness of the price for such component or spare part."

Subsec. (d). Pub. L. 114–92, §852(d), amended subsec. (d) generally. Prior to amendment, text read as follows: "To the extent necessary to make a determination under subsection (a)(2), (b)(2), or (c)(1)(B), the contracting officer may request the offeror to submit—

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

"(2) if the contracting officer determines that the information described in paragraph (1) 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."

2014—Subsec. (a)(1)(A). Pub. L. 113–291, §1071(a)(7)(A), substituted "section 103 of title 41" for "section 4(12) of the Office of Federal Procurement Policy Act (41 U.S.C. 403(12))".

Subsec. (b). Pub. L. 113–291, §1071(a)(7)(B), substituted "section 104 of title 41" for "section 35(c) of the Office of Federal Procurement Policy Act (41 U.S.C. 431(c))" in introductory provisions.

Subsec. (b)(2)(A). Pub. L. 113–291, §1071(a)(7)(A), substituted "section 103 of title 41" for "section 4(12) of the Office of Federal Procurement Policy Act (41 U.S.C. 403(12))".

Subsec. (c)(1). Pub. L. 113–291, §1071(a)(7)(B), substituted "section 104 of title 41" for "section 35(c) of the Office of Federal Procurement Policy Act (41 U.S.C. 431(c))" in introductory provisions.

Subsec. (c)(1)(B)(i). Pub. L. 113–291, §1071(a)(7)(A), substituted "section 103 of title 41" for "section 4(12) of the Office of Federal Procurement Policy Act (41 U.S.C. 403(12))".

2008—Subsec. (a)(2), (3). Pub. L. 110–181, §815(a)(1)(A), added par. (2) and redesignated former par. (2) as (3).

Subsec. (b). Pub. L. 110–181, §815(a)(1)(B), added subsec. (b) and struck out former subsec. (b). Former text read as follows: "A subsystem or component of a major weapon system shall be treated as a commercial item and purchased under procedures established for the procurement of commercial items if such subsystem or component otherwise meets the requirements (other than requirements under subsection (a)) for treatment as a commercial item."

Subsecs. (c) to (f). Pub. L. 110–181, §815(a)(1)(C), (D), added subsecs. (c) and (d) and redesignated former subsecs. (c) and (d) as (e) and (f), respectively.

Statutory Notes and Related Subsidiaries

Effective Date of 2021 Amendment

Amendment by Pub. L. 117–81 applicable as if included in the enactment of title XVIII of Pub. L. 116–283 as enacted, see section 1701(a)(2) of Pub. L. 117–81, set out in a note preceding section 3001 of this title and note below.

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 a note preceding section 3001 of this title.

Effective Date of 2018 Amendment

Amendment 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.

Effective Date

Pub. L. 109–163, div. A, title VIII, §803(b), Jan. 6, 2006, 119 Stat. 3371, provided that: "The amendments made by subsection (a) [enacting this section] shall take effect on the date of the enactment of this Act [Jan. 6, 2006], and shall apply to contracts entered into on or after such date."

¹ See References in Text note below.

§3456. Commercial product and commercial service determinations by Department of Defense

(a) In General.—The Secretary of Defense shall—

(1) establish and maintain a centralized capability with necessary expertise and resources to provide assistance to the military departments and Defense Agencies in making commercial product and commercial service determinations, conducting market research, and performing analysis of price reasonableness for the purposes of procurements by the Department of Defense; and

(2) provide to officials of the Department of Defense access to previous Department of Defense commercial product and commercial service determinations, market research, and analysis used to determine the reasonableness of price for the purposes of procurements by the Department of Defense.

(b) Determinations Regarding the Commercial Nature of Products or Services.—

(1) In general.—In making a determination whether a particular product or service offered by a contractor meets the definition of a commercial product or commercial service, a contracting officer of the Department of Defense may—

(A) request support from the Director of the Defense Contract Management Agency, the Director of the Defense Contract Audit Agency, or other appropriate experts in the Department to make a determination whether a product or service is a commercial product or commercial service; and

(B) consider the views of appropriate public and private sector entities.

(2) Memorandum.—Within 30 days after a contract award, the contracting officer shall, consistent with the policies and regulations of the Department, submit a written memorandum summarizing the determination referred to in paragraph (1), including a detailed justification why the product or service was determined to be commercial or noncommercial. Upon the request of the contractor or subcontractor offering the product or service for which such determination is summarized in such memorandum, the contracting officer shall provide to such contractor or subcontractor a copy of such memorandum.

(c) Items Previously Acquired Using Commercial Acquisition Procedures.—

(1) Determinations.—A contract or subcontract for a product (including a product without a part number or a product with a prior part number that has the same functionality as the product had with the prior part number) or service acquired using commercial acquisition procedures under part 12 of the Federal Acquisition Regulation shall serve as a prior commercial product or commercial service determination with respect to such product or service for purposes of this chapter, including when subject to minor modifications, unless—

(A) the prior determination was not issued or approved by a contracting officer of the Department of Defense; or

(B) the senior procurement executive of the military department or the Department of Defense as designated for purposes of section 1702(c) of title 41 determines in writing that it is no longer appropriate to acquire the product or service using commercial acquisition procedures.

(2) Limitation.—(A) Except as provided under subparagraph (B), funds appropriated or otherwise made available to the Department of Defense may not be used for the procurement under part 15 of the Federal Acquisition Regulation of a product or service that was previously acquired under a contract using commercial acquisition procedures under part 12 of the Federal Acquisition Regulation.

(B) The limitation under subparagraph (A) does not apply to the procurement of a product or service that was previously acquired using commercial acquisition procedures under part 12 of the Federal Acquisition Regulation following—

(i) a written determination by the head of contracting activity pursuant to section 3703(d)(2) of this title that the use of such procedures was improper; or

(ii) a written determination by the senior procurement executive of the military department or the Department of Defense as designated for purposes of section 1702(c) of title 41 that it is no longer appropriate to acquire the product or service using such procedures.

(Added Pub. L. 114–92, div. A, title VIII, §851(a)(1), Nov. 25, 2015, 129 Stat. 916, §2380; amended Pub. L. 114–328, div. A, title VIII, §873, Dec. 23, 2016, 130 Stat. 2307; Pub. L. 115–91, div. A, title VIII, §848, Dec. 12, 2017, 131 Stat. 1487; Pub. L. 115–232, div. A, title VIII, §836(d)(5), (8)(E), Aug. 13, 2018, 132 Stat. 1868, 1869; renumbered §3456 and amended Pub. L. 116–283, div. A, title VIII, §816, title XVIII, §§1821(a)(2), (b)(5), 1831(j)(5), Jan. 1, 2021, 134 Stat. 3750, 4195, 4217; Pub. L. 117–81, div. A, title XVII, §1701(b)(9), (10)(I)(ii), Dec. 27, 2021, 135 Stat. 2133, 2134; Pub. L. 118–31, div. A, title VIII, §801, Dec. 22, 2023, 137 Stat. 312; Pub. L. 118–159, div. A, title VIII, §814, Dec. 23, 2024, 138 Stat. 1980.)

Editorial Notes

Amendments

2024—Subsec. (c)(1). Pub. L. 118–159 added par. (1) and struck out former par. (1). Prior to amendment, text read as follows: "A contract for a product or service acquired using commercial acquisition procedures under part 12 of the Federal Acquisition Regulation shall serve as a prior commercial product or service determination with respect to such product or service for purposes of this chapter unless the senior procurement executive of the military department or the Department of Defense as designated for purposes of section 1702(c) of title 41 determines in writing that it is no longer appropriate to acquire the product or service using commercial acquisition procedures."

2023—Subsec. (b)(2). Pub. L. 118–31 substituted "why the product or service was determined to be commercial or noncommercial" for "for such determination" and inserted at end "Upon the request of the contractor or subcontractor offering the product or service for which such determination is summarized in such memorandum, the contracting officer shall provide to such contractor or subcontractor a copy of such memorandum."

2021—Pub. L. 116–283, §1821(a)(2), renumbered section 2380 of this title as this section.

Subsec. (b). Pub. L. 116–283, §816(2), added subsec. (b). Former subsec. (b) redesignated (c).

Subsec. (b)(2)(B)(i). Pub. L. 116–283, §1831(j)(5), which directed amendment of subsec. (b)(2)(B)(i) of section 2380 of this title (now subsec. (c)(2)(B)(i) of this section) by substituting "section 3703(d)(2)" for "section 2306a(b)(4)(B)", was repealed by Pub. L. 117–81, §1701(b)(10)(I)(ii). Identical amendment was made to subsec. (c)(2)(B)(i) of this section by Pub. L. 116–283, §1821(b)(5), see below.

Subsec. (c). Pub. L. 116–283, §816(1), redesignated subsec. (b) as (c).

Subsec. (c)(2)(B)(i). Pub. L. 116–283, §1821(b)(5), as amended by Pub. L. 117–81, §1701(b)(9), substituted "section 3703(d)(2)" for "section 2306a(b)(4)(B)".

2018—Pub. L. 115–232, §836(d)(8)(E), substituted "Commercial product and commercial service" for "Commercial item" in section catchline.

Subsec. (a). Pub. L. 115–232, §836(d)(5)(A), substituted "commercial product and commercial service determinations" for "commercial item determinations" in pars. (1) and (2).

Subsec. (b). Pub. L. 115–232, §836(d)(5)(B)(i)–(iii), in heading, struck out "Item" after "Commercial" and, in text, substituted "a product or service" for "an item" and struck out "item" after "using commercial" wherever appearing.

Subsec. (b)(1). Pub. L. 115–232, §836(d)(5)(B)(iv)–(vi) substituted "prior commercial product or service determination" for "prior commercial item determination", "such product or service" for "such item", and "the product or service" for "the item".

Subsec. (b)(2)(B)(ii). Pub. L. 115–232, §836(d)(5)(B)(vi), substituted "the product or service" for "the item".

2017—Pub. L. 115–91 designated existing provisions as subsec. (a), inserted heading, and added subsec. (b).

2016—Pars. (1), (2). Pub. L. 114–328 amended pars. (1) and (2) generally. Prior to amendment, pars. (1) and (2) read as follows:

"(1) establish and maintain a centralized capability with necessary expertise and resources to oversee the making of commercial item determinations for the purposes of procurements by the Department of Defense; and

"(2) provide public access to Department of Defense commercial item determinations for the purposes of procurements by the Department of Defense."

Statutory Notes and Related Subsidiaries

Effective Date of 2021 Amendment

Amendment by Pub. L. 117–81 applicable as if included in the enactment of title XVIII of Pub. L. 116–283 as enacted, see section 1701(a)(2) of Pub. L. 117–81, set out in a note preceding section 3001 of this title and note below.

Amendment by sections 1821(a)(2), (b)(5) and 1831(j)(5) of 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 a note preceding section 3001 of this title.

Effective Date of 2018 Amendment

Amendment 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.

Regulations

Pub. L. 114–92, div. A, title VIII, §851(d), Nov. 25, 2015, 129 Stat. 917, provided that: "Not later than 180 days after the date of the enactment of this Act [Nov. 25, 2015], the Defense Federal Acquisition Regulation Supplement shall be updated to reflect the requirements of this section [enacting this section, amending section 2306a of this title, and enacting provisions set out as notes under section 2306a of this title] and the amendments made by this section."

Construction

Pub. L. 114–92, div. A, title VIII, §851(e), Nov. 25, 2015, 129 Stat. 917, provided that: "Nothing in this section [enacting this section, amending section 2306a of this title, and enacting provisions set out as notes under section 2306a of this title] or the amendments made by this section shall be construed to preclude the contracting officer for the procurement of a commercial item from requiring the contractor to supply information that is sufficient to determine the reasonableness of price, regardless of whether or not the contractor was required to provide such information in connection with any earlier procurement."

Definition of Commercial Item

Pub. L. 114–92, div. A, title VIII, §851(c), Nov. 25, 2015, 129 Stat. 917, provided that: "Nothing in this section [enacting section 2380 of this title, amending section 2306a of this title, and enacting provisions set out as notes under section 2306a of this title] or the amendments made by this section shall affect the meaning of the term 'commercial item' under subsection (a)(5) of section 2464 of title 10, United States Code, or any requirement under subsection (a)(3) or subsection (c) of such section." [Pub. L. 115–232 amended subsecs. (a)(3), (5) and (c) of section 2464 of title 10 by substituting references to "commercial products or commercial services" for references to "commercial items". See 2018 Amendment notes set out under that section.]

§3457. Treatment of certain products and services as commercial products and commercial services

(a) Goods and Services Provided by Nontraditional Defense Contractors.—Notwithstanding section 3451(1) of this title, products and services provided by nontraditional defense contractors (as that term is defined in section 3014 of this title) may be treated by the head of an agency as commercial products and commercial services, respectively, for purposes of this chapter.

(b) Services Provided by Certain Nontraditional Contractors.—Notwithstanding section 3451(1) of this title, services provided by a business unit that is a nontraditional defense contractor (as that term is defined in section 3014 of this title) shall be treated as commercial services for purposes of this chapter, to the extent that such services use the same pool of employees as used for commercial customers and are priced using methodology similar to methodology used for commercial pricing.

(c) Commingled Items Purchased by Contractors.—Notwithstanding section 3451(1) of this title, items valued at less than $10,000 that are purchased by a contractor for use in the performance of multiple contracts with the Department of Defense and other parties and are not identifiable to any particular contract shall be treated as a commercial product for purposes of this chapter.

(Added Pub. L. 114–92, div. A, title VIII, §857(a), Nov. 25, 2015, 129 Stat. 921, §2380A; renumbered §2380a and amended Pub. L. 114–328, div. A, title VIII, §878(a), (b)(1), Dec. 23, 2016, 130 Stat. 2312; Pub. L. 115–232, div. A, title VIII, §836(d)(6), (8)(F), Aug. 13, 2018, 132 Stat. 1868, 1869; renumbered §3457 and amended Pub. L. 116–283, div. A, title XVIII, §1821(a)(2), (b)(6), (7)(A), (B), Jan. 1, 2021, 134 Stat. 4195, 4196.)

Editorial Notes

Codification

Section 1821(a)(1), (2) of Pub. L. 116–260 transferred chapter 140 of this title (§§2375 to 2380b) to this chapter and renumbered all the sections within it, except for final section 2380b. At that point, the last two sections of this chapter were this section (renumbered from section 2380a) followed by section 2380b. Section 1821(b)(7)(A) subsequently struck out "the heading of the final section of" this chapter, which was executed by incorporating the text of former section 2380b at the end of this section. The text of section 2380b of this title was based on Pub. L. 114–328, div. A, title VIII, §877(a), Dec. 23, 2016, 130 Stat. 2311; Pub. L. 115–232, div. A, title VIII, §836(d)(7), (8)(G), Aug. 13, 2018, 132 Stat. 1868, 1869; Pub. L. 116–92, div. A, title XVII, §1731(a)(47), Dec. 20, 2019, 133 Stat. 1815.

Prior Provisions

A prior section 3491 was renumbered section 7191 of this title.

Prior sections 3492 and 3493 were repealed by Pub. L. 90–235, §1(a)(2), (b), Jan. 2, 1968, 81 Stat. 753.

Section 3492, act Aug. 10, 1956, ch. 1041, 70A Stat. 198, provided for extension of active service of Army members during war. See section 671a of this title.

Section 3493, act Aug. 10, 1956, ch. 1041, 70A Stat. 198, empowered the President to order commissioned officers of the Army Reserve to active duty with the Corps of Engineers.

A prior section 3494, added Pub. L. 85–861, §1(82)(A), Sept. 2, 1958, 72 Stat. 1481; amended Pub. L. 86–559, §1(20), June 30, 1960, 74 Stat. 271, provided that a reserve commissioned officer who is ordered to active duty be ordered to that duty in his reserve grade unless the Secretary of the Army orders him to active duty, other than for training, in a higher temporary grade and authorized a reserve commissioned officer who is selected for participation in a program under which he will be ordered to active duty for at least one academic year at a civilian school or college to be ordered, upon his request, to that duty in a temporary grade that is lower than his reserve grade, without affecting his reserve grade, prior to repeal by Pub. L. 96–513, title II, §209(a), title VII, §701, Dec. 12, 1980, 94 Stat. 2884, 2955, effective Sept. 15, 1981. See section 12320 of this title.

Prior sections 3495 to 3500 were repealed by Pub. L. 103–337, div. A, title XVI, §§1662(f)(2), 1691, Oct. 5, 1994, 108 Stat. 2994, 3026, effective Dec. 1, 1994.

Section 3495, act Aug. 10, 1956, ch. 1041, 70A Stat. 198, provided that members of Army National Guard of United States were not in active Federal service except when ordered thereto under law. See section 12401 of this title.

Section 3496, act Aug. 10, 1956, ch. 1041, 70A Stat. 198, authorized President to order commissioned officers of Army National Guard of United States to active duty in National Guard Bureau. See section 12402(a), (b)(1) of this title.

Section 3497, act Aug. 10, 1956, ch. 1041, 70A Stat. 199, provided that members of Army National Guard of United States ordered to active duty were to be ordered to duty as Reserves of Army. See section 12403 of this title.

Section 3498, act Aug. 10, 1956, ch. 1041, 70A Stat. 199, related to organization during initial mobilization of units of Army National Guard of United States ordered into active Federal service. See section 12404 of this title.

Section 3499, act Aug. 10, 1956, ch. 1041, 70A Stat. 199, related to application of laws governing Army to members of Army National Guard called into Federal service. See section 12405 of this title.

Section 3500, acts Aug. 10, 1956, ch. 1041, 70A Stat. 199; Sept. 29, 1988, Pub. L. 100–456, div. A, title XII, §1234(a)(1), (3), 102 Stat. 2059, authorized President to call Army National Guard units and members into Federal service. See section 12406 of this title.

Amendments

2021—Pub. L. 116–283, §1821(a)(2), renumbered section 2380a of this title as this section.

Subsecs. (a), (b). Pub. L. 116–283, §1821(b)(6), substituted "section 3451(1)" for "section 2376(1)" and "section 3014" for "section 2302(9)".

Subsec. (c). Pub. L. 116–283, §1821(b)(7)(A), (B), transferred section 2380b of this title to this section and struck out section designation and catchline, designated text as subsec. (c) and inserted heading, and substituted "Notwithstanding section 3451(1)" for "Notwithstanding section 2376(1)". See Codification note above.

2018—Pub. L. 115–232, §836(d)(8)(F), substituted "products and services as commercial products and commercial services" for "items as commercial items" in section catchline.

Subsec. (a). Pub. L. 115–232, §836(d)(6)(A), substituted "products and" for "items and" and "commercial products and commercial services, respectively," for "commercial items".

Subsec. (b). Pub. L. 115–232, §836(d)(6)(B), substituted "commercial services" for "commercial items".

2016—Pub. L. 114–328, §878(b)(1), which directed amendment of "Section 2380A of title 10" by striking out the section catchline and inserting "§2380a. Treatment of certain items as commercial items", was executed by redesignating this section as section 2380a and substituting "Treatment of certain items as commercial items" for "Treatment of goods and services provided by nontraditional defense contractors as commercial items" in section catchline, to reflect the probable intent of Congress.

Pub. L. 114–328, §878(a), designated existing provisions as subsec. (a), inserted heading, and added subsec. (b).

Statutory Notes and Related Subsidiaries

Effective Date of 2021 Amendment

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 a note preceding section 3001 of this title.

Effective Date of 2018 Amendment

Amendment 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.

§3458. Authority to acquire innovative commercial products and commercial services using general solicitation competitive procedures

(a) Authority.—The Secretary of Defense and the Secretaries of the military departments may acquire innovative commercial products and commercial services through a competitive selection of proposals resulting from a general solicitation and the peer review of such proposals.

(b) Treatment as Competitive Procedures.—Use of general solicitation competitive procedures under subsection (a) shall be considered to be use of competitive procedures for purposes of chapter 221 of this title.

(c) Limitations.—(1) The Secretary may not enter into a contract or agreement in excess of $100,000,000 using the authority under subsection (a) without a written determination from the Under Secretary of Defense for Acquisition and Sustainment or the relevant service acquisition executive of the efficacy of the effort to meet mission needs of the Department of Defense or the relevant military department.

(2) Contracts or agreements entered into using the authority under subsection (a) shall be fixed-price, including fixed-price incentive contracts.

(3) Notwithstanding section 3451(1) of this title, products and services acquired using the authority under subsection (a) shall be treated as commercial products and commercial services.

(d) Congressional Notification Required.—(1) Not later than 45 days after the award of a contract for an amount exceeding $100,000,000 using the authority in subsection (a), the Secretary shall notify the congressional defense committees of such award.

(2) Notice of an award under paragraph (1) shall include the following:

(A) Description of the innovative commercial product or commercial service acquired.

(B) Description of the requirement, capability gap, or potential technological advancement with respect to which the innovative commercial product or commercial service acquired provides a solution or a potential new capability.

(C) Amount of the contract awarded.

(D) Identification of the contractor awarded the contract.

(e) Innovative Defined.—In this section, the term "innovative" means—

(1) any technology, process, or method, including research and development, that is new as of the date of submission of a proposal; or

(2) any application that is new as of the date of submission of a proposal of a technology, process, or method existing as of such date.

(Added §2380c, renumbered §3458, and amended Pub. L. 117–81, div. A, title VIII, §803(a)(1), (b)(1), (3), Dec. 27, 2021, 135 Stat. 1814–1816; Pub. L. 117–263, div. A, title VIII, §814(a), Dec. 23, 2022, 136 Stat. 2707.)

Editorial Notes

Amendments

2022—Subsec. (c)(2). Pub. L. 117–263 substituted "fixed-price incentive contracts" for "fixed-price incentive fee contracts".

2021—Pub. L. 117–81, §803(b)(1), renumbered section 2380c of this title as this section.

Subsec. (b). Pub. L. 117–81, §803(b)(3)(A), substituted "chapter 221" for "chapter 137".

Subsec. (c)(3). Pub. L. 117–81, §803(b)(3)(B), substituted "section 3451(1)" for "section 2376(1)".

Statutory Notes and Related Subsidiaries

Effective Date of 2021 Amendment

Pub. L. 117–81, div. A, title VIII, §803(b)(4), Dec. 27, 2021, 135 Stat. 1816, provided that: "The transfer, redesignation, and amendments made by this subsection [amending this section and repealing provisions set out as a note under section 2302 of this title] shall take [sic] as if included in title XVIII of the William M. (Mac) Thornberry National Defense Authorization Act for Fiscal Year 2021 (Public Law 116–283)."

Focused Commercial Solutions Openings Opportunities

Pub. L. 118–31, div. A, title VIII, §813, Dec. 22, 2023, 137 Stat. 325, provided that:

"(a) Requirement.—During each fiscal year beginning after the date of the enactment of this Act [Dec. 22, 2023], the Secretary of Defense, in coordination with the service acquisition executives of each military department, shall exercise the authority under section 3458 of title 10, United States Code, not less than four times to acquire goods or services addressing the mission needs of a geographic combatant command.

"(b) Execution.—With respect to acquisition carried out under section 3458 of title 10, United States Code, pursuant to subsection (a), the Secretary of Defense shall—

"(1) assign the responsibility for carrying out such acquisition to a program executive officer and a head of a science and technology reinvention laboratory from the same military department, who shall co-lead such acquisition; and

"(2) ensure that the program executive officer and the head of a science and technology reinvention laboratory assigned as co-leads under paragraph (1) have similar existing requirements and funding for transitioning technologies to acquisition programs within the area of focus for such acquisition.

"(c) Sunset.—Subsection (a) shall expire on September 30, 2027.

"(d) Definitions.—In this section:

"(1) The terms 'military department' and 'services acquisition executive' have the meanings given such terms in section 101(a) of title 10, United States Code.

"(2) The term 'program executive officer' has the meaning given such term in section 1737(a) of title 10, United States Code.

"(3) The term 'science and technology reinvention laboratory' means a science and technology reinvention laboratory designated under section 4121(b) of title 10, United States Code."

Data Collection

Pub. L. 117–81, div. A, title VIII, §803(a)(3), Dec. 27, 2021, 135 Stat. 1815, provided that:

"(A) In general.—The Secretary of Defense and each Secretary of a military department shall collect and analyze data on the use of the authority under section 2380c of title 10, United States Code [now 10 U.S.C. 3458], as added by paragraph (1), for the purposes of—

"(i) developing and sharing best practices for achieving the objectives of the authority;

"(ii) gathering information on the implementation of the authority and related policy issues; and

"(iii) informing the congressional defense committees on the use of the authority.

"(B) Plan required.—The authority under section 2380c [now 3458] of title 10, United States Code, as added by paragraph (1), may not be exercised by the Secretary of Defense or any Secretary of a military department during the period beginning on October 1, 2022, and ending on the date on which the Secretary of Defense submits to the congressional defense committees a completed plan for carrying out the data collection required under paragraph (1).

"(C) Congressional defense committees; military department defined.—In this paragraph, the terms 'congressional defense committees' and 'military department' have the meanings given such terms in section 101(a) of title 10, United States Code."

References; Savings Provision; Rule of Construction

Pub. L. 117–81, div. A, title VIII, §803(b)(5), Dec. 27, 2021, 135 Stat. 1816, provided that: "Sections 1883 through 1885 of the William M. (Mac) Thornberry National Defense Authorization Act for Fiscal Year 2021 (Public Law 116–283) [set out as notes preceding section 3001 of this title] shall apply with respect to the transfers, redesignations, and amendments made under this subsection [amending this section and repealing provisions set out as a note under section 2302 of this title] as if such transfers, redesignations, and amendments were made under title XVIII of such Act."

CHAPTER 249—MULTIYEAR CONTRACTS

        

Editorial Notes

Prior Provisions

A prior chapter 249 "MULTIYEAR CONTRACTS", as added by Pub. L. 115–232, div. A, title VIII, §801(a), Aug. 13, 2018, 132 Stat. 1827, and consisting of reserved section 3501, was repealed by Pub. L. 116–283, div. A, title XVIII, §1822(a), Jan. 1, 2021, 134 Stat. 4196.

SUBCHAPTER I—MULTIYEAR CONTRACTS FOR ACQUISITION OF PROPERTY

        

Editorial Notes

Amendments

2021—Pub. L. 117–81, div. A, title XVII, §1701(k)(1)(A), Dec. 27, 2021, 135 Stat. 2143, amended Pub. L. 116–283, div. A, title XVIII, §1822(a), Jan. 1, 2021, 134 Stat. 4196, which added this analysis, by adding item 3501 and striking out what would have been items 3501 to 3511.

§3501. Multiyear contracts: acquisition of property

(a) In General.—To the extent that funds are otherwise available for obligation, the head of an agency may enter into multiyear contracts for the purchase of property whenever the head of that agency finds each of the following:

(1) That the use of such a contract will result in—

(A) significant savings of the total anticipated costs of carrying out the program through annual contracts; or

(B) necessary defense industrial base stability not otherwise achievable through annual contracts.

(2) That the minimum need for the property to be purchased is expected to remain substantially unchanged during the contemplated contract period in terms of production rate, procurement rate, and total quantities.

(3) That there is a reasonable expectation that throughout the contemplated contract period the head of the agency will request funding for the contract at the level required to avoid contract cancellation.

(4) That there is a stable design for the property to be acquired and that the technical risks associated with such property are not excessive.

(5) That the estimates of both the cost of the contract and the anticipated cost avoidance through the use of a multiyear contract are realistic.

(6) In the case of a purchase by the Department of Defense, that the use of such a contract will promote the national security of the United States.

(7) In the case of a contract in an amount equal to or greater than $500,000,000, that the conditions required by subparagraphs (C) through (F) of subsection (i)(3) will be met, in accordance with the Secretary's certification and determination under such subsection, by such contract.

(b) Regulations.—(1) Each official named in paragraph (2) shall prescribe acquisition regulations for the agency or agencies under the jurisdiction of such official to promote the use of multiyear contracting as authorized by subsection (a) in a manner that will allow the most efficient use of multiyear contracting.

(2)(A) The Secretary of Defense shall prescribe the regulations applicable to the Department of Defense.

(B) The Secretary of Homeland Security shall prescribe the regulations applicable to the Coast Guard, except that the regulations prescribed by the Secretary of Defense shall apply to the Coast Guard when it is operating as a service in the Navy.

(C) The Administrator of the National Aeronautics and Space Administration shall prescribe the regulations applicable to the National Aeronautics and Space Administration.

(c) Contract Cancellations.—The regulations may provide for cancellation provisions in multiyear contracts to the extent that such provisions are necessary and in the best interests of the United States. The cancellation provisions may include consideration of both recurring and nonrecurring costs of the contractor associated with the production of the items to be delivered under the contract.

(d) Participation by Subcontractors, Vendors, and Suppliers.—In order to broaden the defense industrial base, the regulations shall provide that, to the extent practicable—

(1) multiyear contracting under subsection (a) shall be used in such a manner as to seek, retain, and promote the use under such contracts of companies that are subcontractors, vendors, or suppliers; and

(2) upon accrual of any payment or other benefit under such a multiyear contract to any subcontractor, vendor, or supplier company participating in such contract, such payment or benefit shall be delivered to such company in the most expeditious manner practicable.

(e) Protection of Existing Authority.—The regulations shall provide that, to the extent practicable, the administration of this section, and of the regulations prescribed under this section, shall not be carried out in a manner to preclude or curtail the existing ability of an agency—

(1) to provide for competition in the production of items to be delivered under such a contract; or

(2) to provide for termination of a prime contract the performance of which is deficient with respect to cost, quality, or schedule.

(f) Cancellation or Termination for Insufficient Funding.—In the event funds are not made available for the continuation of a contract made under this section into a subsequent fiscal year, the contract shall be canceled or terminated. The costs of cancellation or termination may be paid from—

(1) appropriations originally available for the performance of the contract concerned;

(2) appropriations currently available for procurement of the type of property concerned, and not otherwise obligated; or

(3) funds appropriated for those payments.

(g) Contract Cancellation Ceilings Exceeding $100,000,000.—(1) Before any contract described in subsection (a) that contains a clause setting forth a cancellation ceiling in excess of $100,000,000 may be awarded, the head of the agency concerned shall give written notification of the proposed contract and of the proposed cancellation ceiling for that contract to the congressional defense committees, and such contract may not then be awarded until the end of a period of 30 days beginning on the date of such notification.

(2) In the case of a contract described in subsection (a) with a cancellation ceiling described in paragraph (1), if the budget for the contract does not include proposed funding for the costs of contract cancellation up to the cancellation ceiling established in the contract, the head of the agency concerned shall, as part of the certification required by subsection (i)(1)(A),¹ give written notification to the congressional defense committees of—

(A) the cancellation ceiling amounts planned for each program year in the proposed multiyear procurement contract, together with the reasons for the amounts planned;

(B) the extent to which costs of contract cancellation are not included in the budget for the contract; and

(C) a financial risk assessment of not including budgeting for costs of contract cancellation.

(h) Defense Acquisitions of Weapon Systems.—In the case of the Department of Defense, the authority under subsection (a) includes authority to enter into the following multiyear contracts in accordance with this section:

(1) A multiyear contract for the purchase of a weapon system, items and services associated with a weapon system, and logistics support for a weapon system.

(2) A multiyear contract for advance procurement of components, parts, and materials necessary to the manufacture of a weapon system, including a multiyear contract for such advance procurement that is entered into in order to achieve economic-lot purchases and more efficient production rates.

(i) Defense Acquisitions Specifically Authorized by Law.—(1) In the case of the Department of Defense, a multiyear contract in an amount equal to or greater than $500,000,000 may not be entered into under this section unless the contract is specifically authorized by law in an Act other than an appropriations Act.

(2) In submitting a request for a specific authorization by law to carry out a defense acquisition program using multiyear contract authority under this section, the Secretary of Defense shall include in the request a report containing preliminary findings of the agency head required in paragraphs (1) through (6) of subsection (a), together with the basis for such findings.

(3) A multiyear contract may not be entered into under this section for a defense acquisition program that has been specifically authorized by law to be carried out using multiyear contract authority unless the Secretary of Defense certifies in writing, not later than 30 days before entry into the contract, that each of the following conditions is satisfied:

(A) The Secretary has determined that each of the requirements in paragraphs (1) through (6) of subsection (a) will be met by such contract and has provided the basis for such determination to the congressional defense committees.

(B) The Secretary's determination under subparagraph (A) was made after completion of a cost analysis conducted on the basis of section 3226(b) of this title, and the analysis supports the determination.

(C) The system being acquired pursuant to such contract has not been determined to have experienced cost growth in excess of the critical cost growth threshold pursuant to section 4374 of this title within 5 years prior to the date the Secretary anticipates such contract (or a contract for advance procurement entered into consistent with the authorization for such contract) will be awarded.

(D) A sufficient number of end items of the system being acquired under such contract have been delivered at or within the most current estimates of the program acquisition unit cost or procurement unit cost for such system to determine that current estimates of such unit costs are realistic.

(E) During the fiscal year in which such contract is to be awarded, sufficient funds will be available to perform the contract in such fiscal year, and the future-years defense program for such fiscal year will include the funding required to execute the program without cancellation.

(F) The contract is a fixed price type contract.

(G) The proposed multiyear contract provides for production at not less than minimum economic rates given the existing tooling and facilities.

(4) If for any fiscal year a multiyear contract to be entered into under this section is authorized by law for a particular procurement program and that authorization is subject to certain conditions established by law (including a condition as to cost savings to be achieved under the multiyear contract in comparison to specified other contracts) and if it appears (after negotiations with contractors) that such savings cannot be achieved, but that significant savings could nevertheless be achieved through the use of a multiyear contract rather than specified other contracts, the President may submit to Congress a request for relief from the specified cost savings that must be achieved through multiyear contracting for that program. Any such request by the President shall include details about the request for a multiyear contract, including details about the negotiated contract terms and conditions.

(5)(A) The Secretary may obligate funds for procurement of an end item under a multiyear contract for the purchase of property only for procurement of a complete and usable end item.

(B) The Secretary may obligate funds appropriated for any fiscal year for advance procurement under a contract for the purchase of property only for the procurement of those long-lead items necessary in order to meet a planned delivery schedule for complete major end items that are programmed under the contract to be acquired with funds appropriated for a subsequent fiscal year (including an economic order quantity of such long-lead items when authorized by law).

(6) The Secretary may make the certification under paragraph (3) notwithstanding the fact that one or more of the conditions of such certification are not met, if the Secretary determines that, due to exceptional circumstances, proceeding with a multiyear contract under this section is in the best interest of the Department of Defense and the Secretary provides the basis for such determination with the certification.

(7) The Secretary may not delegate the authority to make the certification under paragraph (3) or the determination under paragraph (6) to an official below the level of Under Secretary of Defense for Acquisition and Sustainment.

(j) Defense Contract Options for Varying Quantities.—The Secretary of Defense may instruct the Secretary of the military department concerned to incorporate into a proposed multiyear contract negotiated priced options for varying the quantities of end items to be procured over the period of the contract.

(k) Multiyear Contract Defined.—For the purposes of this section, a multiyear contract is a contract for the purchase of property for more than one, but not more than five, program years. Such a contract may provide that performance under the contract during the second and subsequent years of the contract is contingent upon the appropriation of funds and (if it does so provide) may provide for a cancellation payment to be made to the contractor if such appropriations are not made.

(l) Various Additional Requirements With Respect to Multiyear Defense Contracts.—(1)(A) The head of an agency may not initiate a contract described in subparagraph (B) unless the congressional defense committees are notified of the proposed contract at least 30 days in advance of the award of the proposed contract.

(B) Subparagraph (A) applies to the following contracts:

(i) A multiyear contract—

(I) that employs economic order quantity procurement in excess of $20,000,000 in any one year of the contract; or

(II) that includes an unfunded contingent liability in excess of $20,000,000.

(ii) Any contract for advance procurement leading to a multiyear contract that employs economic order quantity procurement in excess of $20,000,000 in any one year.

(2) The head of an agency may not initiate a multiyear contract for which the economic order quantity advance procurement is not funded at least to the limits of the Government's liability.

(3) The head of an agency may not initiate a multiyear procurement contract for any system (or component thereof) if the value of the multiyear contract would exceed $500,000,000 unless authority for the contract is specifically provided in an appropriations Act.

(4) Each report required by paragraph (5) with respect to a contract (or contract extension) shall contain the following:

(A) The amount of total obligational authority under the contract (or contract extension) and the percentage that such amount represents of—

(i) the applicable procurement account; and

(ii) the agency procurement total.

(B) The amount of total obligational authority under all multiyear procurements of the agency concerned (determined without regard to the amount of the multiyear contract (or contract extension)) under multiyear contracts in effect at the time the report is submitted and the percentage that such amount represents of—

(i) the applicable procurement account; and

(ii) the agency procurement total.

(C) The amount equal to the sum of the amounts under subparagraphs (A) and (B), and the percentage that such amount represents of—

(i) the applicable procurement account; and

(ii) the agency procurement total.

(D) The amount of total obligational authority under all Department of Defense multiyear procurements (determined without regard to the amount of the multiyear contract (or contract extension)), including any multiyear contract (or contract extension) that has been authorized by the Congress but not yet entered into, and the percentage that such amount represents of the procurement accounts of the Department of Defense treated in the aggregate.

(5) The head of an agency may not enter into a multiyear contract (or extend an existing multiyear contract), the value of which would exceed $500,000,000 (when entered into or when extended, as the case may be), until the Secretary of Defense submits to the congressional defense committees a report containing the information described in paragraph (4) with respect to the contract (or contract extension).

(6) The head of an agency may not terminate a multiyear procurement contract until 10 days after the date on which notice of the proposed termination is provided to the congressional defense committees.

(7) The execution of multiyear contracting authority shall require the use of a present value analysis to determine lowest cost compared to an annual procurement.

(8) This subsection does not apply to the National Aeronautics and Space Administration or to the Coast Guard.

(9) In this subsection:

(A) The term "applicable procurement account" means, with respect to a multiyear procurement contract (or contract extension), the appropriation account from which payments to execute the contract will be made.

(B) The term "agency procurement total" means the procurement accounts of the agency entering into a multiyear procurement contract (or contract extension) treated in the aggregate.

(m) Increased Funding and Reprogramming Requests.—Any request for increased funding for the procurement of a major system under a multiyear contract authorized under this section shall be accompanied by an explanation of how the request for increased funding affects the determinations made by the Secretary under subsection (i).

(Added and amended Pub. L. 116–283, div. A, title XVIII, §§1822(a), 1883(b)(2), Jan. 1, 2021, 134 Stat. 4197, 4294; Pub. L. 116–283, div. A, title XVIII, §1822(b), as added Pub. L. 117–81, div. A, title XVII, §1701(k)(2)(B), Dec. 27, 2021, 135 Stat. 2143; Pub. L. 117–81, div. A, title XVII, §1701(k)(1)(B), (2)(A), Dec. 27, 2021, 135 Stat. 2143; Pub. L. 117–263, div. A, title VIII, §815, Dec. 23, 2022, 136 Stat. 2707; Pub. L. 118–31, div. A, title VIII, §820, Dec. 22, 2023, 137 Stat. 326.)

Editorial Notes

References in Text

Subsection (i)(1)(A), referred to in subsec. (g)(2), related to certification of full funding of support costs in multiyear contracts, prior to the general amendment of subsec. (i) by Pub. L. 113–291, div. A, title VIII, §816(a), Dec. 19, 2014, 128 Stat. 3430. As amended, subsec. (i) no longer contains a par. (1)(A).

Codification

Pub. L. 116–283, §1822(b)–(l), which had initially directed the transfers of various subsections of section 2306b of this title to sections 3501 to 3511, was amended by Pub. L. 117–81, §1701(k)(2), by striking out subsecs. (b) to (l) and adding a new subsec. (b). After that amendment, such transfers were no longer directed. Instead, Pub. L. 116–283, §1822(b), as added by Pub. L. 117–81, directed the transfer of section 2306b of this title in its entirety to this section, thereby omitting what would have been sections 3502 to 3511 of this title. The transfer of section 2306b to this section was executed by transferring the text only of section 2306b, as the section designation and catchline had already been enacted by Pub. L. 116–283, §1822(a), as amended by Pub. L. 117–81, §1701(k)(1)(B).

The text of section 2306b of this title, which was transferred to this section by Pub. L. 116–283, §1822(b), as amended by Pub. L. 117–81, §1701(k)(2)(B), was based on Pub. L. 103–355, title I, §1022(a)(1), Oct. 13, 1994, 108 Stat. 3257; Pub. L. 104–106, div. A, title XV, §1502(a)(10), div. E, title LVI, §5601(b), Feb. 10, 1996, 110 Stat. 503, 699; Pub. L. 105–85, div. A, title VIII, §806(a)(1), (b)(1), (c), title X, §1073(a)(47), (48)(A), Nov. 18, 1997, 111 Stat. 1834, 1835, 1903; Pub. L. 106–65, div. A, title VIII, §809, title X, §1067(1), Oct. 5, 1999, 113 Stat. 705, 774; Pub. L. 106–398, §1 [[div. A], title VIII, §§802(c), 806], Oct. 30, 2000, 114 Stat. 1654, 1654A-205, 1654A-207; Pub. L. 107–296, title XVII, §1704(b)(1), Nov. 25, 2002, 116 Stat. 2314; Pub. L. 107–314, div. A, title VIII, §820(a), Dec. 2, 2002, 116 Stat. 2613; Pub. L. 108–136, div. A, title X, §1043(b)(10), Nov. 24, 2003, 117 Stat. 1611; Pub. L. 108–375, div. A, title VIII, §814(a), title X, §1084(b)(2), Oct. 28, 2004, 118 Stat. 2014, 2060; Pub. L. 110–181, div. A, title VIII, §811(a), Jan. 28, 2008, 122 Stat. 217; Pub. L. 111–23, title I, §101(d)(2), May 22, 2009, 123 Stat. 1709; Pub. L. 113–291, div. A, title VIII, §816(a), (b), Dec. 19, 2014, 128 Stat. 3430, 3432; Pub. L. 114–92, div. A, title VIII, §811, Nov. 25, 2015, 129 Stat. 891; Pub. L. 115–91, div. A, title X, §1051(a)(14), Dec. 12, 2017, 131 Stat. 1561; Pub. L. 115–232, div. A, title VIII, §817, Aug. 13, 2018, 132 Stat. 1852; Pub. L. 116–92, div. A, title IX, §902(48), Dec. 20, 2019, 133 Stat. 1548.

Prior Provisions

Prior sections 3501 and 3502 were repealed by Pub. L. 103–337, div. A, title XVI, §§1662(f)(2), 1691, Oct. 5, 1994, 108 Stat. 2994, 3026, effective Dec. 1, 1994.

Section 3501, acts Aug. 10, 1956, ch. 1041, 70A Stat. 199; Sept. 29, 1988, Pub. L. 100–456, div. A, title XII, §1234(a)(1), 102 Stat. 2059, related to period of service and apportionment of members and units of Army National Guard called into Federal service. See section 12407 of this title.

Section 3502, act Aug. 10, 1956, ch. 1041, 70A Stat. 200, related to physical examinations of members of Army National Guard called into Federal service. See section 12408 of this title.

A prior section 3503 was renumbered section 7203 of this title.

Prior sections 3504, 3531, and 3532 were repealed by Pub. L. 96–513, title II, §§210, 233(a), 234, title VII, §701, Dec. 12, 1980, 94 Stat. 2884, 2887, 2955, effective Sept. 15, 1981.

Section 3504, acts Aug. 10, 1956, ch. 1041, 70A Stat. 200; Sept. 2, 1958, Pub. L. 85–861, §1(83), 72 Stat. 1481, authorized the President to order any retired member of the Regular Army to active duty.

Amendments

2023—Subsec. (a)(1). Pub. L. 118–31 inserted dash after "will result in" and subpar. (A) designation before "significant savings", substituted "; or" for period at end, and added subpar. (B).

2022—Subsec. (i)(2). Pub. L. 117–263 substituted "shall include in the request a report" for "shall include in the request the following:

"(A) A report" and struck out subpar. (B) which read as follows: "Confirmation that the preliminary findings of the agency head under subparagraph (A) were supported by a preliminary cost analysis performed by the Director of Cost Assessment and Program Evaluation."

2021—Pub. L. 117–81, §1701(k)(1)(B), amended Pub. L. 116–283, §1822(a), which enacted this section, by substituting "Multiyear contracts: acquisition of property" for "Multiyear contracts for acquisition of property: authority; definitions" in section catchline.

Pub. L. 116–283, §1822(b), as added by Pub. L. 117–81, §1701(k)(2)(B), transferred text of section 2306b of this title to this section. See Codification note above.

Subsec. (i)(3)(B). Pub. L. 116–283, §1883(b)(2), substituted "section 3226(b)" for "section 2334(e)(2)".

Subsec. (i)(3)(C). Pub. L. 116–283, §1883(b)(2), substituted "section 4374" for "section 2433(d)".

Statutory Notes and Related Subsidiaries

Effective Date of 2021 Amendment

Amendment by Pub. L. 117–81 applicable as if included in the enactment of title XVIII of Pub. L. 116–283 as enacted, see section 1701(a)(2) of Pub. L. 117–81, set out in a note preceding section 3001 of this title and Effective Date note below.

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.

Multiple Program Multiyear Contract Pilot Demonstration Program

Pub. L. 114–328, div. A, title VIII, §853, Dec. 23, 2016, 130 Stat. 2296, provided that:

"(a) Authority.—The Secretary of Defense may conduct a multiyear contract, over a period of up to four years, for the purchase of units for multiple defense programs that are produced at common facilities at a high rate, and which maximize commonality, efficiencies, and quality, in order to provide maximum benefit to the Department of Defense. Contracts awarded under this section should allow for significant savings, as determined consistent with the authority under section 2306b of title 10, United States Code [see 10 U.S.C. 3501], to be achieved as compared to using separate annual contracts under individual programs to purchase such units, and may include flexible delivery across the overall period of performance.

"(b) Scope.—The contracts authorized in subsection (a) shall at a minimum provide for the acquisition of units from three discrete programs from two of the military departments.

"(c) Documentation.—Each contract awarded under subsection (a) shall include the documentation required to be provided for a multiyear contract proposal under section 2306b(i) of title 10 [see 10 U.S.C. 3501(i)].

"(d) Definitions.—In this section:

"(1) The term 'high rate' means total annual production across the multiple defense programs of more than 200 end-items per year.

"(2) The term 'common facilities' means production facilities operating within the same general and allowable rate structure.

"(e) Sunset.—No new contracts may be awarded under the authority of this section after September 30, 2021."

Multiyear Procurement Contracts

Pub. L. 105–56, title VIII, §8008, Oct. 8, 1997, 111 Stat. 1221, provided that:

"(a) None of the funds provided in this Act [see Tables for classification] shall be available to initiate: (1) a multiyear contract that employs economic order quantity procurement in excess of $20,000,000 in any one year of the contract or that includes an unfunded contingent liability in excess of $20,000,000; or (2) a contract for advance procurement leading to a multiyear contract that employs economic order quantity procurement in excess of $20,000,000 in any one year, unless the congressional defense committees [Committee on Armed Services and Subcommittee on National Security of the Committee on Appropriations of the House of Representatives and Committee on Armed Services and Subcommittee on Defense of the Committee on Appropriations of the Senate] have been notified at least 30 days in advance of the proposed contract award: Provided, That no part of any appropriation contained in this Act shall be available to initiate a multiyear contract for which the economic order quantity advance procurement is not funded at least to the limits of the Government's liability: Provided further, That no part of any appropriation contained in this Act shall be available to initiate multiyear procurement contracts for any systems or component thereof if the value of the multiyear contract would exceed $500,000,000 unless specifically provided in this Act: Provided further, That no multiyear procurement contract can be terminated without 10-day prior notification to the congressional defense committees: Provided further, That the execution of multiyear authority shall require the use of a present value analysis to determine lowest cost compared to an annual procurement.

"Funds appropriated in title III of this Act [111 Stat. 1211] may be used for multiyear procurement contracts as follows:

"Apache Longbow radar;

"AV–8B aircraft; and

"Family of Medium Tactical Vehicles.

"(b) None of the funds provided in this Act and hereafter may be used to submit to Congress (or to any committee of Congress) a request for authority to enter into a contract covered by those provisions of subsection (a) that precede the first proviso of that subsection unless—

"(1) such request is made as part of the submission of the President's Budget for the United States Government for any fiscal year and is set forth in the Appendix to that budget as part of proposed legislative language for appropriations bills for the next fiscal year; or

"(2) such request is formally submitted by the President as a budget amendment; or

"(3) the Secretary of Defense makes such request in writing to the congressional defense committees."

Similar provisions were contained in the following appropriation acts:

Pub. L. 118–47, div. A, title VIII, §8010, Mar. 23, 2024, 138 Stat. 483.

Pub. L. 117–328, div. C, title VIII, §8010, Dec. 29, 2022, 136 Stat. 4587.

Pub. L. 117–103, div. C, title VIII, §8010, Mar. 15, 2022, 136 Stat. 175.

Pub. L. 116–260, div. C, title VIII, §8010, Dec. 27, 2020, 134 Stat. 1304.

Pub. L. 116–93, div. A, title VIII, §8010, Dec. 20, 2019, 133 Stat. 2337.

Pub. L. 115–245, div. A, title VIII, §8010, Sept. 28, 2018, 132 Stat. 3000.

Pub. L. 115–141, div. C, title VIII, §8010, Mar. 23, 2018, 132 Stat. 464.

Pub. L. 115–31, div. C, title VIII, §8010, May 5, 2017, 131 Stat. 247.

Pub. L. 114–113, div. C, title VIII, §8010, Dec. 18, 2015, 129 Stat. 2352.

Pub. L. 113–235, div. C, title VIII, §8010, Dec. 16, 2014, 128 Stat. 2253.

Pub. L. 113–76, div. C, title VIII, §8010, Jan. 17, 2014, 128 Stat. 105.

Pub. L. 113–6, div. C, title VIII, §8010, Mar. 26, 2013, 127 Stat. 297.

Pub. L. 112–74, div. A, title VIII, §8010, Dec. 23, 2011, 125 Stat. 806.

Pub. L. 112–10, div. A, title VIII, §8010, Apr. 15, 2011, 125 Stat. 57.

Pub. L. 111–118, div. A, title VIII, §8011, Dec. 19, 2009, 123 Stat. 3428, as amended by Pub. L. 111–212, title I, §305, July 29, 2010, 124 Stat. 2311.

Pub. L. 110–329, div. C, title VIII, §8011, Sept. 30, 2008, 122 Stat. 3621.

Pub. L. 110–116, div. A, title VIII, §8010, Nov. 13, 2007, 121 Stat. 1315.

Pub. L. 109–289, div. A, title VIII, §8008, Sept. 29, 2006, 120 Stat. 1273.

Pub. L. 109–148, div. A, title VIII, §8008, Dec. 30, 2005, 119 Stat. 2698.

Pub. L. 108–287, title VIII, §8008, Aug. 5, 2004, 118 Stat. 970.

Pub. L. 108–87, title VIII, §8008, Sept. 30, 2003, 117 Stat. 1072.

Pub. L. 107–248, title VIII, §8008, Oct. 23, 2002, 116 Stat. 1537.

Pub. L. 107–117, div. A, title VIII, §8008, Jan. 10, 2002, 115 Stat. 2248.

Pub. L. 106–259, title VIII, §8008, Aug. 9, 2000, 114 Stat. 675.

Pub. L. 106–79, title VIII, §8008, Oct. 25, 1999, 113 Stat. 1232.

Pub. L. 105–262, title VIII, §8008, Oct. 17, 1998, 112 Stat. 2298.

Pub. L. 104–208, div. A, title I, §101(b) [title VIII, §8009], Sept. 30, 1996, 110 Stat. 3009–71, 3009-89.

Pub. L. 104–61, title VIII, §8010, Dec. 1, 1995, 109 Stat. 653.

Pub. L. 103–335, title VIII, §8010, Sept. 30, 1994, 108 Stat. 2618.

Pub. L. 103–139, title VIII, §8011, Nov. 11, 1993, 107 Stat. 1439.

Pub. L. 102–396, title IX, §9013, Oct. 6, 1992, 106 Stat. 1903.

Pub. L. 102–172, title VIII, §8013, Nov. 26, 1991, 105 Stat. 1173.

Pub. L. 101–511, title VIII, §8014, Nov. 5, 1990, 104 Stat. 1877.

Pub. L. 101–165, title IX, §9021, Nov. 21, 1989, 103 Stat. 1133.

¹ See References in Text note below.

[§§3502 to 3511. Omitted]

Editorial Notes

Codification

See Codification note set out under section 3501 of this title.

SUBCHAPTER II—MULTIYEAR CONTRACTS FOR ACQUISITION OF SERVICES

        

Editorial Notes

Amendments

2021—Pub. L. 117–81, div. A, title XVII, §1701(k)(3)(A)(i), (B), Dec. 27, 2021, 135 Stat. 2143, amended Pub. L. 116–283, div. A, title XVIII, §1822(c), formerly §1822(m), Jan. 1, 2021, 134 Stat. 4203, which added this analysis, by making the redesignation of section 1822(m) as 1822(c) and by adding item 3531 and striking out what would have been items 3531 to 3535.

§3531. Multiyear contracts: acquisition of services

(a) Authority.—Subject to subsections (d) and (e), the head of an agency may enter into contracts for periods of not more than five years for services described in subsection (b), and for items of supply related to such services, for which funds would otherwise be available for obligation only within the fiscal year for which appropriated whenever the head of the agency finds that—

(1) there will be a continuing requirement for the services consonant with current plans for the proposed contract period;

(2) the furnishing of such services will require a substantial initial investment in plant or equipment, or the incurrence of substantial contingent liabilities for the assembly, training, or transportation of a specialized work force; and

(3) the use of such a contract will promote the best interests of the United States by encouraging effective competition and promoting economies in operation.

(b) Covered Services.—The authority under subsection (a) applies to the following types of services:

(1) Operation, maintenance, and support of facilities and installations.

(2) Maintenance or modification of aircraft, ships, vehicles, and other highly complex military equipment.

(3) Specialized training necessitating high quality instructor skills (for example, pilot and air crew members; foreign language training).

(4) Base services (for example, ground maintenance; in-plane refueling; bus transportation; refuse collection and disposal).

(5) Environmental remediation services for—

(A) an active military installation;

(B) a military installation being closed or realigned under a base closure law; or

(C) a site formerly used by the Department of Defense.

(c) Applicable Principles.—In entering into multiyear contracts for services under the authority of this section, the head of the agency shall be guided by the following principles:

(1) The portion of the cost of any plant or equipment amortized as a cost of contract performance should not exceed the ratio between the period of contract performance and the anticipated useful commercial life of such plant or equipment. Useful commercial life, for this purpose, means the commercial utility of the facilities rather than the physical life thereof, with due consideration given to such factors as location of facilities, specialized nature thereof, and obsolescence.

(2) Consideration shall be given to the desirability of obtaining an option to renew the contract for a reasonable period not to exceed three years, at prices not to include charges for plant, equipment and other nonrecurring costs, already amortized.

(3) Consideration shall be given to the desirability of reserving in the agency the right, upon payment of the unamortized portion of the cost of the plant or equipment, to take title thereto under appropriate circumstances.

(d) Restrictions Applicable Generally.—(1) The head of an agency may not initiate under this section a contract for services that includes an unfunded contingent liability in excess of $20,000,000 unless the congressional defense committees are notified of the proposed contract at least 30 days in advance of the award of the proposed contract.

(2) The head of an agency may not initiate a multiyear contract for services under this section if the value of the multiyear contract would exceed $500,000,000 unless authority for the contract is specifically provided by law.

(3) The head of an agency may not terminate a multiyear procurement contract for services until 10 days after the date on which notice of the proposed termination is provided to the congressional defense committees.

(4) Before any contract described in subsection (a) that contains a clause setting forth a cancellation ceiling in excess of $100,000,000 may be awarded, the head of the agency concerned shall give written notification of the proposed contract and of the proposed cancellation ceiling for that contract to the congressional defense committees, and such contract may not then be awarded until the end of a period of 30 days beginning on the date of such notification.

(5) In the case of a contract described in subsection (a) with a cancellation ceiling described in paragraph (4), if the budget for the contract does not include proposed funding for the costs of contract cancellation up to the cancellation ceiling established in the contract, the head of the agency concerned shall give written notification to the congressional defense committees of—

(A) the cancellation ceiling amounts planned for each program year in the proposed multiyear procurement contract, together with the reasons for the amounts planned;

(B) the extent to which costs of contract cancellation are not included in the budget for the contract; and

(C) a financial risk assessment of not including budgeting for costs of contract cancellation.

(e) Cancellation or Termination for Insufficient Funding After First Year.—In the event that funds are not made available for the continuation of a multiyear contract for services into a subsequent fiscal year, the contract shall be canceled or terminated, and the costs of cancellation or termination may be paid from—

(1) appropriations originally available for the performance of the contract concerned;

(2) appropriations currently available for procurement of the type of services concerned, and not otherwise obligated; or

(3) funds appropriated for those payments.

(f) Multiyear Contract Defined.—For the purposes of this section, a multiyear contract is a contract for the purchase of services for more than one, but not more than five, program years. Such a contract may provide that performance under the contract during the second and subsequent years of the contract is contingent upon the appropriation of funds and (if it does so provide) may provide for a cancellation payment to be made to the contractor if such appropriations are not made.

[(g) Repealed. Pub. L. 108–136, div. A, title VIII, §843(a), Nov. 24, 2003, 117 Stat. 1553.]

(h) Military Installation Defined.—In this section, the term "military installation" has the meaning given such term in section 2801(c)(4) of this title.

(Added Pub. L. 116–283, div. A, title XVIII, §1822(c), formerly §1822(m), Jan. 1, 2021, 134 Stat. 4203, as renumbered and amended Pub. L. 117–81, div. A, title XVII, §1701(k)(3)(A)(ii), (B), Dec. 27, 2021, 135 Stat. 2143; amended Pub. L. 116–283, div. A, title XVIII, §1822(d), as added Pub. L. 117–81, div. A, title XVII, §1701(k)(3)(D), Dec. 27, 2021, 135 Stat. 2143; Pub. L. 117–81, div. A, title XVII, §1701(k)(3)(C), Dec. 27, 2021, 135 Stat. 2143.)

Editorial Notes

Codification

Pub. L. 116–283, §1822(n)–(s), which had initially directed the transfers of various subsections of section 2306c of this title to sections 3531 to 3535, was struck out by Pub. L. 117–81, §1701(k)(3)(C). Instead, Pub. L. 116–283, §1822(d), as added by Pub. L. 117–81, §1701(k)(3)(D), directed the transfer of section 2306c of this title in its entirety to this section, thereby omitting what would have been sections 3532 to 3535 of this title. The transfer of section 2306c to this section was executed by transferring the text only of section 2306c, as the section designation and catchline had already been enacted by Pub. L. 116–283, §1822(c), formerly §1822(m), as renumbered and amended by Pub. L. 117–81, §1701(k)(3)(A)(ii), (B).

The text of section 2306c of this title, which was transferred to this section by Pub. L. 116–283, §1822(d), as added by Pub. L. 117–81, §1701(k)(3)(D), was based on Pub. L. 106–398, §1 [[div. A], title VIII, §802(a)(1)], Oct. 30, 2000, 114 Stat. 1654, 1654A-203; Pub. L. 107–314, div. A, title VIII, §§811(a), 827, Dec. 2, 2002, 116 Stat. 2608, 2617; Pub. L. 108–136, div. A, title VIII, §843(a), title X, §1043(c)(1), Nov. 24, 2003, 117 Stat. 1553, 1611; Pub. L. 108–375, div. A, title VIII, §814(b), Oct. 28, 2004, 118 Stat. 2014; Pub. L. 111–84, div. A, title X, §1073(a)(22), Oct. 28, 2009, 123 Stat. 2473.

Prior Provisions

Prior sections 3531 and 3532 were repealed by Pub. L. 96–513, title II, §§210, 233(a), 234, title VII, §701, Dec. 12, 1980, 94 Stat. 2884, 2887, 2955, effective Sept. 15, 1981.

Section 3531, act Aug. 10, 1956, ch. 1041, 70A Stat. 201, related to appointment of a general officer of the Army as the Chief of Staff to the President.

Section 3532, act Aug. 10, 1956, ch. 1041, 70A Stat. 201, provided that a colonel on the active list of the Regular Army who is detailed as special assistant to the Comptroller of the Department of Defense, has the grade of brigadier general while so serving, unless he is entitled to a higher grade.

Prior sections 3533 and 3534 were renumbered sections 7213 and 7214 of this title, respectively.

A prior section 3535, act Aug. 10, 1956, ch. 1041, 70A Stat. 201, provided that an officer assigned as Assistant to the Chief of Engineers in charge of civil works, including river and harbor and flood control improvements, be entitled to the rank, pay, and allowances of a brigadier general while so serving, prior to repeal by Pub. L. 96–513, title II, §235, title VII, §701, Dec. 12, 1980, 94 Stat. 2887, 2955, effective Sept. 15, 1981.

A prior section 3536 was renumbered section 7216 of this title.

Prior sections 3538 and 3539 were repealed by Pub. L. 90–235, §4(a)(2), (b)(1), Jan. 2, 1968, 81 Stat. 759, 760.

Section 3538, act Aug. 10, 1956, ch. 1041, 70A Stat. 202, provided for detail of officers of Ordinance Corps of the Army to serve with the Geological Survey.

Section 3539, act Aug. 10, 1956, ch. 1041, 70A Stat. 202, provided for detail of officers of Army Medical Service for duty with the Service to Armed Forces Division of American National Red Cross and for detail of an officer of Medical Corps of the Army to be in charge of first-aid department of American National Red Cross. See section 711a of this title.

A prior section 3540, act Aug. 10, 1956, ch. 1041, 70A Stat. 202, related to detail of members of regular or reserve components as professors and instructors in military science and tactics to educational institutions, prior to repeal by Pub. L. 88–647, title III, §301(7), Oct. 13, 1964, 78 Stat. 1071. See section 2111 of this title.

Prior sections 3541 and 3542 were repealed by Pub. L. 103–337, div. A, title XVI, §§1661(c)(2), 1662(g)(2), 1691, Oct. 5, 1994, 108 Stat. 2982, 2996, 3026, effective Dec. 1, 1994.

Section 3541, act Aug. 10, 1956, ch. 1041, 70A Stat. 202, authorized President to assign regular and reserve Army officers to National Guard Bureau. See section 10507 of this title.

Section 3542, act Aug. 10, 1956, ch. 1041, 70A Stat. 202, authorized President to detail certain officers as chief and assistant chief of staff of divisions of Army National Guard in Federal service. See section 12502(a) of this title.

A prior section 3543, act Aug. 10, 1956, ch. 1041, 70A Stat. 202, related to number of authorized aides, prior to repeal by Pub. L. 114–328, div. A, title V, §502(s)(1), Dec. 23, 2016, 130 Stat. 2104.

Prior sections 3544 and 3545 were repealed by Pub. L. 90–235, §4(a)(6), (b)(1), Jan. 2, 1968, 81 Stat. 759, 760.

Section 3544, act Aug. 10, 1956, ch. 1041, 70A Stat. 203, restricted performance of civil functions by commissioned officers of Regular Army. See section 973 of this title.

Section 3545, act Aug. 10, 1956, ch. 1041, 70A Stat. 203, provided that cooking for enlisted members of Army should be superintended by officers of organizations to which members belonged.

A prior section 3546, act Aug. 10, 1956, ch. 1041, 70A Stat. 203, required officers of the Medical Corps and contract surgeons to attend families of members of the Army, prior to repeal by Pub. L. 85–861, §36B(7), Sept. 2, 1958, 72 Stat. 1570.

Prior sections 3547 and 3548 were renumbered sections 7217 and 7218 of this title, respectively.

Amendments

2021—Pub. L. 117–81, §1701(k)(3)(A)(ii), (B), amended Pub. L. 116–283, §1822(c), formerly §1822(m), which enacted this section, by renumbering such section 1822(m) as 1822(c) and by substituting "Multiyear contracts: acquisition of services" for "Multiyear contracts for acquisition of services: authority; definitions" in section catchline.

Pub. L. 116–283, §1822(n), which had originally transferred subsecs. (a), (b), (f), and (h) of section 2306c of this title to this section, was repealed by Pub. L. 117–81, §1701(k)(3)(C).

Pub. L. 116–283, §1822(d), as added by Pub. L. 117–81, §1701(k)(3)(D), transferred text of section 2306c of this title to this section. See Codification note above.

Statutory Notes and Related Subsidiaries

Effective Date of 2021 Amendment

Amendment by Pub. L. 117–81 applicable as if included in the enactment of title XVIII of Pub. L. 116–283 as enacted, see section 1701(a)(2) of Pub. L. 117–81, set out in a note preceding section 3001 of this title and Effective Date note below.

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.

Pilot Program for Longer Term Multiyear Service Contracts

Pub. L. 115–91, div. A, title VIII, §854, Dec. 12, 2017, 131 Stat. 1492, provided that:

"(a) Establishment.—The Secretary of Defense shall carry out a pilot program under which the Secretary may use the authority under subsection (a) of section 2306c of title 10, United States Code [see 10 U.S.C. 3531], to enter into up to five contracts for periods of not more than 10 years for services described in subsection (b) of such section. Each contract entered into pursuant to this subsection may be extended for up to five additional one-year terms.

"(b) Study.—

"(1) In general.—Not later than 90 days after the date of the enactment of this Act [Dec. 12, 2017], the Secretary of Defense shall enter into an agreement with an independent organization with relevant expertise to study best practices and lessons learned from using services contracts for periods longer than five years by commercial companies, foreign governments, and State governments, as well as service contracts for periods longer than five years used by the Federal Government, such as energy savings performance contracts (as defined in section to section [sic] 804(3) of the National Energy Conservation Policy Act (42 U.S.C. 8287c(3)).

"(2) Report.—Not later than one year after the date of the enactment of this Act, the Secretary of Defense shall submit to the congressional defense committees [Committees on Armed Services and Appropriations of the Senate and the House of Representatives] a report on the study conducted under paragraph (1).

"(c) Comptroller General Report.—Not later than five years after the date of the enactment of this Act, the Comptroller General of the United States shall submit to the congressional defense committees a report on the pilot program carried out under this section."

[§§3532 to 3535. Omitted]

Editorial Notes

Codification

See Codification note set out under section 3531 of this title.

SUBCHAPTER III—OTHER AUTHORITIES RELATING TO MULTIYEAR CONTRACTS

        

Editorial Notes

Amendments

2021—Pub. L. 117–81, div. A, title XVII, §1701(k)(4), Dec. 27, 2021, 135 Stat. 2144, amended Pub. L. 116–283, div. A, title XVIII, §1822(e)(1), formerly §1822(t)(1), Jan. 1, 2021, 134 Stat. 4204, which added this analysis, by renumbering such section 1822(t)(1) as 1822(e)(1).

§3551. Multiyear procurement authority: purchase of dinitrogen tetroxide, hydrazine, and hydrazine-related products

(a) Ten-Year Contract Period.—The Secretary of Defense may enter into a contract for a period of up to 10 years for the purchase of dinitrogen tetroxide, hydrazine, and hydrazine-related products for the support of a United States national security program or a United States space program.

(b) Extensions.—A contract entered into for more than one year under the authority of subsection (a) may be extended for a total of not more than 10 years pursuant to any option or options set forth in the contract.

(Added Pub. L. 107–314, div. A, title VIII, §826(a), Dec. 2, 2002, 116 Stat. 2617, §2410o; renumbered §3551, Pub. L. 116–283, div. A, title XVIII, §1822(e)(2), formerly §1822(t)(2), Jan. 1, 2021, 134 Stat. 4205, renumbered Pub. L. 117–81, div. A, title XVII, §1701(k)(4), Dec. 27, 2021, 135 Stat. 2144.)

Editorial Notes

Amendments

2021—Pub. L. 116–283 renumbered section 2410o of this title as this section.

Statutory Notes and Related Subsidiaries

Effective Date of 2021 Amendment

Amendment by Pub. L. 117–81 applicable as if included in the enactment of title XVIII of Pub. L. 116–283 as enacted, see section 1701(a)(2) of Pub. L. 117–81, set out in a note preceding section 3001 of this title and note below.

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 a note preceding section 3001 of this title.

CHAPTER 251—SIMPLIFIED ACQUISITION PROCEDURES

        

Editorial Notes

Prior Provisions

A prior chapter 251 "SIMPLIFIED ACQUISITION PROCEDURES", consisting of reserved section 3551, was repealed by Pub. L. 116–283, div. A, title XVIII, §1823(a), Jan. 1, 2021, 134 Stat. 4205.

§3571. Simplified acquisition threshold

(a) Simplified Acquisition Threshold.—For purposes of acquisitions by agencies named in section 3063 of this title, the simplified acquisition threshold is as specified in section 134 of title 41.

(b) Inapplicable Laws.—No law properly listed in the Federal Acquisition Regulation pursuant to section 1905 of title 41 shall apply to or with respect to a contract or subcontract that is not greater than the simplified acquisition threshold.

(Added and amended Pub. L. 103–355, title IV, §§4002(a), 4102(a), Oct. 13, 1994, 108 Stat. 3338, 3340, §2302a; Pub. L. 111–350, §5(b)(9), Jan. 4, 2011, 124 Stat. 3843; renumbered §3571 and amended Pub. L. 116–283, div. A, title XVIII, §1823(b), (c)(1), Jan. 1, 2021, 134 Stat. 4205.)

Editorial Notes

Prior Provisions

A prior section 3571, act Aug. 10, 1956, ch. 1041, 70A Stat. 204; Pub. L. 85–861, §1(85), Sept. 2, 1958, 72 Stat. 1481; Pub. L. 86–559, §1(21), June 30, 1960, 74 Stat. 271, provided that commissioned officers of the Army on active duty in the same grade rank among themselves according to date of rank and specified procedures for determining date of rank, prior to repeal by Pub. L. 96–513, title II, §211, title VII, §701, Dec. 12, 1980, 94 Stat. 2885, 2955, effective Sept. 15, 1981. See section 741 of this title.

Amendments

2021—Pub. L. 116–283, §1823(b), renumbered section 2302a of this title as this section.

Subsec. (a). Pub. L. 116–283, §1823(c)(1), substituted "section 3063" for "section 2303".

2011—Subsec. (a). Pub. L. 111–350, §5(b)(9)(A), substituted "section 134 of title 41" for "section 4(11) of the Office of Federal Procurement Policy Act".

Subsec. (b). Pub. L. 111–350, §5(b)(9)(B), substituted "section 1905 of title 41" for "section 33 of the Office of Federal Procurement Policy Act".

1994—Subsec. (b). Pub. L. 103–355, §4102(a), added subsec. (b).

Statutory Notes and Related Subsidiaries

Effective Date of 2021 Amendment

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 a note preceding section 3001 of this title.

Effective Date

For effective date and applicability of section, see section 10001 of Pub. L. 103–355, set out as an Effective Date of 1994 Amendment note under section 8752 of this title.

§3572. Implementation of simplified acquisition procedures

The simplified acquisition procedures contained in the Federal Acquisition Regulation pursuant to section 1901 of title 41 shall apply as provided in such section to the agencies named in section 3063 of this title.

(Added Pub. L. 103–355, title IV, §4203(a)(1), Oct. 13, 1994, 108 Stat. 3345, §2302b; amended Pub. L. 111–350, §5(b)(10), Jan. 4, 2011, 124 Stat. 3843; renumbered §3572 and amended Pub. L. 116–283, div. A, title XVIII, §1823(b), (c)(2), Jan. 1, 2021, 134 Stat. 4205.)

Editorial Notes

Prior Provisions

A prior section 3572 was renumbered section 7222 of this title.

Amendments

2021—Pub. L. 116–283 renumbered section 2302b of this title as this section and substituted "section 3063" for "section 2303(a)".

2011—Pub. L. 111–350 substituted "section 1901 of title 41" for "section 31 of the Office of Federal Procurement Policy Act".

Statutory Notes and Related Subsidiaries

Effective Date of 2021 Amendment

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 a note preceding section 3001 of this title.

Effective Date

For effective date and applicability of section, see section 10001 of Pub. L. 103–355, set out as an Effective Date of 1994 Amendment note under section 8752 of this title.

§3573. Micro-purchase threshold

The micro-purchase threshold for the Department of Defense is $10,000.

(Added Pub. L. 114–328, div. A, title VIII, §821(a), Dec. 23, 2016, 130 Stat. 2276, §2338; amended Pub. L. 115–232, div. A, title VIII, §821(a), Aug. 13, 2018, 132 Stat. 1853; renumbered §3573, Pub. L. 116–283, div. A, title XVIII, §1823(b), Jan. 1, 2021, 134 Stat. 4205.)

Editorial Notes

Prior Provisions

Prior sections 3573 and 3574 were repealed by Pub. L. 96–513, title II, §211, title VII, §701, Dec. 12, 1980, 94 Stat. 2885, 2955, effective Sept. 15, 1981.

Section 3573, act Aug. 10, 1956, ch. 1041, 70A Stat. 204, specified the date of rank of an officer whose regular grade is brigadier general and the date of rank of an officer whose regular grade is major general and provided that the names of general officers of the Regular Army be carried on a seniority list in the order of seniority in both regular grade and date of rank. See section 741 of this title.

Section 3574, acts Aug. 10, 1956, ch. 1041, 70A Stat. 205; Sept. 2, 1958, Pub. L. 85–861, §§1(86), 33(a)(24), 72 Stat. 1481, 1565, provided for determination of rank of commissioned officers of the same grade in the Regular Army who are on the same promotion list, rank of commissioned officers of the same grade in the Regular Army who are not on the same promotion list or not on a promotion list, and rank among graduates of each class at the United States Military, Naval, or Air Force Academies who, upon graduation, are appointed to the Regular Army. See section 741 of this title.

A prior section 3575 was renumbered section 7225 of this title.

Prior sections 3576 and 3578 were repealed by Pub. L. 90–235, §5(a)(2), Jan. 2, 1968, 81 Stat. 761.

Section 3576, act Aug. 10, 1956, ch. 1041, 70A Stat. 205, provided for command when different commands of the Army and Marine Corps joined or served together. See section 747 of this title.

Section 3578, act Aug. 10, 1956, ch. 1041, 70A Stat. 205, provided for command when two or more commissioned officers of the Army in the same grade were on duty at the same place. See section 749 of this title.

A prior section 3579 was renumbered section 7229 of this title.

A prior section 3580, act Aug. 10, 1956, ch. 1041, 70A Stat. 206, provided that the Secretary of the Army prescribe the military authority that commissioned officers of the Women's Army Corps may exercise, prior to repeal by Pub. L. 95–485, title VIII, §820(f), Oct. 20, 1978, 92 Stat. 1627.

A prior section 3581 was renumbered section 7231 of this title.

A prior section 3582, act Aug. 10, 1956, ch. 1041, 70A Stat. 206, provided that a retired officer has no right to command except when on active duty, prior to repeal by Pub. L. 96–513, title II, §211, title VII, §701, Dec. 12, 1980, 94 Stat. 2885, 2955, effective Sept. 15, 1981. See section 750 of this title.

A prior section 3583 was renumbered section 7233 of this title.

Prior sections 3611 and 3612 were repealed by Pub. L. 90–235, §8(2), Jan. 2, 1968, 81 Stat. 764.

Section 3611, act Aug. 10, 1956, ch. 1041, 70A Stat. 206, provided that the President could prescribe the uniform of the Army.

Section 3612, act Aug. 10, 1956, ch. 1041, 70A Stat. 206, provided for disposition of uniforms of enlisted members of Army who were discharged and for disposition of uniforms of and issuance of civilian clothing to enlisted members of Army who were discharged otherwise than honorably.

A prior section 3631, act Aug. 10, 1956, ch. 1041, 70A Stat. 207, prohibited officers of the Quartermaster Corps of the Army and officers performing duties of officers of that branch from dealing in quartermaster supplies, prior to repeal by Pub. L. 90–235, §7(b)(1), Jan. 2, 1968, 81 Stat. 763.

Prior sections 3632 and 3633 were repealed by Pub. L. 87–649, §§14c(6), (7), 15, Sept. 7, 1962, 76 Stat. 501, 502, effective Nov. 1, 1962.

Section 3632, act Aug. 10, 1956, ch. 1041, 70A Stat. 207, provided for forfeiture of pay during absence from duty due to disease from intemperate use of alcohol or drugs. See section 802 of Title 37, Pay and Allowances of the Uniformed Services.

Section 3633, act Aug. 10, 1956, ch. 1041, 70A Stat. 207, provided for forfeiture of pay of commissioned officers when dropped from rolls. See section 803 of Title 37.

A prior section 3634, act Aug. 10, 1956, ch. 1041, 70A Stat. 207; Pub. L. 101–510, div. A, title III, §327(a), Nov. 5, 1990, 104 Stat. 1531, generally prohibited Army band from being paid for performance outside Army post, prior to repeal by Pub. L. 110–181, div. A, title V, §590(b)(1), Jan. 28, 2008, 122 Stat. 138. See section 974 of this title.

A prior section 3635, act Aug. 10, 1956, ch. 1041, 70A Stat. 207, set forth restrictions on civilian employment for enlisted members of Army on active duty, prior to repeal by Pub. L. 90–235, §6(a)(7), Jan. 2, 1968, 81 Stat. 762.

A prior section 3636, act Aug. 10, 1956, ch. 1041, 70A Stat. 208, provided that pay and allowances do not accrue to an enlisted member of Army who is in confinement under sentence of dishonorable discharge, while execution of sentence to discharge is suspended, prior to repeal by Pub. L. 87–649, §§14c(8), 15, Sept. 7, 1962, 76 Stat. 501, 502, effective Nov. 1, 1962. See section 858b of this title.

A prior section 3637, act Aug. 10, 1956, ch. 1041, 70A Stat. 208, provided that an enlisted member of the Army who deserted forfeited all right to a pension, prior to repeal by Pub. L. 90–235, §7(b)(1), Jan. 2, 1968, 81 Stat. 763.

A prior section 3638, act Aug. 10, 1956, ch. 1041, 70A Stat. 208, required enlisted members to make up time lost, prior to repeal by Pub. L. 85–861, §36B(8), Sept. 2, 1958, 72 Stat. 1570. See section 972(a) of this title.

A prior section 3639 was renumbered section 7239 of this title.

Amendments

2021—Pub. L. 116–283 renumbered section 2338 of this title as this section.

2018—Pub. L. 115–232 substituted "The micro-purchase threshold for the Department of Defense is $10,000" for "Notwithstanding subsection (a) of section 1902 of title 41, the micro-purchase threshold for the Department of Defense for purposes of such section is $5,000".

Statutory Notes and Related Subsidiaries

Effective Date of 2021 Amendment

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 a note preceding section 3001 of this title.

CHAPTER 253—RAPID ACQUISITION PROCEDURES

        

Editorial Notes

Prior Provisions

A prior chapter 253 "EMERGENCY AND RAPID ACQUISITIONS", as added by Pub. L. 115–232, div. A, title VIII, §801(a), Aug. 13, 2018, 132 Stat. 1828, and consisting of reserved section 3601, was repealed by Pub. L. 116–283, div. A, title XVIII, §1824(a), Jan. 1, 2021, 134 Stat. 4205.

Amendments

2024—Pub. L. 118–159, div. A, title VIII, §§804(a), 805(a), 861(a), Dec. 23, 2024, 138 Stat. 1966, 1969, 1999, added items 3602 to 3604. Amendments were made pursuant to operation of section 102 of this title.

2022—Pub. L. 117–263, div. A, title VIII, §804(a), Dec. 23, 2022, 136 Stat. 2696, amended chapter analysis generally, substituting "RAPID ACQUISITION PROCEDURES" for "[Reserved]" in heading and item 3601 for former items for subchapters I and II, which were both "[Reserved]".

2021—Pub. L. 117–81, div. A, title XVII, §1701(i)(5)(B)(i), Dec. 27, 2021, 135 Stat. 2141, amended Pub. L. 116–283, div. A, title XVIII, §1824(a), Jan. 1, 2021, 134 Stat. 4205, which added this analysis, by substituting "[Reserved]" for "RAPID ACQUISITION PROCEDURES" in chapter heading.

§3601. Procedures for urgent acquisition and deployment of capabilities needed in response to urgent operational needs or vital national security interest

(a) Procedures.—

(1) In general.—The Secretary of Defense shall prescribe procedures for the urgent acquisition and deployment of capabilities needed in response to urgent operational needs. The capabilities for which such procedures may be used in response to an urgent operational need are those—

(A) that, subject to such exceptions as the Secretary considers appropriate for purposes of this section—

(i) can be fielded within a period of two to 24 months;

(ii) do not require substantial development effort;

(iii) are based on technologies that are proven and available; and

(iv) can appropriately be acquired under fixed-price contracts;

(B) that can be developed or procured under a rapid acquisition pathway; or

(C) with respect to an armed attack by a country of concern (as defined in section 1(m) of the State Department Basic Authorities Act of 1956 (22 U.S.C. 2651a(m)), to which the United States is not a party, for purposes of—

(i) replenishing United States stockpiles of defense articles when such stockpiles are diminished as a result of the United States providing defense articles in response to such armed attack by a country of concern against—

(I) a United States ally (as that term is defined in section 201(d) of the Act of December 2, 1942, titled "To provide benefits for the injury, disability, death, or enemy detention of employees of contractors with the United States, and for other purposes" (56 Stat. 1028, chapter 668; 42 U.S.C. 1711(d))); or

(II) a United States partner; or

(ii) contracting for the movement or delivery of defense articles transferred to such ally or partner through the President's drawdown authorities under sections 506(a)(1) and 614 of the Foreign Assistance Act of 1961 (22 U.S.C. 2318(a)(1) and 2364) in connection with such response.

(2) Rapid acquisition pathway defined.—In this section, the term "rapid acquisition pathway" means the rapid prototyping or the rapid fielding acquisition pathway authorized under section 3602 of this title.

(b) Matters to Be Included.—The procedures prescribed under subsection (a) shall include the following:

(1) A process for streamlined communications between the Chairman of the Joint Chiefs of Staff, the acquisition community, and the research and development community, including—

(A) a process for the commanders of the combatant commands and the Chairman of the Joint Chiefs of Staff to communicate their needs to the acquisition community and the research and development community; and

(B) a process for the acquisition community and the research and development community to propose capabilities that meet the needs communicated by the combatant commands and the Chairman of the Joint Chiefs of Staff.

(2) Procedures for demonstrating, rapidly acquiring, and deploying a capability proposed pursuant to paragraph (1)(B), including—

(A) a process for demonstrating and evaluating for current operational purposes the performance of the capability;

(B) a process for developing an acquisition and funding strategy for the deployment of the capability; and

(C) a process for making deployment and utilization determinations based on information obtained pursuant to subparagraphs (A) and (B).

(3) A process to determine the disposition of a capability, including termination (demilitarization or disposal), continued sustainment, or transition to a program of record.

(4) Specific procedures in accordance with section 3602 of this title.

(c) Response to Combat Emergencies and Certain Urgent Operational Needs.—

(1) Determination of need for urgent acquisition and deployment.—(A) In the case of any capability that, as determined in writing by the Secretary of Defense, is urgently needed to eliminate a documented deficiency that has resulted in combat casualties, or is likely to result in combat casualties, the Secretary may use the procedures developed under this section in order to accomplish the urgent acquisition and deployment of the needed capability.

(B) In the case of any capability that, as determined in writing by the Secretary of Defense, is urgently needed to eliminate a documented deficiency that impacts an ongoing or anticipated contingency operation and that, if left unfulfilled, could potentially result in loss of life or critical mission failure, the Secretary may use the procedures developed under this section in order to accomplish the urgent acquisition and deployment of the needed capability.

(C)(i) In the case of any cyber capability that, as determined in writing by the Secretary of Defense, is urgently needed to eliminate a deficiency that as the result of a cyber attack has resulted in critical mission failure, the loss of life, property destruction, or economic effects, or if left unfilled is likely to result in critical mission failure, the loss of life, property destruction, or economic effects, the Secretary may use the procedures developed under this section in order to accomplish the urgent acquisition and deployment of the needed offensive or defensive cyber capability.

(ii) In this subparagraph, the term "cyber attack" means a deliberate action to alter, disrupt, deceive, degrade, or destroy computer systems or networks or the information or programs resident in or transiting these systems or networks.

(2) Designation of senior official responsible.—(A)(i) Except as provided under clause (ii), whenever the Secretary of Defense makes a determination under subparagraph (A), (B), or (C) of paragraph (1) that a capability is urgently needed to eliminate a deficiency described in that subparagraph, the Secretary shall designate a senior official of the Department of Defense to ensure that the needed capability is acquired and deployed as quickly as possible, with a goal of awarding a contract for the acquisition of the capability within 15 days.

(ii) Clause (i) does not apply to an acquisition initiated in the case of a determination by the Secretary of Defense that funds are necessary to immediately initiate a project under a rapid acquisition pathway if the designated official for acquisitions using such pathway is a service acquisition executive.

(B) Upon designation of a senior official under subparagraph (A) with respect to a needed capability, the Secretary shall authorize that senior official to waive any provision of law or regulation described in subsection (d) that such senior official determines in writing would unnecessarily impede the urgent acquisition and deployment of such capability. In a case in which such capability cannot be acquired without an extensive delay, the senior official shall require that an interim solution be implemented and deployed using the procedures developed under this section to minimize adverse consequences resulting from the urgent need.

(3) Use of funds.—(A) Subject to subparagraph (C), in any fiscal year in which the Secretary of Defense makes a determination described in subparagraph (A), (B), or (C) of paragraph (1) with respect to a capability, or upon the Secretary making a determination that funds are necessary to immediately initiate a project under a rapid acquisition pathway based on a compelling national security need, the Secretary may use any funds available to the Department of Defense to urgently acquire and deploy such capability or immediately initiate such project, respectively, if the determination includes a written finding that the use of such funds is necessary to address in a timely manner the deficiency documented or identified under such subparagraph (A), (B), or (C) or the compelling national security need identified for purposes of such section 804 pathway,¹ respectively.

(B) The authority provided by this section may only be used to acquire capability—

(i) in the case of determinations by the Secretary under paragraph (1)(A), in an amount aggregating not more than $200,000,000 during any fiscal year;

(ii) in the case of determinations by the Secretary under paragraph (1)(B), in an amount aggregating not more than $200,000,000 during any fiscal year;

(iii) in the case of determinations by the Secretary under paragraph (1)(C), in an amount aggregating not more than $200,000,000 during any fiscal year; and

(iv) in the case of a determination by the Secretary that funds are necessary to immediately initiate a project under a rapid acquisition pathway, in an amount aggregating not more than $50,000,000 during any fiscal year.

(C) In exercising the authority under this section—

(i) none of the amounts appropriated for Operation and Maintenance may be used to carry out this section except for amounts appropriated for—

(I) Operation and Maintenance, Defense-wide;

(II) Operation and Maintenance, Army;

(III) Operation and Maintenance, Navy;

(IV) Operation and Maintenance, Marine Corps;

(V) Operation and Maintenance, Air Force; or

(VI) Operation and Maintenance, Space Force; and

(ii) when funds are utilized for sustainment purposes, this authority may not be used for more than 2 years.

(4) Notification to congressional defense committees.—(A) In the case of a determination by the Secretary of Defense under subparagraph (A) or (C) of paragraph (1), the Secretary shall notify the congressional defense committees of the determination within 15 days after the date of the determination.

(B) In the case of a determination by the Secretary under paragraph (1)(B), the Secretary shall notify the congressional defense committees of the determination at least 10 days before the date on which the determination is effective.

(C) In the case of a determination by the Secretary under paragraph (3)(A) that funds are necessary to immediately initiate a project under a rapid acquisition pathway, the Secretary shall notify the congressional defense committees of the determination within 10 days after the date of the use of such funds.

(D) A notice under this paragraph shall include the following:

(i) Identification of the capability to be acquired.

(ii) The amount anticipated to be expended for the acquisition.

(iii) The source of funds for the acquisition.

(E) A notice under this paragraph shall fulfill any requirement to provide notification to Congress for a program (referred to as a "new start program") that has not previously been specifically authorized by law or for which funds have not previously been appropriated.

(F) A notice under this paragraph shall be provided in consultation with the Director of the Office of Management and Budget.

(5) Limitation on officers with authority.—The authority to make determinations under subparagraph (A), (B), or (C) of paragraph (1) and under paragraph (3)(A) that funds are necessary to immediately initiate a project under a rapid acquisition pathway, to designate a senior official responsible under paragraph (3), and to provide notification to the congressional defense committees under paragraph (4) may be exercised only by the Secretary of Defense or the Deputy Secretary of Defense.

(d) Authority to Waive Certain Laws and Regulations.—

(1) Authority.—Following a determination described in subsection (c)(1), the senior official designated in accordance with subsection (c)(2), with respect to that designation, may waive any provision of law or regulation addressing—

(A) the establishment of a requirement or specification for the capability to be acquired;

(B) the research, development, test, and evaluation of the capability to be acquired;

(C) the production, fielding, and sustainment of the capability to be acquired; or

(D) the solicitation, selection of sources, and award of the contracts for procurement of the capability to be acquired.

(2) Limitations.—Nothing in this subsection authorizes the waiver of—

(A) the requirements of this section;

(B) any provision of law imposing civil or criminal penalties; or

(C) any provision of law governing the proper expenditure of appropriated funds.

(e) Operational Assessments.—

(1) In general.—The process prescribed under subsection (b)(2)(A) for demonstrating and evaluating for current operational purposes the performance of a capability proposed pursuant to subsection (b)(1)(B) shall include the following:

(A) An operational assessment in accordance with procedures prescribed by the Director of Operational Test and Evaluation.

(B) A requirement to provide information about any deficiency of the capability in meeting the original requirements for the capability (as stated in a statement of the urgent operational need or similar document) to the deployment decision-making authority.

(2) Limitation.—The process prescribed under subsection (b)(2)(A) may not include a requirement for any deficiency of capability identified in the operational assessment to be the determining factor in deciding whether to deploy the capability.

(3) Director of operational test and evaluation access.—If a capability is deployed under the procedures prescribed pursuant to this section, or under any other authority, before operational test and evaluation of the capability is completed, the Director of Operational Test and Evaluation shall have access to operational records and data relevant to such capability in accordance with section 139(e)(3) of this title for the purpose of completing operational test and evaluation of the capability. Such access shall be provided in a time and manner determined by the Secretary of Defense consistent with requirements of operational security and other relevant operational requirements.

(Added Pub. L. 117–263, div. A, title VIII, §804(a), Dec. 23, 2022, 136 Stat. 2696; amended Pub. L. 118–31, div. A, title VIII, §831, title XVIII, §1801(a)(28), Dec. 22, 2023, 137 Stat. 336, 684; Pub. L. 118–159, div. A, title VIII, §804(c)(1), title XVII, §1701(a)(37), Dec. 23, 2024, 138 Stat. 1968, 2205.)

Editorial Notes

References in Text

Such section 804 pathway, referred to in subsec. (c)(3)(A), related to "section 804 rapid acquisition pathway" which is no longer defined in subsec. (a)(2) of this section after amendment by section 804(c)(1)(A)(ii) of Pub. L. 118–159 substituting "rapid acquisition pathway" for "section 804 rapid acquisition pathway" because section 804 of Pub. L. 114–92, formerly set out as a note preceding section 3201 of this title, was repealed by Pub. L. 118–159, div. A, title VIII, §804(b), Dec. 23, 2024, 138 Stat. 1968. See 2024 Amendment note below.

Amendments

2024—Subsec. (a)(1)(B). Pub. L. 118–159, §804(c)(1)(A)(i), substituted "rapid acquisition pathway" for "section 804 rapid acquisition pathway".

Subsec. (a)(2). Pub. L. 118–159, §1701(a)(37), which directed insertion of "note" before "prec.", could not be executed because "prec." did not appear after the intervening amendment by section 804(c)(1)(A)(ii) of Pub. L. 118–159. See below.

Pub. L. 118–159, §804(c)(1)(A)(ii), amended par. (2) generally. Prior to amendment, text read as follows: "In this section, the term 'section 804 rapid acquisition pathway' means the rapid fielding acquisition pathway or the rapid prototyping acquisition pathway authorized under section 804 of the National Defense Authorization Act for Fiscal Year 2016 (Public Law 114–92; 10 U.S.C. 3201 prec.)."

Subsec. (b)(4). Pub. L. 118–159, §804(c)(1)(B), substituted "section 3602 of this title" for "the guidance developed under section 804(a) of the National Defense Authorization Act for Fiscal Year 2016 (Public Law 114–92; 10 U.S.C. 3201 note prec.)".

Subsec. (c). Pub. L. 118–159, §804(c)(1)(C), substituted "rapid acquisition pathway" for "section 804 rapid acquisition pathway" wherever appearing.

2023—Subsec. (a)(1)(C). Pub. L. 118–31, §831, added subpar. (C).

Subsec. (b)(4). Pub. L. 118–31, §1801(a)(28), inserted "note" before "prec."

Statutory Notes and Related Subsidiaries

Rapid Response to Emergent Technology Advancements or Threats

Pub. L. 118–31, div. A, title II, §229, Dec. 22, 2023, 137 Stat. 200, provided that:

"(a) Authorities.—Upon approval by the Secretary of Defense of a determination described in subsection (b), the Secretary of a military department may use the rapid acquisition and funding authorities established pursuant to section 3601 of title 10, United States Code, to initiate urgent or emerging operational development activities for a period of up to one year, in order to—

"(1) leverage an emergent technological advancement of value to the national defense to address a military service-specific need; or

"(2) provide a rapid response to an emerging threat identified by a military service.

"(b) Determination.—A determination described in this subsection is a determination by the Secretary of a military department submitted in writing to the Secretary of Defense that provides the following:

"(1) Identification of a compelling urgent or emergency national security need to immediately initiate development activity in anticipation of a programming or budgeting action, in order to leverage an emergent technological advancement or provide a rapid response to an emerging threat.

"(2) Justification for why the effort cannot be delayed until the next submission of the budget of the President (under section 1105(a) of title 31, United States Code) without harming the national defense.

"(3) Funding is identified for the effort in the current fiscal year to initiate the activity.

"(4) An appropriate acquisition pathway and programmed funding for transition to continued development, integration, or sustainment is identified to on-ramp this activity within two years.

"(c) Additional Procedures.—

"(1) In general.—Not later than 180 days after the date of the enactment of this Act [Dec. 22, 2023], the Secretary of Defense shall amend the procedures for the rapid acquisition and deployment of capabilities needed in response to urgent operational needs prescribed pursuant to such section 3601 to carry out this section. Such updated procedures shall be provided to the congressional defense committees [Committees on Armed Services and Appropriations of the Senate and the House of Representatives] concurrently with the promulgation to the rest of the Department of Defense.

"(2) Requirements to be included.—The procedures amended under paragraph (1) shall include the following requirements:

"(A) Funding.—(i) Subject to clause (ii), in any fiscal year in which a determination described in subsection (b) is made, the Secretary of the military department making the determination may initiate the activities authorized under subsection (a) using any funds available to the Secretary for such fiscal year for—

"(I) procurement; or

"(II) research, development, test, and evaluation.

"(ii) The total cost of all developmental activities within the Department of Defense, funded under this section, may not exceed $100,000,000 for any fiscal year.

"(B) Waiver authority.—(i) Subject to clause (ii), the Secretary of the military department making a determination under subsection (b) may issue a waiver under subsection (d) of such section 3601.

"(ii) Chapter 221 of title 10, United States Code, may not be waived pursuant to clause (i).

"(C) Transition.—(i) Any acquisition initiated under subsection (a) shall transition to an appropriate acquisition pathway for transition and integration of the development activity, or be transitioned to a newly established program element or procurement line for completion of such activity.

"(ii)(I) Transition shall be completed within one year of initiation, but may be extended one time only at the discretion of the Secretary of the military department for one additional year.

"(II) In the event an extension determination is made under subclause (I), the affected Secretary of the military department shall submit to the congressional defense committees, not later than 30 days before the extension takes effect, written notification of the extension with a justification for the extension.

"(3) Submittal to congress.—Concurrent with promulgation to the Department of the amendments to the procedures under paragraph (1), the Secretary shall submit to the congressional defense committees the procedures updated by such amendments.

"(d) Congressional Notification.—Within 15 days after the Secretary of Defense approves a determination described in subsection (b), the Secretary of the military department making the determination shall provide written notification of such determination to the congressional defense committees following the procedures for notification in subsections (c)(4)(D) and (c)(4)(F) of such section 3601. A notice under this subsection shall be sufficient to fulfill any requirement to provide notification to Congress for a new start program."

Special Authority for Rapid Contracting for Commanders of Combatant Commands

Pub. L. 118–31, div. A, title VIII, §843, Dec. 22, 2023, 137 Stat. 342, provided that:

"(a) In General.—The commander of a combatant command, upon providing a written determination to a senior contracting official (as defined in section 1737 of title 10, United States Code), may request use of the special authorities described in subsection (b)—

"(1) in support of a contingency operation (as defined in section 101(a) of title 10, United States Code);

"(2) to facilitate the defense against or recovery from a cyber attack, nuclear attack, biological attack, chemical attack, or radiological attack against the United States;

"(3) in support of a humanitarian or peacekeeping operation (as the term is defined in section 3015(2) of title 10, United States Code); and

"(4) for purposes of protecting the national security interests of the United States during directed operations that are below the threshold of traditional armed conflict.

"(b) Special Authorities Described.—The special authorities for contracting that may be used by the senior contracting official to rapidly respond to time-sensitive or unplanned emergency situations are as follows:

"(1) Procedures applicable to purchases below micro-purchase threshold (described in section 1902 of title 41, United States Code), with respect to a single contracting action taken under subsection (a) for a contract to be awarded and performed, or purchase to be made—

"(A) in the United States, with a value less than $15,000; or

"(B) outside the United States, with a value less than $25,000.

"(2) Simplified acquisition procedures (described in section 1901 of title 41, United States Code), with respect to a single contracting action taken under subsection (a) for a contract to be awarded and performed, or purchase to be made—

"(A) in the United States, with a value less than $750,000; or

"(B) outside the United States, with a value less than $1,500,000.

"(3) For simplified procedures for purchases under section 3205 of title 10, United States Code, subsection (a)(2) of such section shall be applied by substituting '$10,000,000' for '$5,000,000'.

"(4) The property or service being procured may be treated as a commercial product or a commercial service for the purpose of carrying out the procurement.

"(c) Determination.—A written determination required under subsection (a)—

"(1) may include more than one requested action;

"(2) may be directed to more than one senior contracting official; and

"(3) shall include—

"(A) the rationale for the request in accordance with paragraphs (1) through (4) of such subsection;

"(B) a description of any special authority requested; and

"(C) an attestation that funds are available for such special authority.

"(d) Sunset.—The authority under subsection (a) shall terminate on September 30, 2028.

"(e) Annual Report.—Not later than January 15, 2025, and annually thereafter for four years, the Chairman of the Joint Chiefs of Staff, in coordination with the Under Secretary of Defense for Acquisition and Sustainment, shall submit to the congressional defense committees [Committees on Armed Services and Appropriations of the Senate and the House of Representatives] a report on the use of the authority under this section for the fiscal year preceding the date of submission of the report. The report shall include a summary of each instance of the authority being used, including—

"(1) an identification of each commander submitting a request under subsection (a);

"(2) an identification of each senior contracting official responding to such request; and

"(3) the specific special authority requested, including an identification of the contractor that performed the contract and the value of the contract."

Notice to Committees on Appropriations To Be Concurrently Submitted to Subcommittees on Defense

Pub. L. 118–47, div. A, title VIII, §8071, Mar. 23, 2024, 138 Stat. 501, provided that: "Any notice that is required to be submitted to the Committees on Appropriations of the House of Representatives and the Senate under section 3601 of title 10, United States Code, as added by section 804(a) of the James M. Inhofe National Defense Authorization Act for Fiscal Year 2023 shall be submitted pursuant to that requirement concurrently to the Subcommittees on Defense of the Committees on Appropriations of the House of Representatives and the Senate."

Similar provisions were contained in the following prior appropriation act:

Pub. L. 117–328, div. C, title VIII, §8072, Dec. 29, 2022, 136 Stat. 4605.

Pub. L. 117–103, div. C, title VIII, §8074, Mar. 15, 2022, 136 Stat. 193, as amended by Pub. L. 117–263, div. A, title VIII, §804(d)(2), Dec. 23, 2022, 136 Stat. 2701.

Rapid Acquisition and Deployment Procedures for United States Special Operations Command

Pub. L. 113–291, div. A, title VIII, §851, Dec. 19, 2014, 128 Stat. 3457, as amended by Pub. L. 117–263, div. A, title VIII, §804(d)(3), Dec. 23, 2022, 136 Stat. 2701, provided that:

"(a) Authority to Establish Procedures.—The Secretary may prescribe procedures for the rapid acquisition and deployment of items for the United States Special Operations Command that are currently under development by the Department of Defense or available from the commercial sector and are—

"(1) urgently needed to react to an enemy threat or to respond to significant and urgent safety situations;

"(2) needed to avoid significant risk of loss of life or mission failure; or

"(3) needed to avoid collateral damage risk where the absence of collateral damage is a requirement for mission success.

"(b) Issues to Be Addressed.—The procedures prescribed under subsection (a) shall include the following:

"(1) A process for streamlined communication between the Commander of the United States Special Operations Command and the acquisition and research and development communities, including—

"(A) a process for the Commander to communicate needs to the acquisition community and the research and development community; and

"(B) a process for the acquisition community and the research and development community to propose items that meet the needs communicated by the Commander.

"(2) Procedures for demonstrating, rapidly acquiring, and deploying items proposed pursuant to paragraph (1)(B), including—

"(A) a process for demonstrating performance and evaluating for current operational purposes the existing capability of an item;

"(B) a process for developing an acquisition and funding strategy for the deployment of an item; and

"(C) a process for making deployment determinations based on information obtained pursuant to subparagraphs (A) and (B).

"(c) Testing Requirement.—

"(1) In general.—The process for demonstrating performance and evaluating for current operational purposes the existing capability of an item prescribed under subsection (b)(2)(A) shall include—

"(A) an operational assessment in accordance with expedited procedures prescribed by the Director of Operational Testing and Evaluation; and

"(B) a requirement to provide information to the deployment decision-making authority about any deficiency of the item in meeting the original requirements for the item (as stated in an operational requirements document or similar document).

"(2) Deficiency not a determining factor.—The process may not include a requirement for any deficiency of an item to be the determining factor in deciding whether to deploy the item.

"(3) Additional requirement in case of deficiency.—In the case of any deficiency of an item, a decision to deploy the item may be made only if the Commander of the United States Special Operations Command determines that, for reasons of national security, the deficiency of the item is acceptable.

"(d) Limitation.—The quantity of items of a system procured using the procedures prescribed pursuant to this section may not exceed the number established for low-rate initial production for the system. Any such items shall be counted for purposes of the number of items of the system that may be procured through low-rate initial production.

"(e) Annual Funding Limitation.—Of the funds available to the Commander of the United States Special Operations Command in any given fiscal year, not more than $50,000,000 may be used to procure items under this section.

"(f) Relationship to Other Rapid Acquisition Authority.—The Commander of the United States Special Operations Command may not use the authority under this section at the same time the Commander uses the authority under section 3601 of title 10, United States Code.

"(g) Congressional Notifications.—

"(1) Notification before procedures go into effect.—The Secretary of Defense shall notify the congressional defense committees [Committees on Armed Services and Appropriations of the Senate and the House of Representatives] at least 30 days before the procedures prescribed pursuant to this section are made effective.

"(2) Notification after use of procedures.—The Secretary of Defense shall notify the congressional defense committees not later than 48 hours after each use of the procedures prescribed pursuant to this section."

¹ See References in Text note below.

§3602. Middle tier of acquisition for rapid prototyping and rapid fielding

(a) Guidance Required.—The Under Secretary of Defense for Acquisition and Sustainment, in consultation with the Comptroller of the Department of Defense and the Vice Chairman of the Joint Chiefs of Staff, shall establish pathways as described under subsection (b) to establish a process for conducting middle tier acquisitions for programs or projects that are intended to be completed in a period of two to five years.

(b) Acquisition Pathways.—The Under Secretary of Defense for Acquisition and Sustainment shall establish the following two acquisition pathways:

(1) Rapid prototyping.—The rapid prototyping pathway shall provide for the use of innovative technologies to rapidly develop fieldable prototypes to demonstrate new capabilities and meet emerging military needs. The objective of an acquisition program or project under this pathway shall be to field a prototype that can be demonstrated in an operational environment and provide for a residual operational capability within five years of the development of an approved requirement.

(2) Rapid fielding.—The rapid fielding pathway shall provide for the use of proven technologies to field production quantities of new or upgraded systems with minimal development required. The objective of an acquisition program or project under this pathway shall be to begin production within six months and complete fielding within five years of the development of an approved requirement.

(c) Expedited Process.—

(1) In general.—Before using the authority under this section, the Under Secretary shall develop a streamlined and coordinated requirements, budget, and acquisition process that results in the development of an approved requirement for each acquisition program or project in a period of not more than six months from the time that the process is initiated. Programs or projects carried out under the authority of this section shall not be subject to the Joint Capabilities Integration and Development System Manual and Department of Defense Directive 5000.01.

(2) Rapid prototyping.—With respect to the rapid prototyping pathway, the process described in paragraph (1) shall include—

(A) a merit-based process for the consideration of innovative technologies and new capabilities to meet needs communicated by the Joint Chiefs of Staff and the combatant commanders;

(B) a process for developing and implementing acquisition and funding strategies for a program or project to be carried out under such pathway;

(C) a process for demonstrating and evaluating the performance of fieldable prototypes developed pursuant to such program or project in an operational environment;

(D) a process for transitioning successful prototypes to new or existing acquisition programs for production and fielding under the rapid fielding pathway or the major capability acquisition pathway (as defined under Department of Defense Instruction 5000.85 or successor instruction); and

(E) a process for iterating prototyping and fielding within the rapid prototyping pathway that may use a process described in paragraph (4)(F).

(3) Rapid fielding.—With respect to the rapid fielding pathway, the process described in paragraph (1) shall include—

(A) a merit-based process for the consideration of existing products and proven technologies to meet needs communicated by the Joint Chiefs of Staff and the combatant commanders;

(B) a process for demonstrating performance and evaluating for current operational purposes the proposed products and technologies;

(C) a process for developing and implementing acquisition and funding strategies for a program or project to be carried out under such pathway;

(D) a process for considering lifecycle costs and addressing issues of logistics support and system interoperability; and

(E) a process for identifying and exploiting opportunities to use the rapid fielding pathway to reduce total ownership costs.

(4) Streamlined procedures.—The process described in paragraph (1) may provide for any of the following streamlined procedures:

(A) The service acquisition executive of the military department concerned may appoint a program manager for a program or project for which the authority under this section is used from among candidates from among civilian employees or members of the armed forces who have significant and relevant experience managing large and complex programs.

(B) A program manager appointed under subparagraph (A) may be provided staff positions for a technical staff, including experts in business management, cost estimation, contracting, auditing, engineering, certification, testing, and logistics, to enable the program manager to manage the program without the technical assistance of another element of the Department of Defense to the maximum extent practicable.

(C) A program manager appointed under subparagraph (A) may, in coordination with the users of the good or service to be acquired under such a program or project and the test community, to make trade-offs among life-cycle costs, requirements, and schedules to meet the goals of the program or project.

(D) Each service acquisition executive, acting in coordination with the defense acquisition executive, may serve as the decision authority for a program or project for which the authority under this section is used, or shall delegate such decision authority.

(E) A program manager appointed under subparagraph (A) may seek an expedited waiver from any regulatory requirement, or in the case of a statutory requirement, a waiver from Congress, that the program manager determines adds cost, schedule, or performance delays with little or no value to the management of such program or project.

(F) If an operational capability is fielded for a program or project for which the authority under this section is used, the appropriate service acquisition executive may permit continuous iterative prototyping and fielding under the same program or project for an unlimited number of subsequent periods, where each period is intended to be five years.

(Added Pub. L. 118–159, div. A, title VIII, §804(a), Dec. 23, 2024, 138 Stat. 1966.)

Editorial Notes

Prior Provisions

Provisions similar to those in this section were contained in Pub. L. 114–92, div. A, title VIII, §804, Nov. 25, 2015, 129 Stat. 882, as amended by Pub. L. 114–328, div. A, title VIII, §§849(a), 864(b), 897, title X, §1081(c)(2), Dec. 23, 2016, 130 Stat. 2293, 2304, 2327, 2419; Pub. L. 115–91, div. A, title VIII, §866, Dec. 12, 2017, 131 Stat. 1495; Pub. L. 116–92, div. A, title IX, §902(33), Dec. 20, 2019, 133 Stat. 1546; Pub. L. 116–283, div. A, title VIII, §805, Jan. 1, 2021, 134 Stat. 3742, which was set out in a note preceding section 3201 of this title, prior to repeal by Pub. L. 118–159, div. A, title VIII, §804(b), Dec. 23, 2024, 138 Stat. 1968.

§3603. Software acquisition pathways

(a) Software Acquisition and Development Pathways.—The Secretary of Defense shall establish pathways as described under subsection (b) to provide for the efficient and effective acquisition, development, integration, and timely delivery of software and covered hardware. Such a pathway shall include the following: ¹

(b) Pathways.—The Secretary of Defense may establish as many pathways under this section as the Secretary determines appropriate and shall establish the following pathways:

(1) Applications.—The applications pathway shall provide for the use of rapid development and implementation of applications and other software or software improvements operated by the Department of Defense, which may include applications and associated procurement of covered hardware (including modifications of a type not customarily available in the commercial marketplace to meet Department requirements), commercially available cloud computing platforms, and other nondevelopmental items.

(2) Embedded systems.—The embedded systems pathway shall provide for the rapid development and insertion of upgrades and improvements for software and covered hardware embedded in weapon systems and other hardware systems unique to the Department of Defense.

(c) Requirements for Pathways.—A pathway established under this section shall provide for the use of proven technologies and solutions to continuously engineer and deliver capabilities for software and covered hardware.

(d) Considerations for Use of Authority.—In using the authority under this section, the Secretary shall consider how such use will—

(1) initiate the engineering of new software capabilities quickly and, if applicable, the integration of such capabilities into covered hardware;

(2) demonstrate the viability and effectiveness of such capabilities for operational use not later than one year after the date on which funds are first obligated to acquire or develop software; and

(3) allow for the continuous updating and delivery of new capabilities not less frequently than annually to iteratively meet a requirement.

(e) Treatment Not as Major Defense Acquisition Program.—Software and covered hardware acquired or developed using the authority under this section shall not be treated as a major defense acquisition program for purposes of section 4201 of title 10, United States Code, or Department of Defense Directive 5000.01 without the specific designation of such software and covered hardware by the Under Secretary of Defense for Acquisition and Sustainment or a service acquisition executive.

(f) Risk-based Approach.—The Secretary of Defense shall use a risk-based approach for the consideration of innovative technologies and new capabilities for software and covered hardware to be acquired or developed under this authority to meet needs communicated by the Joint Chiefs of Staff and the combatant commanders.

(g) Expedited Process.—

(1) In general.—A pathway established under this section shall provide for—

(A) a streamlined and coordinated requirements, budget, and acquisition process to support rapid fielding of software applications and of software upgrades to embedded systems for operational use in a period of not more than one year from the time that the process is initiated;

(B) the collection of data on software and covered hardware fielded; and

(C) continuous engagement with the users of software and covered hardware to support—

(i) engineering activities of the Department of Defense; and

(ii) delivery of software and covered hardware for operational use in periods of not more than one year.

(2) Expedited software requirements process.—

(A) Inapplicability of joint capabilities integration and development system manual.—Software and covered hardware acquisition or development conducted under the authority of this section shall not be subject to the Joint Capabilities Integration and Development System Manual, except pursuant to a modified process specifically provided for the acquisition or development of software by the Vice Chairman of the Joint Chiefs of Staff, in consultation with Under Secretary of Defense for Acquisition and Sustainment and each service acquisition executive.

(B) Inapplicability of defense acquisition system directive.—Software and covered hardware acquisition or development conducted under the authority of this section shall not be subject to Department of Defense Directive 5000.01, except when specifically provided for the acquisition or development of software by the Under Secretary of Defense for Acquisition and Sustainment, in consultation with the Vice Chairman of the Joint Chiefs of Staff and each service acquisition executive.

(h) Elements.—In implementing a pathway established under the authority of this section, the Secretary shall tailor requirements relating to—

(1) iterative development of requirements for software and covered hardware to be acquired or developed under the authority of this section through engagement with the user community and through user feedback, in order to continuously define and update priorities for such requirements;

(2) early identification of the warfighter or user needs including the rationale for how software and covered hardware to be acquired or developed under the authority of this section will be tailored to address such needs;

(3) initial contract requirements and format, including the use of summary-level lists of problems in existing software and desired features or capabilities of new or upgraded software;

(4) continuous refinement and prioritization of contract requirements, informed by continuous engagement with users throughout the period of development and implementation of software and covered hardware to be acquired or developed under this section;

(5) continuous consideration of issues related to lifecycle costs, technical data rights, and systems interoperability;

(6) planning for support of capabilities of software to be acquired or developed under this section if the software developer stops supporting the software;

(7) rapid contracting procedures, including expedited timeframes for making awards, selecting contract types, defining teaming arrangements, and defining options;

(8) program execution processes, including supporting development and test infrastructure, automation and tools, digital engineering, data collection and sharing with Department of Defense stakeholders and with Congress, the role of developmental and operational testing activities, key decision-making and oversight events, and supporting processes and activities (such as independent costing activity, operational demonstration, and performance metrics);

(9) assurances that cybersecurity metrics of the software to be acquired or developed, such as metrics relating to the density of vulnerabilities within the code of such software, the time from vulnerability identification to patch availability, the existence of common weaknesses within such code, and other cybersecurity metrics based on widely-recognized standards and industry best practices, are generated and made available to the Department of Defense and the congressional defense committees;

(10) administrative procedures, including procedures relating to who may initiate and approve an acquisition under this authority, the roles and responsibilities of persons implementing or supporting the use of authority under this section, team selection and staffing process, governance and oversight roles and responsibilities, and appropriate independent technology assessments, testing, and cost estimation (including relevant thresholds or designation criteria);

(11) mechanisms and waivers designed to ensure flexibility in the implementation of a pathway under this section, including the use of other transaction authority, broad agency announcements, and other procedures; and

(12) mechanisms the Secretary will use for appropriate reporting to Congress on the use of the authority under this section, including notice of initiation of the use of a pathway and data regarding individual programs or acquisition activities, how acquisition activities are reflected in budget justification materials or requests to reprogram appropriated funds, and compliance with other reporting requirements.

(i) Definitions.—In this section:

(1) The term "covered hardware" means hardware—

(A) that is a commercial product (as defined in section 103 of title 41) or a nondevelopmental item; and

(B) in which software acquired under this section is embedded.

(2) The term "nondevelopmental item" has the meaning given in section 110 of title 41.

(Added Pub. L. 118–159, div. A, title VIII, §805(a), Dec. 23, 2024, 138 Stat. 1969.)

Editorial Notes

Prior Provisions

Provisions similar to those in this section were contained in Pub. L. 116–92, div. A, title VIII, §800, Dec. 20, 2019, 133 Stat. 1478, which was set out in a note under section 4571 of this title, prior to repeal by Pub. L. 118–159, div. A, title VIII, §805(c)(1), Dec. 23, 2024, 138 Stat. 1972.

Statutory Notes and Related Subsidiaries

Guidance Required

Pub. L. 118–159, div. A, title VIII, §805(b), Dec. 23, 2024, 138 Stat. 1972, provided that: "Not later than 90 days after the date of the enactment of this Act [Dec. 23, 2024], the Secretary of Defense shall issue or modify guidance to implement the requirements of this section."

¹ So in original.

§3604. Program to accelerate the procurement and fielding of innovative technologies

(a) Program.—Subject to availability of appropriations, the Secretary of Defense shall establish a competitive, merit-based program to accelerate the procurement and fielding of innovative technologies by, with respect to such technologies—

(1) reducing acquisition or life-cycle costs;

(2) addressing technical risks;

(3) improving the timeliness and thoroughness of test and evaluation outcomes; and

(4) rapidly implementing such technologies to directly support defense missions.

(b) Guidelines.—

(1) In general.—The Secretary shall issue guidelines for the operation of the program established under this section.

(2) Contents.—At a minimum, the guidelines for the operation of the program established under this section required under paragraph (1) shall provide for the following:

(A) The issuance of one or more solicitations for proposals by the Department of Defense in support of the program, with a priority established for technologies developed by small business concerns (as defined under section 3 of the Small Business Act (15 U.S.C. 632)) or nontraditional defense contractors (as defined under section 3014 of this title).

(B) The issuance of not more than two solicitations for proposals by the Department of Defense in support of the program each fiscal year for innovative technologies from entities that, during the one-year period preceding the issuance of the solicitation, have not performed on contracts and subcontracts for the Department under which the aggregate obligations of the Department to such entity for such period exceeds $400,000,000.

(C) A process for—

(i) the review of proposals received in response to a solicitation issued under subparagraph (A) by the Secretary of Defense and by each Secretary of a military department;

(ii) the merit-based selection of the most promising cost-effective proposals; and

(iii) the procurement of goods or services offered by such a proposal through contracts, cooperative agreements, other transaction authority, or by another appropriate process.

(c) Maximum Amount.—The total amount of funding provided for any proposal selected for an award under the program established under this section shall not exceed $50,000,000, unless the Secretary (or designee of the Secretary) approves a greater amount of funding.

(d) Data Collection.—

(1) Plan required before implementation.—The Secretary of Defense may not provide funding under this section until the date on which the Secretary—

(A) completes a plan for carrying out the data collection required under paragraph (2); and

(B) submits the plan to the congressional defense committees.

(2) Data collection required.—The Secretary of Defense shall collect and analyze data on the program established under this section for the purposes of—

(A) developing and sharing best practices for achieving the objectives of the program;

(B) providing information on the implementation of the program and related policy issues; and

(C) reporting to the congressional defense committees as required under subsection (e).

(e) Biannual Report.—Not later than March 1 and September 1 of each year beginning after the date of the enactment of this section, the Secretary of Defense shall submit to the congressional defense committees a report on the program established under this section.

(f) Congressional Notification.—The Secretary of Defense shall notify the congressional defense committees within 30 days after funding has been provided for a proposal selected for an award under the program established under this section.

(Added Pub. L. 118–159, div. A, title VIII, §861(a), Dec. 23, 2024, 138 Stat. 1999.)

Editorial Notes

References in Text

The date of the enactment of this section, referred to in subsec. (e), is the date of enactment of Pub. L. 118–159, which was approved Dec. 23, 2024.

Prior Provisions

Provisions similar to those in this section were contained in Pub. L. 117–81, div. A, title VIII, §834, Dec. 27, 2021, 135 Stat. 1835, as amended by Pub. L. 117–263, div. A, title VIII, §845, Dec. 23, 2022, 136 Stat. 2720, which was set out in a note under section 4061 of this title, prior to repeal by Pub. L. 118–159, div. A, title VIII, §861(b), Dec. 23, 2024, 138 Stat. 2000.

CHAPTER 255—CONTRACTING WITH OR THROUGH OTHER AGENCIES

Editorial Notes

Amendments

2018—Pub. L. 115–232, div. A, title VIII, §801(a), Aug. 13, 2018, 132 Stat. 1828, added chapter heading.

Statutory Notes and Related Subsidiaries

Defense Procurements Made Through Contracts of Other Agencies

Pub. L. 108–375, div. A, title VIII, §854, Oct. 28, 2004, 118 Stat. 2022, provided that:

"(a) Limitation.—The head of an agency may not procure goods or services (under section 1535 of title 31, United States Code, pursuant to a designation under section 11302(e) of title 40, United States Code, or otherwise) through a contract entered into by an agency outside the Department of Defense for an amount greater than the simplified acquisition threshold referred to in section 2304(g) of title 10, United States Code [now 10 U.S.C. 3205], unless the procurement is done in accordance with procedures prescribed by that head of an agency for reviewing and approving the use of such contracts.

"(b) Effective Date.—The limitation in subsection (a) shall apply only with respect to orders for goods or services that are issued by the head of an agency to an agency outside the Department of Defense on or after the date that is 180 days after the date of the enactment of this Act [Oct. 28, 2004].

"(c) Inapplicability to Contracts for Certain Services.—This section does not apply to procurements of the following services:

"(1) Printing, binding, or blank-book work to which section 502 of title 44, United States Code, applies.

"(2) Services available under programs pursuant to section 103 of the Library of Congress Fiscal Operations Improvement Act of 2000 (Public Law 106–481; 114 Stat. 2187; 2 U.S.C. 182c).

"(d) Annual Report.—(1) For each of fiscal years 2005 and 2006, each head of an agency shall submit to the Secretary of Defense a report on the service charges imposed on purchases made for an amount greater than the simplified acquisition threshold during such fiscal year through a contract entered into by an agency outside the Department of Defense.

"(2) In the case of procurements made on orders issued by the head of a Defense Agency, Department of Defense Field Activity, or any other organization within the Department of Defense (other than a military department) under the authority of the Secretary of Defense as the head of an agency, the report under paragraph (1) shall be submitted by the head of that Defense Agency, Department of Defense Field Activity, or other organization, respectively.

"(3) The report for a fiscal year under this subsection shall be submitted not later than December 31 of the calendar year in which such fiscal year ends.

"(e) Definitions.—In this section:

"(1) The term 'head of an agency' means the Secretary of Defense, the Secretary of the Army, the Secretary of the Navy, the Secretary of the Air Force.

"(2) The term 'Defense Agency' has the meaning given such term in section 101(a)(11) of title 10, United States Code.

"(3) The term 'Department of Defense Field Activity' has the meaning given such term in section 101(a)(12) of such title."

Procurement of Alternative Fueled and Hybrid Light Duty Trucks

Pub. L. 107–107, div. A, title III, §318, Dec. 28, 2001, 115 Stat. 1055, provided that:

"(a) Defense Fleets Not Covered by Requirement in Energy Policy Act of 1992.—(1) The Secretary of Defense shall coordinate with the Administrator of General Services to ensure that only hybrid vehicles are procured by the Administrator for the Department of Defense fleet of light duty trucks that is not in a fleet of vehicles to which section 303 of the Energy Policy Act of 1992 (42 U.S.C. 13212) applies.

"(2) The Secretary, in consultation with the Administrator, may waive the policy regarding the procurement of hybrid vehicles in paragraph (1) to the extent that the Secretary determines necessary—

"(A) in the case of trucks that are exempt from the requirements of section 303 of the Energy Policy Act of 1992 for national security reasons under subsection (b)(3)(E) of such section, to meet specific requirements of the Department of Defense for capabilities of light duty trucks;

"(B) to procure vehicles consistent with the standards applicable to the procurement of fleet vehicles for the Federal Government; or

"(C) to adjust to limitations on the commercial availability of light duty trucks that are hybrid vehicles.

"(3) This subsection applies with respect to procurements of light duty trucks in fiscal year 2005 and subsequent fiscal years.

"(b) Requirement To Exceed Requirement in Energy Policy Act of 1992.—(1) The Secretary of Defense shall coordinate with the Administrator of General Services to ensure that, of the light duty trucks procured in fiscal years after fiscal year 2004 for the fleets of light duty vehicles of the Department of Defense to which section 303 of the Energy Policy Act of 1992 [42 U.S.C. 13212] applies—

"(A) five percent of the total number of such trucks that are procured in each of fiscal years 2005 and 2006 are alternative fueled vehicles or hybrid vehicles; and

"(B) ten percent of the total number of such trucks that are procured in each fiscal year after fiscal year 2006 are alternative fueled vehicles or hybrid vehicles.

"(2) Light duty trucks acquired for the Department of Defense that are counted to comply with section 303 of the Energy Policy Act of 1992 for a fiscal year shall be counted to determine the total number of light duty trucks procured for the Department of Defense for that fiscal year for the purposes of paragraph (1), but shall not be counted to satisfy the requirement in that paragraph.

"(c) Report on Plans for Implementation.—At the same time that the President submits the budget for fiscal year 2003 to Congress under section 1105(a) of title 31, United States Code, the Secretary shall submit to Congress a report summarizing the plans for carrying out subsections (a) and (b).

"(d) Definitions.—In this section:

"(1) The term 'hybrid vehicle' means a motor vehicle that draws propulsion energy from onboard sources of stored energy that are both—

"(A) an internal combustion or heat engine using combustible fuel; and

"(B) a rechargeable energy storage system.

"(2) The term 'alternative fueled vehicle' has the meaning given that term in section 301 of the Energy Policy Act of 1992 (42 U.S.C. 13211)."

§3651. [Reserved]

[Reserved]

Editorial Notes

Prior Provisions

Prior sections 3661 to 3663 were repealed by Pub. L. 90–377, §6(1), July 5, 1968, 82 Stat. 288.

Section 3661, act Aug. 10, 1956, ch. 1041, 70A Stat. 208, provided for organization and administration of United States Disciplinary Barracks.

Section 3662, act Aug. 10, 1956, ch. 1041, 70A Stat. 209, provided for military training, organization, and equipping of prisoners who have been sent to United States Disciplinary Barracks.

Section 3663, act Aug. 10, 1956, ch. 1041, 70A Stat. 209, authorized Secretary of the Army to parole or remit sentence and restore to duty offenders who are confined in United States Disciplinary Barracks.

CHAPTER 257—CONTRACTS FOR LONG-TERM LEASE OR CHARTER OF VESSELS, AIRCRAFT, AND COMBAT VEHICLES

        

Statutory Notes and Related Subsidiaries

Riding Gang Member Requirements

Pub. L. 109–364, div. A, title X, §1018, Oct. 17, 2006, 120 Stat. 2380, as amended by Pub. L. 110–417, div. C, title XXXV, §3504, Oct. 14, 2008, 122 Stat. 4762, provided that:

"(a) In General.—The Secretary of Defense may not award, renew, extend, or exercise an option to extend any charter of a vessel documented under chapter 121 of title 46, United States Code, for the Department of Defense, or any contract for the carriage of cargo by a vessel documented under that chapter for the Department of Defense, unless the charter or contract, respectively, includes provisions that—

"(1) subject to paragraph (2), allow riding gang members to perform work on the vessel during the effective period of the charter or contract only under terms, conditions, restrictions, and requirements as provided in section 8106 of title 46, United States Code; and

"(2) require that riding gang members hold a merchant mariner's document issued under chapter 73 of title 46, United States Code, or a transportation security card issued under section 70105 of such title.

"(b) Exemption.—

"(1) In general.—In accordance with regulations issued by the Secretary of Defense, an individual shall not be treated as a riding gang member for the purposes of section 8106 of title 46, United States Code, and this section if—

"(A) the individual is aboard a vessel that is under charter or contract for the carriage of cargo for the Department of Defense, for purposes other than engaging in the operation or maintenance of the vessel; and

"(B) the individual—

"(i) accompanies, supervises, guards, or maintains unit equipment aboard a ship, commonly referred to as supercargo personnel;

"(ii) is one of the force protection personnel of the vessel;

"(iii) is a specialized repair technician; or

"(iv) is otherwise required by the Secretary of Defense to be aboard the vessel.

"(2) Background check.—

"(A) In general.—This section shall not apply to an individual unless—

"(i) the name and other necessary identifying information for the individual is submitted to the Secretary for a background check; and

"(ii) except as provided in subparagraph (B), the individual successfully passes a background check by the Secretary prior to going aboard the vessel.

"(B) Waiver.—The Secretary may waive the application of subparagraph (A)(ii) for an individual who holds a merchant mariner's document issued under chapter 73 of title 46, United States Code, or a transportation security card issued under section 70105 of such title.

"(3) Exempted individual not treated as in addition to the crew.—An individual who, under paragraph (1), is not treated as a riding gang member shall not be counted as an individual in addition to the crew for the purposes of section 3304 of title 46, United States Code."

[Amendments made by Pub. L. 117–263 to section 70105 of Title 46, Shipping, referred to in section 1018(a)(2), (b)(2)(B) of Pub. L. 109–364, set out above, are such that section 70105 now refers to "transportation worker identification credential" rather than "transportation security card". See section 70105 of Title 46.]

§3671. Requirement for authorization by law of certain contracts relating to vessels, aircraft, and combat vehicles

(a)(1) The Secretary of a military department may make a contract for the lease of a vessel, aircraft, or combat vehicle or for the provision of a service through use by a contractor of a vessel, aircraft, or combat vehicle only as provided in subsection (b) if—

(A) the contract will be a long-term lease or charter; or

(B) the terms of the contract provide for a substantial termination liability on the part of the United States.

(2) The Secretary of a military department may make a contract that is an agreement to lease or charter or an agreement to provide services and that is (or will be) accompanied by a contract for the actual lease, charter, or provision of services only as provided in subsection (b) if the contract for the actual lease, charter, or provision of services is (or will be) a contract described in paragraph (1).

(b)(1) The Secretary may make a contract described in subsection (a)(1) if—

(A) the Secretary has been specifically authorized by law to make the contract;

(B) before a solicitation for proposals for the contract was issued the Secretary notified the congressional defense committees of the Secretary's intention to issue such a solicitation;

(C) the Secretary has notified those committees of the proposed contract and provided a detailed description of the terms of the proposed contract and a justification for entering into the proposed contract rather than providing for the lease, charter, or services involved through purchase of the vessel, aircraft, or combat vehicle to be used under the contract, and a period of 30 days of continuous session of Congress has expired following the date on which notice was received by such committees; and

(D) the Secretary has certified to those committees—

(i) that entering into the proposed contract as a means of obtaining the vessel, aircraft, or combat vehicle is the most cost-effective means of obtaining such vessel, aircraft, or combat vehicle; and

(ii) that the Secretary has determined that the lease complies with all applicable laws, Office of Management and Budget circulars, and Department of Defense regulations.

(2) For purposes of paragraph (1)(C), the continuity of a session of Congress is broken only by an adjournment of the Congress sine die, and the days on which either House is not in session because of an adjournment of more than three days to a day certain are excluded in a computation of such 30-day period.

(3) Upon receipt of a notice under paragraph (1)(C), a committee identified in paragraph (1)(B) may request the Inspector General of the Department of Defense or the Comptroller General of the United States to conduct a review of the proposed contract to determine whether or not such contract meets the requirements of this section.

(4) If a review is requested under paragraph (3), the Inspector General of the Department of Defense or the Comptroller General of the United States, as the case may be, shall submit to the Secretary and the congressional defense committees a report on such review before the expiration of the period specified in paragraph (1)(C).

(5) In the case of a contract described in subsection (a)(1)(B), the commander of the special operations command may make a contract without regard to this subsection if funds are available and obligated for the full cost of the contract (including termination costs) on or before the date the contract is awarded.

(Added and amended Pub. L. 116–283, div. A, title XVIII, §1825(a), (b), Jan. 1, 2021, 134 Stat. 4206; Pub. L. 118–159, div. A, title VIII, §811(b), Dec. 23, 2024, 138 Stat. 1979.)

Editorial Notes

Codification

The text of subsec. (a) of section 2401 of this title, which was transferred to this section by Pub. L. 116–283, §1825(b), was based on Pub. L. 98–94, title XII, §1202(a)(1), Sept. 24, 1983, 97 Stat. 679; Pub. L. 109–163, div. A, title VIII, §815(a)(1), Jan. 6, 2006, 119 Stat. 3381.

The text of subsec. (b) of section 2401 of this title, which was transferred to this section by Pub. L. 116–283, §1825(b), was based on Pub. L. 98–94, title XII, §1202(a)(1), Sept. 24, 1983, 97 Stat. 679; Pub. L. 104–106, div. A, title XV, §§1502(a)(20), Feb. 10, 1996, 110 Stat. 504; Pub. L. 106–65, div. A, title X, §1067(1), Oct. 5, 1999, 113 Stat. 774; Pub. L. 106–398, §1 [[div. A], title X, §1087(a)(13)], Oct. 30, 2000, 114 Stat. 1654, 1654A-291; Pub. L. 109–163, div. A, title VIII, §815(a)(1), (b), Jan. 6, 2006, 119 Stat. 3381; Pub. L. 110–181, div. A, title VIII, §824, Jan. 28, 2008, 122 Stat. 227; Pub. L. 112–239, div. A, title X, §1076(f)(26), Jan. 2, 2013, 126 Stat. 1953.

Amendments

2024—Subsec. (b)(5). Pub. L. 118–159 substituted "subsection if funds" for "subsection if—(A) funds" and period for semicolon at end and struck out former subpars. (B) and (C) which read as follows:

"(B) the Secretary of Defense submits to the congressional defense committees a certification that there is no alternative for meeting urgent operational requirements other than making the contract; and

"(C) a period of 30 days of continuous session of Congress has expired following the date on which the certification was received by such committees."

2021—Pub. L. 116–283, §1825(b), transferred subsecs. (a) and (b) of section 2401 of this title to this section.

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.

§3672. Requirement of specific authorization by law for appropriation, and for obligation and expenditure, of funds for certain contracts relating to aircraft, naval vessels, and combat vehicles

(a) Limitation.—Funds may not be appropriated for any fiscal year to or for any armed force or obligated or expended for—

(1) the long-term lease or charter of any aircraft, naval vessel, or combat vehicle; or

(2) for the lease or charter of any aircraft, naval vessel, or combat vehicle the terms of which provide for a substantial termination liability on the part of the United States,

unless funds for that purpose have been specifically authorized by law.

(b) Matter to Be Submitted to Congress.—(1) Whenever a request is submitted to Congress for the authorization of the long-term lease or charter of aircraft, naval vessels, or combat vehicles or for the authorization of a lease or charter of aircraft, naval vessels, or combat vehicles which provides for a substantial termination liability on the part of the United States, the Secretary of Defense shall submit with that request an analysis of the cost to the United States (including lost tax revenues) of any such lease or charter arrangement compared with the cost to the United States of direct procurement of the aircraft, naval vessels, or combat vehicles by the United States.

(2) Any such analysis shall be reviewed and evaluated by the Director of the Office of Management and Budget and the Secretary of the Treasury within 30 days after the date on which the request and analysis are submitted to Congress. The Director and Secretary shall conduct such review and evaluation on the basis of the guidelines issued pursuant to section 3676 of this title and shall report to Congress in writing on the results of their review and evaluation at the earliest practicable date, but in no event more than 45 days after the date on which the request and analysis are submitted to the Congress.

(3) Whenever a request is submitted to Congress for the authorization of funds for the Department of Defense for the long-term lease or charter of aircraft, naval vessels, or combat vehicles authorized under this chapter, the Secretary of Defense—

(A) shall indicate in the request what portion of the requested funds is attributable to capital-hire; and

(B) shall reflect such portion in the appropriate procurement account in the request.

(Added and amended Pub. L. 116–283, div. A, title XVIII, §1825(a), (d), (e), Jan. 1, 2021, 134 Stat. 4206, 4207.)

Editorial Notes

Codification

The text of par. (1) of subsec. (c) of section 2401 of this title, which was transferred to this section, redesignated as subsec. (a), and amended by Pub. L. 116–283, §1825(d), was based on Pub. L. 98–94, title XII, §1202(a)(1), Sept. 24, 1983, 97 Stat. 679; Pub. L. 98–525, title XII, §1232(a)(1), Oct. 19, 1984, 98 Stat. 2600; Pub. L. 109–163, div. A, title VIII, §815(a)(2), Jan. 6, 2006, 119 Stat. 3381.

The text of subsec. (e) of section 2401 of this title, which was transferred to this section, redesignated as subsec. (b), and amended by Pub. L. 116–283, §1825(e), was based on Pub. L. 98–94, title XII, §1202(a)(1), Sept. 24, 1983, 97 Stat. 679; Pub. L. 109–163, div. A, title VIII, §815(a)(3), Jan. 6, 2006, 119 Stat. 3381; Pub. L. 116–92, div. A, title XVII, §1731(a)(48), Dec. 20, 2019, 133 Stat. 1815.

Amendments

2021—Subsec. (a). Pub. L. 116–283, §1825(d), after transfer of par. (2) of section 2401(c) of this title to section 3673 of this title, redesignated remainder of subsec. (c) of section 2401 of this title as subsec. (a) of this section, inserted heading, struck out par. (1) designation before "Funds may not", and redesignated subpars. (A) and (B) of such former par. (1) as pars. (1) and (2), respectively.

Subsec. (b). Pub. L. 116–283, §1825(e), redesignated subsec. (e) of section 2401 of this title as subsec. (b) of this section, inserted heading, and substituted "section 3676 of this title" for "subsection (g)" in par. (2) and "this chapter" for "this section" in introductory provisions of par. (3).

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.

§3673. Limitation on indemnification

Funds appropriated to the Department of Defense may not be used to indemnify any person under the terms of a contract entered into under this chapter—

(1) for any amount paid or due by any person to the United States for any liability arising under the Internal Revenue Code of 1986; or

(2) to pay any attorneys' fees in connection with such contract.

(Added and amended Pub. L. 116–283, div. A, title XVIII, §1825(a), (c), Jan. 1, 2021, 134 Stat. 4206.)

Editorial Notes

References in Text

The Internal Revenue Code of 1986, referred to in par. (1), is classified generally to Title 26, Internal Revenue Code.

Codification

The text of par. (2) of subsec. (c) of section 2401 of this title, which was transferred to this section and amended by Pub. L. 116–283, §1825(c), was based on Pub. L. 98–525, title XII, §1232(a)(1)(C), Oct. 19, 1984, 98 Stat. 2600; Pub. L. 103–35, title II, §201(c)(6), May 31, 1993, 107 Stat. 98; Pub. L. 104–106, div. A, title XV, §1503(a)(21), Feb. 10, 1996, 110 Stat. 512.

Amendments

2021—Pub. L. 116–283, §1825(c), transferred par. (2) of section 2401(c) of this title to this section, struck out par. (2) designation at beginning, substituted "this chapter" for "this section" in introductory provisions, and redesignated subpars. (A) and (B) of such former par. (2) as pars. (1) and (2), respectively.

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.

§3674. Long-term lease or charter defined; substantial termination liability

(a) Long-term Lease or Charter.—

(1) General rule.—

(A) In this chapter, the term "long-term lease or charter" (except as provided in paragraph (2)) means a lease, charter, service contract, or conditional sale agreement—

(i) the term of which is for a period of five years or longer or more than one-half the useful life of the vessel, aircraft, or combat vehicle; or

(ii) the initial term of which is for a period of less than five years but which contains an option to renew or extend the agreement for a period which, when added to the initial term (or any previous renewal or extension), is five years or longer.

(B) Such term includes the extension or renewal of a lease or charter agreement if the term of the extension or renewal thereof is for a period of five years or longer or if the term of the lease or charter agreement being extended or renewed was for a period of five years or longer.

(2) Special rule.—

(A) In the case of an agreement under which the lessor first places the property in service under the agreement or the property has been in service for less than one year and there is allowable to the lessor or charterer an investment tax credit or depreciation for the property leased, chartered, or otherwise provided under the agreement under section 168 of the Internal Revenue Code of 1986 (unless the lessor or charterer has elected depreciation on a straightline method for such property), the term "long-term lease or charter" means a lease, charter, service contract, or conditional sale agreement—

(i) the term of which is for a period of three years or longer; or

(ii) the initial term of which is for a period of less than three years but which contains an option to renew or extend the agreement for a period which, when added to the initial term (or any previous renewal or extension), is three years or longer.

(B) Such term includes the extension or renewal of a lease or charter agreement if the term of the extension or renewal thereof is for a period of three years or longer or if the term of the lease or charter agreement being extended or renewed was for a period of three years or longer.

(b) Substantial Termination Liability.—For the purposes of this chapter, the United States shall be considered to have a substantial termination liability under a contract—

(1) if there is an agreement by the United States under the contract to pay an amount not less than the amount equal to 25 percent of the value of the vessel, aircraft, or combat vehicle under lease or charter, calculated on the basis of the present value of the termination liability of the United States under such charter or lease (as determined under regulations prescribed by the Secretary of Defense); or

(2) if (as determined under regulations prescribed by the Secretary of Defense) the sum of—

(A) the present value of the amount of the termination liability of the United States under the contract as of the end of the term of the contract (exclusive of any option to extend the contract); and

(B) the present value of the total of the payments to be made by the United States under the contract (excluding any option to extend the contract) attributable to capital-hire,

is more than one-half the price of the vessel, aircraft, or combat vehicle involved.

(Added and amended Pub. L. 116–283, div. A, title XVIII, §1825(a), (f), Jan. 1, 2021, 134 Stat. 4206, 4207.)

Editorial Notes

References in Text

Section 168 of the Internal Revenue Code of 1986, referred to in subsec. (a)(2)(A), is classified to section 168 of Title 26, Internal Revenue Code.

Codification

The text of subsec. (d) of section 2401 of this title, which was transferred to this section and amended by Pub. L. 116–283, §1825(f), was based on Pub. L. 98–94, title XII, §1202(a)(1), Sept. 24, 1983, 97 Stat. 679; Pub. L. 100–26, §7(h)(1), Apr. 21, 1987, 101 Stat. 282; Pub. L. 109–163, div. A, title VIII, §815(a)(1), Jan. 6, 2006, 119 Stat. 3381.

Amendments

2021—Pub. L. 116–283, §1825(f)(1), transferred subsec. (d) of section 2401 of this title to this section, struck out subsec. (d) designation at beginning, and redesignated pars. (1) and (2) of such former subsec. (d) as subsecs. (a) and (b), respectively.

Subsec. (a). Pub. L. 116–283, §1825(f)(2)(A), (C), (D), (E), after redesignation of section 2401(d)(1) of this title as subsec. (a) of this section, inserted subsec. heading, redesignated subpar. (A)(i) and (ii) and its concluding provisions as par. (1)(A)(i) and (ii) and (B), respectively, redesignated subpar. (B)(i) and (ii) and its concluding provisions as par. (2)(A)(i) and (ii) and (B), respectively, and inserted par. headings.

Subsec. (a)(1)(A). Pub. L. 116–283, §1825(f)(2)(A), (B), substituted "In this chapter" for "In this section" and "paragraph (2)" for "subparagraph (B)" in introductory provisions.

Subsec. (b). Pub. L. 116–283, §1825(f)(3), after redesignation of section 2401(d)(2) of this title as subsec. (b) of this section, inserted heading, substituted "this chapter" for "this section" in introductory provisions, and redesignated subpar. (A) as par. (1) and subpar. (B) and its cls. (i) and (ii) as par. (2) and subpars. (A) and (B), respectively.

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.

§3675. Capital lease or lease-purchase treated as an acquisition

(a) In General.—If a lease or charter covered by this chapter is a capital lease or a lease-purchase—

(1) the lease or charter shall be treated as an acquisition and shall be subject to all applicable statutory and regulatory requirements for the acquisition of aircraft, naval vessels, or combat vehicles; and

(2) funds appropriated to the Department of Defense for operation and maintenance may not be obligated or expended for the lease or charter.

(b) Definitions.—In this section, the terms "capital lease" and "lease-purchase" have the meanings given those terms in Appendix B to Office of Management and Budget Circular A–11, as in effect on January 6, 2006.

(Added and amended Pub. L. 116–283, div. A, title XVIII, §1825(a), (g), Jan. 1, 2021, 134 Stat. 4206, 4208.)

Editorial Notes

Codification

The text of subsec. (f) of section 2401 of this title, which was transferred to this section and amended by Pub. L. 116–283, §1825(g), was based on Pub. L. 109–163, div. A, title VIII, §815(c)(2), Jan. 6, 2006, 119 Stat. 3382; Pub. L. 111–84, div. A, title X, §1073(a)(24), Oct. 28, 2009, 123 Stat. 2473.

Amendments

2021—Pub. L. 116–283, §1825(g)(1)(A), transferred subsec. (f) of section 2401 of this title to this section, struck out subsec. (f) designation at beginning, and redesignated pars. (1) and (2) of such former subsec. (f) as subsecs. (a) and (b), respectively.

Subsec. (a). Pub. L. 116–283, §1825(g)(2), after redesignation of section 2401(f)(1) of this title as subsec. (a) of this section, inserted heading, substituted "this chapter" for "this section" in introductory provisions, and redesignated subpars. (A) and (B) as pars. (1) and (2), respectively.

Subsec. (b). Pub. L. 116–283, §1825(g)(3), after redesignation of section 2401(d)(2) of this title as subsec. (b) of this section, inserted heading and substituted "In this section" for "In this subsection".

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.

§3676. Guidelines

The Director of the Office of Management and Budget and the Secretary of the Treasury shall jointly issue guidelines for determining under what circumstances the Department of Defense may use lease or charter arrangements for aircraft, naval vessels, and combat vehicles rather than directly procuring such aircraft, vessels, and combat vehicles.

(Added and amended Pub. L. 116–283, div. A, title XVIII, §1825(a), (h), Jan. 1, 2021, 134 Stat. 4206, 4208.)

Editorial Notes

Codification

The text of subsec. (g) of section 2401 of this title, which was transferred to this section and amended by Pub. L. 116–283, §1825(h), was based on Pub. L. 98–94, title XII, §1202(a)(1), Sept. 24, 1983, 97 Stat. 679; Pub. L. 98–525, title XII, §1232(a)(2), Oct. 19, 1984, 98 Stat. 2600; Pub. L. 109–163, div. A, title VIII, §815(c)(1), Jan. 6, 2006, 119 Stat. 3382.

Amendments

2021—Pub. L. 116–283, §1825(h), transferred subsec. (g) of section 2401 of this title to this section and struck out subsec. (g) designation at beginning.

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.

§3677. Contracts for lease or use of vessels for a term of greater than two years but less than five years: prior notice to congressional committees

The Secretary of a military department may make a contract for the lease of a vessel or for the provision of a service through use by a contractor of a vessel, the term of which is for a period of greater than two years, but less than five years, only if—

(1) the Secretary has notified the congressional defense committees of the proposed contract and included in such notification—

(A) a detailed description of the terms of the proposed contract and a justification for entering into the proposed contract rather than obtaining the capability provided for by the lease, charter, or services involved through purchase of the vessel;

(B) a determination that entering into the proposed contract as a means of obtaining the vessel is the most cost-effective means of obtaining such vessel; and

(C) a plan for meeting the requirement provided by the proposed contract upon completion of the term of the lease contract; and

(2) a period of 60 days has expired following the date on which notice was received by such committees.

(Added and amended Pub. L. 116–283, div. A, title XVIII, §1825(a), (i), Jan. 1, 2021, 134 Stat. 4206, 4208.)

Editorial Notes

Codification

The text of subsec. (h) of section 2401 of this title, which was transferred to this section and amended by Pub. L. 116–283, §1825(i), was based on Pub. L. 110–181, div. A, title X, §1011, Jan. 28, 2008, 122 Stat. 303; Pub. L. 112–239, div. A, title VIII, §821, title X, §1076(f)(26), Jan. 2, 2013, 126 Stat. 1830, 1953.

Amendments

2021—Pub. L. 116–283, §1825(i), transferred subsec. (h) of section 2401 of this title to this section and struck out subsec. (h) designation at beginning.

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.

§3678. Contracts with terms of 18 months or more: limitation

The Secretary of Defense or the Secretary of a military department may not enter into any contract with a term of 18 months or more, or extend or renew any contract for a term of 18 months or more, for any vessel, aircraft, or vehicle, through a lease, charter, or similar agreement, unless the Secretary has considered all costs of such contract (including estimated termination liability) and has determined in writing that the contract is in the best interest of the Government.

(Added and amended Pub. L. 116–283, div. A, title XVIII, §1825(a), (j), Jan. 1, 2021, 134 Stat. 4206, 4208.)

Editorial Notes

Codification

The text of subsec. (b) of section 2401a of this title, which was transferred to this section and amended by Pub. L. 116–283, §1825(j), was based on Pub. L. 103–355, title III, §3065(a)(1), Oct. 13, 1994, 108 Stat. 3337; Pub. L. 104–106, div. A, title VIII, §807(a)(1)(A), Feb. 10, 1996, 110 Stat. 391.

Prior Provisions

Provisions similar to those in this section were contained in Pub. L. 101–165, title IX, §9081, Nov. 21, 1989, 103 Stat. 1147, which was set out as a note under section 2401 of this title, prior to repeal by Pub. L. 103–355, §3065(b).

Amendments

2021—Pub. L. 116–283, §1825(j), transferred subsec. (b) of section 2401a of this title to this section and struck out subsec. (b) designation and heading "Limitation on Contracts With Terms of 18 Months or More" at beginning.

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.

Leases for Tanker Aircraft Under Multiyear Aircraft-Lease Pilot Program

Pub. L. 107–314, div. A, title I, §133, Dec. 2, 2002, 116 Stat. 2477, provided that: "The Secretary of the Air Force may not enter into a lease for the acquisition of tanker aircraft for the Air Force under section 8159 of the Department of Defense Appropriations Act, 2002 (division A of Public Law 107–117; 115 Stat. 2284; 10 U.S.C. 2401a note [now 10 U.S.C. 3678 note, set out below]) until—

"(1) the Secretary submits the report specified in subsection (c)(6) of such section; and

"(2) either—

"(A) authorization and appropriation of funds necessary to enter into such lease are provided by law; or

"(B) a new start reprogramming notification for the funds necessary to enter into such lease has been submitted in accordance with established procedures."

Multi-Year Aircraft Lease Pilot Program

Pub. L. 107–206, title I, §308, Aug. 2, 2002, 116 Stat. 841, provided that: "During the current fiscal year and hereafter, section 2533a of title 10, United States Code [now 10 U.S.C. 4862], shall not apply to any transaction entered into to acquire or sustain aircraft under the authority of section 8159 of the Department of Defense Appropriations Act, 2002 (division A of Public Law 107–117; 115 Stat. 2284) [set out below]."

Pub. L. 107–117, div. A, title VIII, §8159, Jan. 10, 2002, 115 Stat. 2284, as amended by Pub. L. 107–248, title VIII, §8117, Oct. 23, 2002, 116 Stat. 1564; Pub. L. 113–76, div. C, title VIII, §8122, Jan. 17, 2014, 128 Stat. 133, provided that:

"(a) The Secretary of the Air Force may, from funds provided in this Act [see Tables for classification] or any future appropriations Act, establish and make payments on a multi-year pilot program for leasing general purpose Boeing 767 aircraft and Boeing 737 aircraft in commercial configuration.

"(b) Sections 2401 [see 10 U.S.C. 3671 et seq.] and 2401a [see 10 U.S.C. 3678, 3681] of title 10, United States Code, shall not apply to any aircraft lease authorized by this section.

"(c) Under the aircraft lease Pilot Program authorized by this section:

"(1) The Secretary may include terms and conditions in lease agreements that are customary in aircraft leases by a non-Government lessor to a non-Government lessee, but only those that are not inconsistent with any of the terms and conditions mandated herein. Notwithstanding the provisions of Section [sic] 3324 of Title 31, United States Code, payment for the acquisition of leasehold interests under this section may be made for each annual term up to one year in advance.

"(2) The term of any individual lease agreement into which the Secretary enters under this section shall not exceed 10 years, inclusive of any options to renew or extend the initial lease term.

"(3) The Secretary may provide for special payments in a lessor if the Secretary terminates or cancels the lease prior to the expiration of its term. Such special payments shall not exceed an amount equal to the value of 1 year's lease payment under the lease.

"(4) Subchapter IV of chapter 15 of title 31, United States Code shall apply to the lease transactions under this section, except that the limitation in section 1553(b)(2) shall not apply.

"(5) The Secretary shall lease aircraft under terms and conditions consistent with this section and consistent with the criteria for an operating lease as defined in OMB Circular A–11, as in effect at the time of the lease.

"(6) Lease arrangements authorized by this section may not commence until:

"(A) The Secretary submits a report to the congressional defense committees [Committees on Armed Services of the Senate and the House of Representatives and Subcommittees on Defense of the Committees on Appropriations of the Senate and the House of Representatives] outlining the plans for implementing the Pilot Program. The report shall describe the terms and conditions of proposed contracts and describe the expected savings, if any, comparing total costs, including operation, support, acquisition, and financing, of the lease, including modification, with the outright purchase of the aircraft as modified.

"(B) A period of not less than 30 calendar days has elapsed after submitting the report.

"[(7) Repealed. Pub. L. 113–76, div. C, title VIII, §8122, Jan. 17, 2014, 128 Stat. 133.]

"(8) The Air Force shall accept delivery of the aircraft in a general purpose configuration.

"(9) At the conclusion of the lease term, each aircraft obtained under that lease may be returned to the contractor in the same configuration in which the aircraft was delivered.

"(10) The present value of the total payments over the duration of each lease entered into under this authority shall not exceed 90 percent of the fair market value of the aircraft obtained under that lease.

"(d) No lease entered into under this authority shall provide for—

"(1) the modification of the general purpose aircraft from the commercial configuration, unless and until separate authority for such conversion is enacted and only to the extent budget authority is provided in advance in appropriations Acts for that purpose; or

"(2) the purchase of the aircraft by, or the transfer of ownership to, the Air Force.

"(e) The authority granted to the Secretary of the Air Force by this section is separate from and in addition to, and shall not be construed to impair or otherwise affect, the authority of the Secretary to procure transportation or enter into leases under a provision of law other than this section.

"(f) The authority provided under this section may be used to lease not more than a total of 100 Boeing 767 aircraft and 4 Boeing 737 aircraft for the purposes specified herein.

"(g) Notwithstanding any other provision of law, any payments required for a lease entered into under this Section, or any payments made pursuant to subsection (c)(3) above, may be made from appropriations available for operation and maintenance or for lease or procurement of aircraft at the time that the lease takes effect; appropriations available for operation and maintenance or for lease or procurement of aircraft at the time that the payment is due; or funds appropriated for those payments."

Lease of Firefighting, Crash Rescue, and Snow Removal Equipment

Pub. L. 105–262, title VIII, §8126, Oct. 17, 1998, 112 Stat. 2333, provided that:

"(a) The Secretary of the Army and the Secretary of the Air Force may each enter into one or more multiyear leases of nontactical firefighting equipment, nontactical crash rescue equipment, or nontactical snow removal equipment. The period of a lease entered into under this section shall be for any period not in excess of 10 years. Any such lease shall provide that performance under the lease during the second and subsequent years of the contract is contingent upon the appropriation of funds and shall provide for a cancellation payment to be made to the lessor if such appropriations are not made.

"(b) Lease payments made under subsection (a) shall be made from amounts provided in this or future appropriations Acts.

"(c) This section is effective for all fiscal years beginning after September 30, 1998."

CHAPTER 258—OTHER TYPES OF CONTRACTS USED FOR PROCUREMENTS FOR PARTICULAR PURPOSES

        

§3681. Leasing of commercial vehicles and equipment

The Secretary of Defense may use leasing in the acquisition of commercial vehicles and equipment whenever the Secretary determines that such leasing is practicable and efficient.

(Added and amended Pub. L. 116–283, div. A, title XVIII, §1825(a), (k), Jan. 1, 2021, 134 Stat. 4206, 4208.)

Editorial Notes

Codification

The text of subsec. (a) of section 2401a of this title, which was transferred to this section and amended by Pub. L. 116–283, §1825(k), was based on Pub. L. 104–106, div. A, title VIII, §807(a)(1)(B), Feb. 10, 1996, 110 Stat. 391; Pub. L. 105–85, div. A, title X, §1073(a)(52), Nov. 18, 1997, 111 Stat. 1903.

Prior Provisions

A prior section 3681 was renumbered section 7251 of this title.

Another prior section 3681, act Aug. 10, 1956, ch. 1041, 70A Stat. 210, related to service listed in the official Army Register, prior to repeal by Pub. L. 85–861, §36B(9), Sept. 2, 1958, 72 Stat. 1570. See section 122 of this title.

A prior section 3682, act Aug. 10, 1956, ch. 1041, 70A Stat. 210, provided that in computing length of service, no commissioned officer of the Army could be credited with service as a cadet at the Military Academy or as a midshipman at the Naval Academy, if he was appointed as a cadet or midshipman after Aug. 24, 1912, prior to repeal by Pub. L. 90–235, §6(a)(2), Jan. 2, 1968, 81 Stat. 761. See section 971 of this title.

A prior section 3683, acts Aug. 10, 1956, ch. 1041, 70A Stat. 210; Aug. 25, 1959, Pub. L. 86–197, §1(4), 73 Stat. 426, related to service credit for certain service as a nurse, woman medical specialist, or civilian employee of Army Medical Department, prior to repeal by Pub. L. 99–145, title XIII, §1301(b)(1)(A), Nov. 8, 1985, 99 Stat. 735. Pub. L. 99–145, title XIII, §1301(b)(1)(C), Nov. 8, 1985, 99 Stat. 735, provided that such repeal would not apply in the case of a person who performed active service described in section 3683 of this title as that section was in effect on the day before Nov. 8, 1985.

A prior section 3684 was renumbered section 7252 of this title.

A prior section 3685, acts Aug. 10, 1956, ch. 1041, 70A Stat. 211; Sept. 2, 1958, Pub. L. 85–861, §1(89), 72 Stat. 1482, set forth restrictions on the consideration of a husband or child as the dependent of a female member of the Regular Army, Army National Guard of the United States or Army Reserve, prior to repeal by Pub. L. 90–235, §7(a)(3), Jan. 2, 1968, 81 Stat. 763.

A prior section 3686, acts Aug. 10, 1956, ch. 1041, 70A Stat. 211; Sept. 24, 1980, Pub. L. 96–357, §5(a), 94 Stat. 1182; Oct. 19, 1984, Pub. L. 98–525, title IV, §414(a)(7)(A), 98 Stat. 2519, related to credit to members of Army National Guard of United States for service as members of Army National Guard, prior to repeal by Pub. L. 103–337, div. A, title XVI, §§1662(g)(2), 1691, Oct. 5, 1994, 108 Stat. 2996, 3026, effective Dec. 1, 1994. See section 12602 of this title.

A prior section 3687, acts Aug. 10, 1956, ch. 1041, 70A Stat. 212; Sept. 2, 1958, Pub. L. 85–861, §1(90), 72 Stat. 1482; Sept. 7, 1962, Pub. L. 87–649, §6(d), 76 Stat. 494, related to compensation for members of Army other than of Regular Army, prior to repeal by Pub. L. 99–661, div. A, title VI, §604(f)(1)(A), (g), Nov. 14, 1986, 100 Stat. 3877, 3878, applicable with respect to persons who, after Nov. 14, 1986, incur or aggravate an injury, illness, or disease or die.

A prior section 3688, act Aug. 10, 1956, ch. 1041, 70A Stat. 212, related to payment of death gratuity to survivors of members of the Army, prior to repeal by Pub. L. 85–861, §36B(10), Sept. 2, 1958, 72 Stat. 1570. See section 1475 et seq. of this title.

A prior section 3689, acts Aug. 10, 1956, ch. 1041, 70A Stat. 213; Sept. 26, 1961, Pub. L. 87–304, §9(c), 75 Stat. 665, related to assignments and allotments of pay, prior to repeal by Pub. L. 87–649, §§14c(9), 15, Sept. 7, 1962, 76 Stat. 501, 502, effective Nov. 1, 1962. See section 701 of Title 37, Pay and Allowances of the Uniformed Services.

A prior section 3690, act Aug. 10, 1956, ch. 1041, 70A Stat. 213, exempted enlisted members of the Army, while on active duty, from arrest for any debt, unless it was contracted before enlistment and amounted to at least $20 when first contracted, prior to repeal by Pub. L. 90–235, §7(b)(1), Jan. 2, 1968, 81 Stat. 763.

Prior section 3691 was renumbered section 7253 of this title.

A prior section 3692, act Aug. 10, 1956, ch. 1041, 70A Stat. 213, provided qualifications to receive a rating as a pilot in time of peace, prior to repeal by Pub. L. 92–168, §1(1), Nov. 24, 1971, 85 Stat. 489. See section 2003 of this title.

A prior section 3693, act Aug. 10, 1956, ch. 1041, 70A Stat. 214, provided for replacement of a lost or destroyed certificate of discharge from Army, prior to repeal by Pub. L. 90–235, §7(a)(3), Jan. 2, 1968, 81 Stat. 763. See section 1041 of this title.

Amendments

2021—Pub. L. 116–283, §1825(k), transferred subsec. (a) of section 2401a of this title to this section and struck out subsec. (a) designation and heading "Leasing of Commercial Vehicles and Equipment" at beginning.

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.

Subpart D—General Contracting Provisions

Editorial Notes

Amendments

2021—Pub. L. 117–81, div. A, title XVII, §1701(h)(1), Dec. 27, 2021, 135 Stat. 2140, amended subpart heading generally. Prior to amendment, heading read as follows: "General Contracting Requirements".

2018—Pub. L. 115–232, div. A, title VIII, §801(a), Aug. 13, 2018, 132 Stat. 1828, added subpart heading.

Statutory Notes and Related Subsidiaries

Pilot Program To Accelerate Contracting and Pricing Processes

Pub. L. 115–232, div. A, title VIII, §890, Aug. 13, 2018, 132 Stat. 1919, as amended by Pub. L. 116–92, div. A, title VIII, §825, Dec. 20, 2019, 133 Stat. 1491; Pub. L. 116–283, div. A, title XVIII, §1831(j)(7), Jan. 1, 2021, 134 Stat. 4217; Pub. L. 117–263, div. A, title VIII, §818, Dec. 23, 2022, 136 Stat. 2708; Pub. L. 118–31, div. A, title VIII, §841, Dec. 22, 2023, 137 Stat. 339, provided that:

"(a) In General.—The Secretary of Defense shall establish a pilot program to reform and accelerate the contracting and pricing processes associated with contracts in excess of $50,000,000 by—

"(1) basing price reasonableness determinations on actual cost and pricing data for purchases of the same or similar products for the Department of Defense; and

"(2) reducing the cost and pricing data to be submitted in accordance with chapter 271 of title 10, United States Code.

"(b) Implementation Guidance.—The Secretary, acting through the Under Secretary of Defense for Acquisition and Sustainment, shall ensure that each senior contracting official (as defined in section 1737 of title 10, United States Code) for a contract described in subsection (a) has the discretion to implement the pilot program under this section efficiently and effectively by ensuring the following:

"(1) That the pilot program does not include any preferences for contract type or specific contract requirements.

"(2) That each Secretary of a military department has minimal reporting requirements to the Under Secretary of Defense for Acquisition and Sustainment with respect to the pilot program.

"(c) Report.—Not later than January 30, 2021, the Secretary of Defense shall submit to the congressional defense committees [Committees on Armed Services and Appropriations of the Senate and the House of Representatives] a report on the results of the pilot program authorized under subsection (a).

"(d) Sunset.—The authority to carry out the pilot program under this section shall expire on January 2, 2028."

Guidance and Training Related to Evaluating Reasonableness of Price

Pub. L. 112–239, div. A, title VIII, §831, Jan. 2, 2013, 126 Stat. 1842, provided that:

"(a) Guidance.—Not later than 180 days after the date of the enactment of this Act [Jan. 2, 2013], the Under Secretary of Defense for Acquisition, Technology, and Logistics shall issue guidance on the use of the authority provided by sections 2306a(d) [now 10 U.S.C. 3705] and 2379 [now 10 U.S.C. 3455] of title 10, United States Code. The guidance shall—

"(1) include standards for determining whether information on the prices at which the same or similar items have previously been sold is adequate for evaluating the reasonableness of price;

"(2) include standards for determining the extent of uncertified cost information that should be required in cases in which price information is not adequate for evaluating the reasonableness of price;

"(3) ensure that in cases in which such uncertified cost information is required, the information shall be provided in the form in which it is regularly maintained by the offeror in its business operations; and

"(4) provide that no additional cost information may be required by the Department of Defense in any case in which there are sufficient non-Government sales to establish reasonableness of price.

"(b) Training and Expertise.—Not later than 270 days after the date of the enactment of this Act, the Under Secretary of Defense for Acquisition, Technology, and Logistics shall develop and begin implementation of a plan of action to—

"(1) train the acquisition workforce on the use of the authority provided by sections 2306a(d) [now 10 U.S.C. 3705] and 2379 [now 10 U.S.C. 3455] of title 10, United States Code, in evaluating reasonableness of price in procurements of commercial items; and

"(2) develop a cadre of experts within the Department of Defense to provide expert advice to the acquisition workforce in the use of the authority provided by such sections in accordance with the guidance issued pursuant to subsection (a).

"(c) Documentation Requirements.—The Under Secretary of Defense for Acquisition, Technology, and Logistics shall ensure that requests for uncertified cost information for the purposes of evaluating reasonableness of price are sufficiently documented. The Under Secretary shall require that the contract file include, at a minimum, the following:

"(1) A justification of the need for additional cost information.

"(2) A copy of any request from the Department of Defense to a contractor for additional cost information.

"(3) Any response received from the contractor to the request, including any rationale or justification provided by the contractor for a failure to provide the requested information.

"(d) Comptroller General Review and Report.—

"(1) Review requirement.—The Comptroller General of the United States shall conduct a review of data collected pursuant to sections 2306a(d) [now 10 U.S.C. 3705] and 2379 [now 10 U.S.C. 3455] of title 10, United States Code, during the two-year period beginning on the date of the enactment of this Act.

"(2) Report requirement.—Not later than 180 days after the end of the two-year period referred to in paragraph (1), the Comptroller General shall submit to the congressional defense committees [Committees on Armed Services and Appropriations of the Senate and the House of Representatives] a report on—

"(A) the extent to which the Department of Defense needed access to additional cost information pursuant to sections 2306a(d) [now 10 U.S.C. 3705] and 2379 [now 10 U.S.C. 3455] of title 10, United States Code, during such two-year period in order to determine price reasonableness;

"(B) the extent to which acquisition officials of the Department of Defense complied with the guidance issued pursuant to subsection (a) during such two-year period;

"(C) the extent to which the Department of Defense needed access to additional cost information during such two-year period to determine reasonableness of price, but was not provided such information by the contractor on request; and

"(D) recommendations for improving evaluations of reasonableness of price by Department of Defense acquisition professionals, including recommendations for any amendments to law, regulations, or guidance."

Grants of Exceptions to Cost or Pricing Data Certification Requirements and Waivers of Cost Accounting Standards

Pub. L. 107–314, div. A, title VIII, §817, Dec. 2, 2002, 116 Stat. 2610, as amended by Pub. L. 112–81, div. A, title VIII, §809(a), Dec. 31, 2011, 125 Stat. 1490; Pub. L. 113–291, div. A, title X, §1071(b)(7), Dec. 19, 2014, 128 Stat. 3507; Pub. L. 115–91, div. A, title X, §1051(j), Dec. 12, 2017, 131 Stat. 1563; Pub. L. 115–232, div. A, title VIII, §§825, 836(f)(4), Aug. 13, 2018, 132 Stat. 1856, 1871, provided that:

"(a) Guidance for Exceptions in Exceptional Circumstances.—Not later than 60 days after the date of the enactment of this Act [Dec. 2, 2002], the Secretary of Defense shall issue guidance on the circumstances under which it is appropriate to grant an exceptional case exception or waiver with respect to certified cost and pricing data and cost accounting standards.

"(b) Determination Required for Exceptional Case Exception or Waiver.—The guidance shall, at a minimum, include a limitation that a grant of an exceptional case exception or waiver is appropriate with respect to a contract, subcontract, or (in the case of submission of certified cost and pricing data) modification only upon a determination that—

"(1) the property or services cannot reasonably be obtained under the contract, subcontract, or modification, as the case may be, without the grant of the exception or waiver;

"(2) the price can be determined to be fair and reasonable without the submission of certified cost and pricing data or the application of cost accounting standards, as the case may be; or

"(3) there are demonstrated benefits to granting the exception or waiver.

"(c) Applicability of New Guidance.—The guidance issued under subsection (a) shall apply to each exceptional case exception or waiver that is granted on or after the date on which the guidance is issued.

"(d) Definitions.—In this section:

"(1) The term 'exceptional case exception or waiver' means either of the following:

"(A) An exception pursuant to section 2306a(b)(1)(C) of title 10, United States Code [now 10 U.S.C. 3703(a)(3)], relating to submission of certified cost and pricing data.

"(B) A waiver pursuant to section 1502(b)(3)(B) of title 41, United States Code, relating to the applicability of cost accounting standards to contracts and subcontracts.

"(2) The term 'commercial product-commercial service exception' means an exception pursuant to section 2306a(b)(1)(B) of title 10, United States Code [now 10 U.S.C. 3703(a)(2)], relating to submission of certified cost and pricing data."

[Section 836(f)(4)(A) of Pub. L. 115–232, which directed amendment of section 817(d)(1) of Pub. L. 107–314, set out above, by substituting "commercial product-commercial service exceptions" for "commercial item exceptions", could not be executed because those words did not appear subsequent to amendment by section 1051(j) of Pub. L. 115–91.]

CHAPTER 271—TRUTHFUL COST OR PRICING DATA (TRUTH IN NEGOTIATIONS)

        

Editorial Notes

Prior Provisions

A prior chapter 271, "TRUTHFUL COST OR PRICING DATA", as added by Pub. L. 115–232, div. A, title VIII, §801(a), Aug. 13, 2018, 132 Stat. 1828, and consisting of reserved section 3701, was repealed by Pub. L. 116–283, div. A, title XVIII, §1831(a), Jan. 1, 2021, 134 Stat. 4208.

§3701. Definitions

In this chapter:

(1) Cost or pricing data.—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 3706(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. Such term does not include information that is judgmental, but does include the factual information from which a judgment was derived.

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

(Added and amended Pub. L. 116–283, div. A, title XVIII, §1831(a), (b), Jan. 1, 2021, 134 Stat. 4209; Pub. L. 117–81, div. A, title XVII, §1701(b)(10)(A), Dec. 27, 2021, 135 Stat. 2133.)

Editorial Notes

Codification

The text of subsec. (h) of section 2306a of this title, which was transferred to this section and amended by Pub. L. 116–283, §1831(b), was based on Pub. L. 99–500, §101(c) [title X, §952(a)], Oct. 18, 1986, 100 Stat. 1783–82, 1783-166, and Pub. L. 99–591, §101(c) [title X, §952(a)], Oct. 30, 1986, 100 Stat. 3341–82, 3341-166; Pub. L. 99–661, div. A, title IX, formerly title IV, §952(a), Nov. 14, 1986, 100 Stat. 3945, renumbered title IX, Pub. L. 100–26, §3(5), Apr. 21, 1987, 101 Stat. 273; Pub. L. 100–180, div. A, title VIII, §804(a), Dec. 4, 1987, 101 Stat. 1125; Pub. L. 103–355, title I, §§1204(1), 1208, Oct. 13, 1994, 108 Stat. 3275, 3277; Pub. L. 104–106, div. D, title XLII, §4201(a)(2)(B), Feb. 10, 1996, 110 Stat. 651; Pub. L. 111–350, §5(b)(15), Jan. 4, 2011, 124 Stat. 3843; Pub. L. 115–232, div. A, title VIII, §836(c)(5)(C), Aug. 13, 2018, 132 Stat. 1865. Pub. L. 99–500, Pub. L. 99–591, and Pub. L. 99–661 added identical sections. Pub. L. 99–591 is a corrected version of Pub. L. 99–500.

Amendments

2021—Pub. L. 116–283, §1831(b), as amended by Pub. L. 117–81, §1701(b)(10)(A), transferred subsec. (h) of section 2306a of this title to this section, struck out subsec. (h) designation and heading "Definitions" at beginning, and substituted "this chapter" for "this section" in introductory provisions and "section 3706(a)(2) of this title" for "subsection (e)(1)(B)" in par. (1).

Statutory Notes and Related Subsidiaries

Effective Date of 2021 Amendment

Amendment by Pub. L. 117–81 applicable as if included in the enactment of title XVIII of Pub. L. 116–283 as enacted, see section 1701(a)(2) of Pub. L. 117–81, set out in a note preceding section 3001 of this title and Effective Date note below.

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.

§3702. Required cost or pricing data and certification

(a) When Required.—The head of an agency shall require offerors, contractors, and subcontractors to make cost or pricing data available as follows:

(1) Offeror for prime contract.—An offeror for a prime contract under a chapter 137 legacy provision to be entered into using procedures other than sealed-bid procedures that is only expected to receive one bid shall be required to submit cost or pricing data before the award of a contract if—

(A) in the case of a prime contract entered into after June 30, 2018, the price of the contract to the United States is expected to exceed $2,000,000; and

(B) in the case of a prime contract entered into on or before June 30, 2018, the price of the contract to the United States is expected to exceed $750,000.

(2) Contractor.—The contractor for a prime contract under a chapter 137 legacy provision shall be required to submit cost or pricing data before the pricing of a change or modification to the contract if the price adjustment is expected to exceed $2,000,000.

(3) Offeror for subcontract.—(A) An offeror for a subcontract (at any tier) of a contract under this chapter shall be required to submit cost or pricing data before the award of the subcontract if the prime contractor and each higher-tier subcontractor have been required to make available cost or pricing data under this chapter and the price of the subcontract is expected to exceed $2,000,000.

(B)(i) An offeror for a subcontract (at any tier) of a contract under this chapter that is required to submit cost or pricing data under subparagraph (A) with respect to such subcontract may submit prices paid for the covered goods and services of such offeror for such subcontract under this clause if—

(I) such offeror is a nontraditional defense contractor (as defined in section 3014 of this title);

(II) the prices to be submitted are prices that were paid for the same goods and services as such covered goods and services; and

(III) the price of such subcontract is not expected to exceed $5,000,000.

(ii) The submission of prices paid under clause (i) by an offereor with respect to a subcontract shall be deemed to be the submission of cost or pricing data by such offeror with respect to such subcontract as required by subparagraph (A) if a contracting officer of the Department of Defense determines that the prices submitted under such clause are fair and reasonable based on supported cost or pricing data within the last 12 months.

(iii) In this subparagraph, the term "covered goods and services" means, with respect to an offeror for a subcontract (at any tier), the goods and services such offeror would provide under such subcontract.

(4) Subcontractor.—The subcontractor for a subcontract covered by paragraph (3) shall be required to submit cost or pricing data before the pricing of a change or modification to the subcontract if the price adjustment is expected to exceed $2,000,000.

(b) Certification.—A person required, as an offeror, contractor, or subcontractor, to submit cost or pricing data under subsection (a) (or required by the head of the agency concerned to submit such data under section 3704 of this title) shall be required to certify that, to the best of the person's knowledge and belief, the cost or pricing data submitted are accurate, complete, and current.

(c) To Whom Submitted.—Cost or pricing data required to be submitted under subsection (a) (or under section 3704 of this title), and a certification required to be submitted under subsection (b), shall be submitted—

(1) in the case of a submission by a prime contractor (or an offeror for a prime contract), to the contracting officer for the contract (or to a designated representative of the contracting officer); or

(2) in the case of a submission by a subcontractor (or an offeror for a subcontract), to the prime contractor.

(d) Applicability of Chapter.—Except as provided under section 3703 of this title, this chapter applies to contracts entered into by the head of an agency on behalf of a foreign government.

(e) Subcontracts Not Affected by Waiver.—A waiver of requirements for submission of certified cost or pricing data that is granted under section 3703(a)(3) of this title in the case of a contract or subcontract does not waive the requirement under subsection (a)(3) for submission of cost or pricing data in the case of subcontracts under that contract or subcontract unless the head of the procuring activity granting the waiver determines that the requirement under that subsection should be waived in the case of such subcontracts and justifies in writing the reasons for the determination.

(f) Modifications to Prior Contracts.—Under subsection (a), in connection with a prime contract entered into on or before June 30, 2018, the head of the agency that entered into such contract shall modify the contract as soon as practicable to reflect paragraphs (1) and (2) of such subsection, without requiring consideration.

(g) Adjustment of Amounts.—Effective on October 1 of each year that is divisible by 5, each amount set forth in subsection (a) shall be adjusted in accordance with section 1908 of title 41.

(Added and amended Pub. L. 116–283, div. A, title XVIII, §1831(a), (c), Jan. 1, 2021, 134 Stat. 4209; Pub. L. 117–81, div. A, title VIII, §804(b), title XVII, §1701(b)(10)(B)–(G), (c)(3), Dec. 27, 2021, 135 Stat. 1816, 2133, 2134, 2136; Pub. L. 118–31, div. A, title XVIII, §1801(a)(29), Dec. 22, 2023, 137 Stat. 684; Pub. L. 118–159, div. A, title VIII, §815, Dec. 23, 2024, 138 Stat. 1980.)

Editorial Notes

Codification

The text of subsec. (a) of section 2306a of this title, which was transferred to this section and amended by Pub. L. 116–283, §1831(c), was based on Pub. L. 99–500, §101(c) [title X, §952(a)], Oct. 18, 1986, 100 Stat. 1783–82, 1783-166, and Pub. L. 99–591, §101(c) [title X, §952(a)], Oct. 30, 1986, 100 Stat. 3341–82, 3341-166; Pub. L. 99–661, div. A, title IX, formerly title IV, §952(a), Nov. 14, 1986, 100 Stat. 3945, renumbered title IX, Pub. L. 100–26, §3(5), Apr. 21, 1987, 101 Stat. 273; Pub. L. 100–180, div. A, title VIII, §804(b)(1), Dec. 4, 1987, 101 Stat. 1125; Pub. L. 101–510, div. A, title VIII, §803(a)(1), Nov. 5, 1990, 104 Stat. 1589; Pub. L. 102–25, title VII, §701(b), Apr. 6, 1991, 105 Stat. 113; Pub. L. 102–190, div. A, title VIII, §804(a)–(c)(1), Dec. 5, 1991, 105 Stat. 1415, 1416; Pub. L. 103–355, title I, §§1201, 1202(b), Oct. 13, 1994, 108 Stat. 3273, 3274; Pub. L. 105–85, div. A, title X, §1073(a)(46), Nov. 18, 1997, 111 Stat. 1902; Pub. L. 105–261, div. A, title VIII, §805(a), Oct. 17, 1998, 112 Stat. 2083; Pub. L. 114–328, div. A, title VIII, §822(1), Dec. 23, 2016, 130 Stat. 2276; Pub. L. 115–91, div. A, title VIII, §811(a)(1), Dec. 12, 2017, 131 Stat. 1459; Pub. L. 116–283, div. A, §814(a)(1), Jan. 1, 2021, 134 Stat. 3479; Pub. L. 117–81, div. A, title VIII, §804(a), Dec. 27, 2021, 135 Stat. 1816. Pub. L. 99–500, Pub. L. 99–591, and Pub. L. 99–661 added identical sections. Pub. L. 99–591 is a corrected version of Pub. L. 99–500.

Amendments

2024—Subsec. (a)(3). Pub. L. 118–159 designated existing provisions as subpar. (A) and added subpar. (B).

2023—Subsec. (a)(4). Pub. L. 118–31, §1801(a)(29)(A), substituted "paragraph (3)" for "subparagraph (C)".

Subsec. (f). Pub. L. 118–31, §1801(a)(29)(B), substituted "paragraphs (1) and (2) of such subsection" for "subparagraphs (B) and (C) of such paragraph".

2021—Pub. L. 116–283, §1831(c)(1), (2)(A), transferred subsec. (a) of section 2306a of this title to this section and redesignated pars. (1) to (7) of such former subsec. (a) as subsecs. (a) to (g), respectively.

Subsec. (a). Pub. L. 116–283, §1831(c)(2)(A), (B), (3), as amended by Pub. L. 117–81, §1701(b)(10)(B), after redesignation of section 2306a(a)(1) of this title as subsec. (a) of this section, substituted "When Required" for "Required Cost or Pricing Data and Certification" in heading, redesignated subpars. (A) to (D) as pars. (1) to (4), respectively, and substituted "a prime contract under a chapter 137 legacy provision" for "a prime contract under this chapter" in introductory provisions of pars. (1) and (2).

Subsec. (a)(1). Pub. L. 116–283, §1831(c)(2)(C), inserted heading and redesignated cls. (i) and (ii) as subpars. (A) and (B), respectively.

Subsec. (a)(2). Pub. L. 116–283, §1831(c)(2)(D)(ii)–(v), which directed amendment of par. (2) by redesignating cls. (i) to (iii) as subpars. (A) to (C), respectively, and making further substitutions in text and which could not be executed, was repealed by Pub. L. 117–81, §1701(b)(10)(C)(i).

Pub. L. 116–283, §1831(c)(2)(D), as amended by Pub. L. 117–81, §1701(b)(10)(C)(ii), inserted heading.

Subsec. (a)(3). Pub. L. 117–81, §1701(c)(3)(A), substituted "under this chapter" for "under this section".

Pub. L. 116–283, §1831(c)(2)(E)(ii)–(v), which directed amendment of par. (3) by redesignating cls. (i) to (iii) as subpars. (A) to (C), respectively, and making further substitutions in text and which could not be executed, was repealed by Pub. L. 117–81, §1701(b)(10)(D)(i).

Pub. L. 116–283, §1831(c)(2)(E), as amended by Pub. L. 117–81, §1701(b)(10)(D)(ii), (iii), inserted heading.

Subsec. (a)(4). Pub. L. 116–283, §1831(c)(2)(F)(ii), (iv), (v), which directed amendment of par. (4) by redesignating cls. (i) and (ii) as subpars. (A) and (B), respectively, and making further substitutions in text and which could not be executed, was repealed by Pub. L. 117–81, §1701(b)(10)(E)(i).

Pub. L. 116–283, §1831(c)(2)(F)(iii), which directed substitution of "paragraph (3)" for "subparagraph (C)" in introductory provisions of par. (4) and which could not be executed as directed but could be executed in text of par. (4), was repealed by Pub. L. 117–81, §1701(b)(10)(E)(i).

Pub. L. 116–283, §1831(c)(2)(F), as amended by Pub. L. 117–81, §1701(b)(10)(E)(ii), (iii), inserted heading.

Subsec. (b). Pub. L. 116–283, §1831(c)(4), as amended by Pub. L. 117–81, §1701(b)(10)(F), after redesignation of section 2306a(a)(2) of this title as subsec. (b) of this section, inserted heading and substituted "subsection (a)" for "paragraph (1)" and "section 3704 of this title" for "subsection (c)".

Subsec. (c). Pub. L. 116–283, §1831(c)(5), after redesignation of section 2306a(a)(3) of this title as subsec. (c) of this section, inserted heading, redesignated subpars. (A) and (B) as pars. (1) and (2), respectively, and, in introductory provisions, substituted "subsection (a) (or under section 3704 of this title)" for "paragraph (1) (or under subsection (c))" and "subsection (b)" for "paragraph (2)".

Subsec. (d). Pub. L. 117–81, §1701(c)(3)(B), substituted "this chapter" for "this section".

Pub. L. 116–283, §1831(c)(6), after redesignation of section 2306a(a)(4) of this title as subsec. (d) of this section, inserted heading and substituted "section 3703 of this title" for "subsection (b)".

Subsec. (e). Pub. L. 116–283, §1831(c)(7), after redesignation of section 2306a(a)(5) of this title as subsec. (e) of this section, inserted heading and substituted "section 3703(a)(3) of this title" for "subsection (b)(1)(C)", "subsection (a)(3)" for "paragraph (1)(C)", and "that subsection" for "that paragraph".

Subsec. (f). Pub. L. 116–283, §1831(c)(8)(D), which directed substitution of "paragraphs (2)(B) and (3)(B) of subsection (a)" for "subparagraphs (B)(ii) and (C)(ii) of paragraph (1)", could not be executed because the phrase "subparagraphs (B)(ii) and (C)(ii) of paragraph (1)" did not appear after the intervening amendment made by Pub. L. 117–81, §804(a), to subsec. (a)(6) of section 2306a of this title prior to its transfer to subsec. (f) of this section.

Pub. L. 116–283, §1831(c)(8)(C), which directed substitution of "that subsection" for "that paragraph" and could not be executed, was repealed by Pub. L. 117–81, §1701(b)(10)(G).

Pub. L. 116–283, §1831(c)(8)(B), substituted "subsection (a)" for "paragraph (1)".

Pub. L. 116–283, §1831(c)(8)(A), as amended by Pub. L. 117–81, §804(b), inserted heading.

Subsec. (g). Pub. L. 116–283, §1831(c)(9), after redesignation of section 2306a(a)(7) of this title as subsec. (g) of this section, inserted heading and substituted "subsection (a)" for "paragraph (1)".

Statutory Notes and Related Subsidiaries

Effective Date of 2021 Amendment

Amendment by section 1701(b)(10)(B)–(G) of Pub. L. 117–81 applicable as if included in the enactment of title XVIII of Pub. L. 116–283 as enacted, see section 1701(a)(2) of Pub. L. 117–81, set out in a note preceding section 3001 of this title and Effective Date note below.

Amendment by section 1701(c)(3) of Pub. L. 117–81 to take effect immediately after the amendments made by title XVIII of Pub. L. 116–283 have taken effect, see section 1701(a)(3) of Pub. L. 117–81, set out in a note preceding section 3001 of this title and Effective Date note below.

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.

Data Collection

Pub. L. 117–81, div. A, title VIII, §862(b), Dec. 27, 2021, 135 Stat. 1852, provided that: "The Secretary of Defense shall develop and implement a plan to collect and analyze data on the use of authority under such section 873 [of Pub. L. 114–92, set out below] for the purposes of—

"(1) developing and sharing best practices; and

"(2) providing information to the Secretary of Defense and Congress on the use of authority under such section 873 and related policy issues."

Pilot Program for Streamlining Awards for Innovative Technology Projects

Pub. L. 114–92, div. A, title VIII, §873(a)–(g), Nov. 25, 2015, 129 Stat. 939, 940, as amended by Pub. L. 114–328, div. A, title VIII, §896, Dec. 23, 2016, 130 Stat. 2326; Pub. L. 116–283, div. A, title VIII, §832, Jan. 1, 2021, 134 Stat. 3753; Pub. L. 117–81, div. A, title VIII, §862(a), Dec. 27, 2021, 135 Stat. 1852; Pub. L. 118–159, div. A, title VIII, §863, Dec. 23, 2024, 138 Stat. 2001, provided that:

"(a) Exception From Certified Cost and Pricing Data Requirements.—The requirements under section 2306a(a) of title 10, United States Code [now 10 U.S.C. 3702], shall not apply to a contract, subcontract, or modification of a contract or subcontract valued at less than $7,500,000 awarded to a small business or nontraditional defense contractor pursuant to—

"(1) a technical, merit-based selection procedure, such as a broad agency announcement, or

"(2) the Small Business Innovation Research Program, a multiyear contract (as defined in section 3501 of title 10, United States Code), a block buy or multi-ship buy authorized by Congress, or the or [sic] Small Business Technology Transfer Program,

unless the head of the agency determines that submission of cost and pricing data should be required based on past performance of the specific small business or nontraditional defense contractor, or based on analysis of other information specific to the award.

"(b) Exception From Records Examination Requirement.—The requirements under subparagraphs (A), (B), and (C) of section 2313(a)(2) of title 10, United States Code [now 10 U.S.C. 3841(b)(2)(A)–(C)], and subsection (b) of section 2313 of title 10, United States Code [now 10 U.S.C. 3841(c)], shall not apply to a contract valued at less than $7,500,000 awarded to a small business or nontraditional defense contractor pursuant to—

"(1) a technical, merit-based selection procedure, such as a broad agency announcement, or

"(2) the Small Business Innovation Research Program,

unless the head of the agency determines that auditing of records should be required based on past performance of the specific small business or nontraditional defense contractor, or based on analysis of other information specific to the award, and if such performance audit is initiated within 18 months of the contract completion.

"(c) Treatment as Competitive Procedures.—Use of a technical, merit-based selection procedure or the Small Business Innovation Research Program or Small Business Technology Transfer Program for the pilot program under this section shall be considered to be use of competitive procedures for purposes of [former] chapter 137 of title 10, United States Code.

"(d) Discretion To Use Non-certified Accounting Systems.—In executing programs under this pilot program, the Secretary of Defense shall establish procedures under which a small business or nontraditional contractor may engage an independent certified public accountant for the review and certification of its accounting system for the purposes of any audits required by regulation, unless the head of the agency determines that this is not appropriate based on past performance of the specific small business or nontraditional defense contractor, or based on analysis of other information specific to the award.

"(e) Guidance and Training.—The Secretary of Defense shall ensure that acquisition and auditing officials are provided guidance and training on the flexible use and tailoring of authorities under the pilot program to maximize efficiency and effectiveness.

"(f) Sunset.—The exceptions under subsections (a) and (b) shall terminate on October 1, 2029.

"(g) Definitions.—In this section [enacting this note and amending section 638 of Title 15, Commerce and Trade]:

"(1) Small business.—The term 'small business' has the meaning given the term 'small business concern' under section 3 of the Small Business Act (15 U.S.C. 632).

"(2) Nontraditional defense contractor.—The term 'nontraditional defense contractor' has the meaning given that term in section 2302(9) of title 10, United States Code [now 10 U.S.C. 3014]."

[Section 896(2)(B) of Pub. L. 114–328, which directed amendment of par. (2) of subsec. (b) of section 873 of Pub. L. 114–92, set out above, by inserting ", and if such performance audit is initiated within 18 months of the contract completion" before the period at the end, was executed by making the insertion before the period at the end of the concluding provisions of subsec. (b), to reflect the probable intent of Congress.]

§3703. Exceptions

(a) In general.—Submission of certified cost or pricing data shall not be required under section 3702 of this title in the case of a contract, a subcontract, or modification of a contract or subcontract—

(1) for which the price agreed upon is based on—

(A) adequate competition that results in at least two or more responsive and viable competing bids; or

(B) prices set by law or regulation;

(2) for the acquisition of a commercial product or a commercial service;

(3) in an exceptional case when the head of the procuring activity, without delegation, determines that the requirements of this chapter may be waived and justifies in writing the reasons for such determination; or

(4) to the extent such data—

(A) relates to an offset agreement in connection with a contract for the sale of a weapon system or defense-related item to a foreign country or foreign firm; and

(B) does not relate to a contract or subcontract under the offset agreement for work performed in such foreign country or by such foreign firm that is directly related to the weapon system or defense-related item being purchased under the contract.

(b) Modifications of contracts and subcontracts for commercial products or commercial services.—In the case of a modification of a contract or subcontract for a commercial product or commercial services that is not covered by the exception to the submission of certified cost or pricing data in paragraph (1) or (2) of subsection (a), submission of certified cost or pricing data shall not be required under section 3702 of this title if—

(1) the contract or subcontract being modified is a contract or subcontract for which submission of certified cost or pricing data may not be required by reason of paragraph (1) or (2) of subsection (a); and

(2) the modification would not change the contract or subcontract, as the case may be, from a contract or subcontract for the acquisition of a commercial product or commercial services to a contract or subcontract for the acquisition of an item other than a commercial product or commercial services.

(c) Noncommercial modifications of commercial products.—(1) The exception in subsection (a)(2) does not apply to cost or pricing data on noncommercial modifications of a commercial product that are expected to cost, in the aggregate, more than the amount specified in section 3702(a)(1)(A) of this title, as adjusted from time to time under section 3702(g) of this title, or 5 percent of the total price of the contract (at the time of contract award), whichever is greater.

(2) In this subsection, the term "noncommercial modification", with respect to a commercial product, means a modification of such product that is not a modification described in section 103(3)(A) of title 41.

(3) Nothing in paragraph (1) shall be construed—

(A) to limit the applicability of the exception in paragraph (1) or (3) of subsection (a) to cost or pricing data on a noncommercial modification of a commercial product; or

(B) to require the submission of cost or pricing data on any aspect of an acquisition of a commercial product other than the cost and pricing of noncommercial modifications of such product.

(d) Commercial product or commercial service determination.—(1) For purposes of applying the exception under subsection (a)(2) to the required submission of certified cost or pricing data, the contracting officer may presume that a prior commercial product or commercial service determination made by a military department, a Defense Agency, or another component of the Department of Defense shall serve as a determination for subsequent procurements of such product or service.

(2) If the contracting officer does not make the presumption described in paragraph (1) and instead chooses to proceed with a procurement of a product or service previously determined to be a commercial product or a commercial service using procedures other than the procedures authorized for the procurement of a commercial product or a commercial service, as the case may be, the contracting officer shall request a review of the commercial product or commercial service determination by the head of the contracting activity.

(3) Not later than 30 days after receiving a request for review of a determination under paragraph (2), the head of a contracting activity shall—

(A) confirm that the prior determination was appropriate and still applicable; or

(B) issue a revised determination with a written explanation of the basis for the revision.

(e) A contracting officer shall consider evidence provided by an offeror of recent purchase prices paid by the Government for the same or similar commercial products or commercial services in establishing price reasonableness on a subsequent purchase if the contracting officer is satisfied that the prices previously paid remain a valid reference for comparison after considering the totality of other relevant factors such as the time elapsed since the prior purchase and any differences in the quantities purchased or applicable terms and conditions.

(f) Determination by prime contractor.—A prime contractor required to submit certified cost or pricing data under section 3702 of this title with respect to a prime contract shall be responsible for determining whether a subcontract under such contract qualifies for an exception under subsection (a)(1) from such requirement.

(Added and amended Pub. L. 116–283, div. A, title XVIII, §1831(a), (d), Jan. 1, 2021, 134 Stat. 4209, 4211.)

Editorial Notes

Codification

The text of subsec. (b) of section 2306a of this title, which was transferred to this section and amended by Pub. L. 116–283, §1831(d), was based on Pub. L. 99–500, §101(c) [title X, §952(a)], Oct. 18, 1986, 100 Stat. 1783–82, 1783-166, and Pub. L. 99–591, §101(c) [title X, §952(a)], Oct. 30, 1986, 100 Stat. 3341–82, 3341-166; Pub. L. 99–661, div. A, title IX, formerly title IV, §952(a), Nov. 14, 1986, 100 Stat. 3945, renumbered title IX, Pub. L. 100–26, §3(5), Apr. 21, 1987, 101 Stat. 273; Pub. L. 103–355, title I, §1202(a), Oct. 13, 1994, 108 Stat. 3274, as amended by Pub. L. 104–106, div. D, title XLIII, §4321(a)(2), Feb. 10, 1996, 110 Stat. 671; Pub. L. 104–106, div. D, title XLII, §4201(a)(1), Feb. 10, 1996, 110 Stat. 649; Pub. L. 108–375, div. A, title VIII, §818(a), Oct. 28, 2004, 118 Stat. 2015; Pub. L. 110–181, div. A, title VIII, §814, Jan. 28, 2008, 122 Stat. 222; Pub. L. 113–291, div. A, title X, §1071(a)(3), Dec. 19, 2014, 128 Stat. 3504; Pub. L. 114–92, div. A, title VIII, §§812, 851(b), 853, Nov. 25, 2015, 129 Stat. 891, 916, 919; Pub. L. 114–328, div. A, title VIII, §822(2), Dec. 23, 2016, 130 Stat. 2276; Pub. L. 115–232, div. A, title VIII, §836(c)(5)(A), Aug. 13, 2018, 132 Stat. 1865. Pub. L. 99–500, Pub. L. 99–591, and Pub. L. 99–661 added identical sections. Pub. L. 99–591 is a corrected version of Pub. L. 99–500.

Amendments

2021—Pub. L. 116–283, §1831(d)(1), transferred subsec. (b) of section 2306a of this title to this section, struck out subsec. (b) designation and heading "Exceptions" at beginning, and redesignated pars. (1) to (6) as subsecs. (a) to (f), respectively, and realigned margins.

Subsec. (a). Pub. L. 116–283, §1831(d)(2)(A), (B), (C), (E), after redesignation of section 2306a(b)(1) of this title as subsec. (a) of this section, substituted "under section 3702 of this title" for "under subsection (a)" in introductory provisions, redesignated subpar. (A) and its cls. (i) and (ii) as par. (1) and subpars. (A) and (B), respectively, redesignated subpars. (B) and (C) as pars. (2) and (3), respectively, and redesignated subpar. (D) and its cls. (i) and (ii) as par. (4) and subpars. (A) and (B), respectively.

Subsec. (a)(3). Pub. L. 116–283, §1831(d)(2)(D), substituted "this chapter" for "this section".

Subsec. (b). Pub. L. 116–283, §1831(d)(3)(A), (B), after redesignation of section 2306a(b)(2) of this title as subsec. (b) of this section, in introductory provisions, substituted "paragraph (1) or (2) of subsection (a)" for "paragraph (1)(A) or (1)(B)" and "under section 3702 of this title" for "under subsection (a)" and redesignated subpars. (A) and (B) as pars. (1) and (2), respectively.

Subsec. (b)(1). Pub. L. 116–283, §1831(d)(3)(C), substituted "paragraph (1) or (2) of subsection (a)" for "paragraph (1)(A) or (1)(B)".

Subsec. (c). Pub. L. 116–283, §1831(d)(4)(A), (D)(i), after redesignation of section 2306a(b)(3) of this title as subsec. (c) of this section, redesignated subpars. (A), (B), and (C) and its cls. (i) and (ii) as pars. (1), (2), and (3) and subpars. (A) and (B), respectively.

Subsec. (c)(1). Pub. L. 116–283, §1831(d)(4)(B), substituted "subsection (a)(2)" for "paragraph (1)(B)", "section 3702(a)(1)(A) of this title" for "subsection (a)(1)(A)(i)", and "section 3702(g) of this title" for "subsection (a)(7)".

Subsec. (c)(2). Pub. L. 116–283, §1831(d)(4)(C), substituted "this subsection" for "this paragraph".

Subsec. (c)(3). Pub. L. 116–283, §1831(d)(4)(D)(ii), (ii) [(iii)], substituted "paragraph (1)" for "subparagraph (A)" in introductory provisions and "paragraph (1) or (3) of subsection (a)" for "subparagraph (A) or (C) of paragraph (1)" in subpar. (A).

Subsec. (d). Pub. L. 116–283, §1831(d)(5)(A), (D)(i), after redesignation of section 2306a(b)(4) of this title as subsec. (d) of this section, redesignated subpars. (A), (B), and (C) and its cls. (i) and (ii) as pars. (1), (2), and (3) and subpars. (A) and (B), respectively.

Subsec. (d)(1). Pub. L. 116–283, §1831(d)(5)(B), substituted "subsection (a)(2)" for "paragraph (1)(B)".

Subsec. (d)(2). Pub. L. 116–283, §1831(d)(5)(C), substituted "paragraph (1)" for "subparagraph (A)".

Subsec. (d)(3). Pub. L. 116–283, §1831(d)(5)(D)(ii), substituted "paragraph (2)" for "subparagraph (B)" in introductory provisions.

Subsec. (f). Pub. L. 116–283, §1831(d)(6), after redesignation of section 2306a(b)(6) of this title as subsec. (f) of this section, substituted "section 3702 of this title" for "subsection (a)" and "subsection (a)(1)" for "paragraph (1)(A)".

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.

§3704. Cost or pricing data on below-threshold contracts

(a) Authority to require submission.—Subject to subsection (b), when certified cost or pricing data are not required to be submitted by section 3702 of this title for a contract, subcontract, or modification of a contract or subcontract, such data may nevertheless be required to be submitted by the head of the procuring activity, but only if the head of the procuring activity determines that such data are necessary for the evaluation by the agency of the reasonableness of the price of the contract, subcontract, or modification of a contract or subcontract. In any case in which the head of the procuring activity requires such data to be submitted under this section, the head of the procuring activity shall justify in writing the reason for such requirement.

(b) Exception.—The head of the procuring activity may not require certified cost or pricing data to be submitted under this subsection for any contract or subcontract, or modification of a contract or subcontract, covered by the exceptions in paragraph (1) or (2) of section 3703(a) of this title.

(c) Delegation of authority prohibited.—The head of a procuring activity may not delegate functions under this subsection.

(Added and amended Pub. L. 116–283, div. A, title XVIII, §1831(a), (e), Jan. 1, 2021, 134 Stat. 4209, 4213.)

Editorial Notes

Codification

The text of subsec. (c) of section 2306a of this title, which was transferred to this section and amended by Pub. L. 116–283, §1831(e), was based on Pub. L. 99–500, §101(c) [title X, §952(a)], Oct. 18, 1986, 100 Stat. 1783–82, 1783-166, and Pub. L. 99–591, §101(c) [title X, §952(a)], Oct. 30, 1986, 100 Stat. 3341–82, 3341-166; Pub. L. 99–661, div. A, title IX, formerly title IV, §952(a), Nov. 14, 1986, 100 Stat. 3945, renumbered title IX, Pub. L. 100–26, §3(5), Apr. 21, 1987, 101 Stat. 273; Pub. L. 101–510, div. A, title VIII, §803(d), Nov. 5, 1990, 104 Stat. 1590; Pub. L. 103–355, title I, §1203, Oct. 13, 1994, 108 Stat. 3274; Pub. L. 104–106, div. D, title XLII, §4201(a)(1), Feb. 10, 1996, 110 Stat. 650. Pub. L. 99–500, Pub. L. 99–591, and Pub. L. 99–661 added identical sections. Pub. L. 99–591 is a corrected version of Pub. L. 99–500.

Amendments

2021—Pub. L. 116–283, §1831(e)(1)(A), transferred subsec. (c) of section 2306a of this title to this section and struck out subsec. (c) designation and heading "Cost or Pricing Data on Below-Threshold Contracts" at beginning.

Subsec. (a). Pub. L. 116–283, §1831(e)(1)(B), (2), redesignated par. (1) of section 2306a(c) of this title as subsec. (a) of this section, realigned margin, and substituted "subsection (b)" for "paragraph (2)", "section 3702 of this title" for "subsection (a)", and "under this section" for "under this subsection".

Subsec. (b). Pub. L. 116–283, §1831(e)(1)(B), (3), redesignated par. (2) of section 2306a(c) of this title as subsec. (b) of this section, realigned margin, and substituted "under this subsection" for "under this paragraph" and "paragraph (1) or (2) of section 3703(a) of this title" for "subparagraph (A) or (B) of subsection (b)(1)".

Subsec. (c). Pub. L. 116–283, §1831(e)(1)(B), (4), redesignated par. (3) of section 2306a(c) of this title as subsec. (c) of this section, realigned margin, and substituted "under this subsection" for "under this paragraph".

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.

§3705. Submission of other information

(a) Authority to require submission.—When certified cost or pricing data are not required to be submitted under this chapter for a contract, subcontract, or modification of a contract or subcontract, the offeror shall be required to submit to the contracting officer data other than certified cost or pricing data (if requested by the contracting officer), to the extent necessary to determine the reasonableness of the price of the contract, subcontract, or modification of the contract or subcontract. Except in the case of a contract or subcontract covered by the exceptions in section 3703(a)(1) of this title, the contracting officer shall require that the data submitted include, at a minimum, appropriate information on the prices at which the same item or similar items have previously been sold that is adequate for evaluating the reasonableness of the price for the procurement. If the contracting officer determines that the offeror does not have access to and cannot provide sufficient information on prices for the same or similar items to determine the reasonableness of price, the contracting officer shall require the submission of information on prices for similar levels of work or effort on related products or services, prices for alternative solutions or approaches, and other information that is relevant to the determination of a fair and reasonable price. Contracting officers shall not determine the price of a contract or subcontract to be fair and reasonable based solely on historical prices paid by the Government.

(b) Ineligibility for award.—(1) In the event the contracting officer is unable to determine proposed prices are fair and reasonable by any other means, an offeror who fails to make a good faith effort to comply with a reasonable request to submit data in accordance with subsection (a) is ineligible for award unless the head of the contracting activity, or the designee of the head of contracting activity, determines that it is in the best interest of the Government to make the award to that offeror, based on consideration of pertinent factors, including the following:

(A) The effort to obtain the data.

(B) Availability of other sources of supply of the item or service.

(C) The urgency or criticality of the Government's need for the item or service.

(D) Reasonableness of the price of the contract, subcontract, or modification of the contract or subcontract based on information available to the contracting officer.

(E) Rationale or justification made by the offeror for not providing the requested data.

(F) Risk to the Government if award is not made.

(2)(A) Any new determination made by the head of the contracting activity under paragraph (1) shall be reported to the Principal Director, Defense Pricing and Contracting on a quarterly basis.

(B) The Under Secretary of Defense for Acquisition and Sustainment, or a designee, shall produce an annual report identifying offerors that have denied multiple requests for submission of uncertified cost or pricing data over the preceding three-year period, but nevertheless received an award. The report shall identify products or services offered by such offerors that should undergo should-cost analysis. The Secretary of Defense may include a notation on such offerors in the system used by the Federal Government to monitor or record contractor past performance. The Under Secretary shall assess the extent to which these offerors are sole source providers within the defense industrial base and shall develop strategies to incentivize new entrants into the industrial base to increase the availability of other sources of supply for the product or service. The Under Secretary shall make appropriate portions of the report available to the leadership of the offerors named in such report.

(C) The Under Secretary of Defense for Acquisition and Sustainment shall develop a framework for revising what constitutes a denial of uncertified cost or pricing data, including—

(i) identifying situations under which such denials occur to exclude situations outside the control of the offeror or Federal Government;

(ii) identifying whether such denial is from the prime contractor or subcontractor; and

(iii) developing an appropriate timeframe for requiring submission of uncertified cost or pricing data before a request for such data is considered a denial, including a standardized determination of a starting point and conclusion for such requests.

(c) Limitations on authority.—The Federal Acquisition Regulation shall include the following provisions regarding the types of information that contracting officers may require under subsection (a):

(1) Reasonable limitations on requests for sales data relating to commercial products or commercial services.

(2) A requirement that a contracting officer limit, to the maximum extent practicable, the scope of any request for information relating to commercial products or commercial services from an offeror to only that information that is in the form regularly maintained by the offeror in commercial operations.

(3) A statement that any information received relating to commercial products or commercial services that is exempt from disclosure under section 552(b) of title 5 shall not be disclosed by the Federal Government.

(Added and amended Pub. L. 116–283, div. A, title XVIII, §1831(a), (f), Jan. 1, 2021, 134 Stat. 4209, 4213; Pub. L. 118–31, div. A, title VIII, §802, Dec. 22, 2023, 137 Stat. 312.)

Editorial Notes

Codification

The text of subsec. (d) of section 2306a of this title, which was transferred to this section and amended by Pub. L. 116–283, §1831(f), was based on Pub. L. 103–355, title I, §1204, Oct. 13, 1994, 108 Stat. 3275; Pub. L. 104–106, div. D, title XLII, §4201(a)(1) ,Feb. 10, 1996, 110 Stat. 650; Pub. L. 105–261, div. A, title VIII, §808(a), Oct. 17, 1998, 112 Stat. 2085; Pub. L. 114–92, div. A, title VIII, §852(e), 853, Nov. 25, 2015, 129 Stat. 918; Pub. L. 115–91, div. A, title VIII, §811(b), Dec. 12, 2017, 131 Stat. 1459; Pub. L. 115–232, div. A, title VIII, §836(c)(5)(B), Aug. 13, 2018, 132 Stat. 1865, as amended by Pub. L. 116–283, div. A, title X, §1081(d)(4)(B)(i), Jan. 1, 2021, 134 Stat. 3874; Pub. L. 116–92, div. A, title VIII, §803, Dec. 20, 2019, 133 Stat. 1483.

Amendments

2023—Subsec. (b)(2)(B). Pub. L. 118–31, §802(1), inserted at end "The Under Secretary shall make appropriate portions of the report available to the leadership of the offerors named in such report."

Subsec. (b)(2)(C). Pub. L. 118–31, §802(2), added subpar. (C).

2021—Pub. L. 116–283, §1831(f)(1), transferred subsec. (d) of section 2306a of this title to this section, struck out subsec. (d) designation and heading "Submission of Other Information" at beginning, and redesignated pars. (1) to (3) as subsecs. (a) to (c), respectively, and realigned margins.

Subsec. (a). Pub. L. 116–283, §1831(f)(2), after redesignation of section 2306a(d)(1) of this title as subsec. (a) of this section, substituted "under this chapter" for "under this section" and "section 3703(a)(1) of this title" for "subsection (b)(1)(A)".

Subsec. (b). Pub. L. 116–283, §1831(f)(3)(A), (B)(i), (C)(i), after redesignation of section 2306a(d)(2) of this title as subsec. (b) of this section, redesignated subpar. (A) and its cls. (i) to (vi) as par. (1) and subpars. (A) to (F), respectively, and redesignated subpar. (B) and its cls. (i) and (ii) as par. (2) and subpars. (A) and (B), respectively.

Subsec. (b)(1). Pub. L. 116–283, §1831(f)(3)(B)(ii), substituted "subsection (a)" for "paragraph (1)" in introductory provisions.

Subsec. (b)(2)(A). Pub. L. 116–283, §1831(f)(3)(C)(ii), substituted "paragraph (1)" for "subparagraph (A)".

Subsec. (c). Pub. L. 116–283, §1831(f)(4), after redesignation of section 2306a(d)(3) of this title as subsec. (c) of this section, redesignated subpars. (A) to (C) as pars. (1) to (3), respectively, and substituted "under subsection (a)" for "under paragraph (1)" in introductory provisions.

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.

§3706. Price reductions for defective cost or pricing data

(a) Provision Requiring Adjustment.—

(1) In general.—A prime contract (or change or modification to a prime contract) under which a certificate under section 3702(b) of this title is required shall contain a provision that the price of the contract to the United States, including profit or fee, shall be adjusted to exclude any significant amount by which it may be determined by the head of the agency that such price was increased because the contractor (or any subcontractor required to make available such a certificate) submitted defective cost or pricing data.

(2) What constitutes defective cost or pricing data.—For the purposes of this chapter, defective cost or pricing data are cost or pricing data which, as of the date of agreement on the price of the contract (or another date agreed upon between the parties), were inaccurate, incomplete, or noncurrent. If for purposes of the preceding sentence the parties agree upon a date other than the date of agreement on the price of the contract, the date agreed upon by the parties shall be as close to the date of agreement on the price of the contract as is practicable.

(b) Valid Defense.—In determining for purposes of a contract price adjustment under a contract provision required by subsection (a) whether, and to what extent, a contract price was increased because the contractor (or a subcontractor) submitted defective cost or pricing data, it shall be a defense that the United States did not rely on the defective data submitted by the contractor or subcontractor.

(c) Invalid Defenses.—It is not a defense to an adjustment of the price of a contract under a contract provision required by subsection (a) that—

(1) the price of the contract would not have been modified even if accurate, complete, and current cost or pricing data had been submitted by the contractor or subcontractor because the contractor or subcontractor—

(A) was the sole source of the property or services procured; or

(B) otherwise was in a superior bargaining position with respect to the property or services procured;

(2) the contracting officer should have known that the cost and pricing data in issue were defective even though the contractor or subcontractor took no affirmative action to bring the character of the data to the attention of the contracting officer;

(3) the contract was based on an agreement between the contractor and the United States about the total cost of the contract and there was no agreement about the cost of each item procured under such contract; or

(4) the prime contractor or subcontractor did not submit a certification of cost and pricing data relating to the contract as required under section 3702(b) of this title.

(d) Offsets.—

(1) When allowed.—A contractor shall be allowed to offset an amount against the amount of a contract price adjustment under a contract provision required by subsection (a) if—

(A) the contractor certifies to the contracting officer (or to a designated representative of the contracting officer) that, to the best of the contractor's knowledge and belief, the contractor is entitled to the offset; and

(B) the contractor proves that the cost or pricing data were available before the date of agreement on the price of the contract (or price of the modification) or, if applicable consistent with subsection (a)(2), another date agreed upon between the parties, and that the data were not submitted as specified in section 3702(c) of this title before such date.

(2) A contractor shall not be allowed to offset an amount otherwise authorized to be offset under paragraph (1) if—

(A) the certification under section 3702(b) of this title with respect to the cost or pricing data involved was known to be false when signed; or

(B) the United States proves that, had the cost or pricing data referred to in paragraph (1)(B) been submitted to the United States before the date of agreement on the price of the contract (or price of the modification) or, if applicable consistent with subsection (a)(2), another date agreed upon between the parties, the submission of such cost or pricing data would not have resulted in an increase in that price in the amount to be offset.

(Added and amended Pub. L. 116–283, div. A, title XVIII, §1831(a), (g), Jan. 1, 2021, 134 Stat. 4209, 4214.)

Editorial Notes

Codification

The text of subsec. (e) of section 2306a of this title, which was transferred to this section and amended by Pub. L. 116–283, §1831(g), was based on Pub. L. 99–500, §101(c) [title X, §952(a)], Oct. 18, 1986, 100 Stat. 1783–82, 1783-166, and Pub. L. 99–591, §101(c) [title X, §952(a)], Oct. 30, 1986, 100 Stat. 3341–82, 3341-166; Pub. L. 99–661, div. A, title IX, formerly title IV, §952(a), Nov. 14, 1986, 100 Stat. 3945, renumbered title IX, Pub. L. 100–26, §3(5), Apr. 21, 1987, 101 Stat. 273; Pub. L. 103–355, title I, §1204(1), Oct. 13, 1994, 108 Stat. 3275; Pub. L. 104–106, div. D, title XLIII, §4321(b)(7)(B), Feb. 10, 1996, 110 Stat. 672. Pub. L. 99–500, Pub. L. 99–591, and Pub. L. 99–661 added identical sections. Pub. L. 99–591 is a corrected version of Pub. L. 99–500.

Amendments

2021—Pub. L. 116–283, §1831(g)(1), transferred subsec. (e) of section 2306a of this title to this section, struck out subsec. (e) designation and heading "Price Reductions for Defective Cost or Pricing Data" at beginning, and redesignated pars. (1) to (4) as subsecs. (a) to (d), resepectively.

Subsec. (a). Pub. L. 116–283, §1831(g)(2), after redesignation of section 2306a(e)(1) of this title as subsec. (a) of this section, inserted subsec. heading, redesignated subpar. (A) as par. (1), inserted heading, and substituted "section 3702(b) of this title" for "subsection (a)(2)", and redesignated subpar. (B) as par. (2), inserted heading, and substituted "of this chapter" for "of this section".

Subsec. (b). Pub. L. 116–283, §1831(g)(3), after redesignation of section 2306a(e)(2) of this title as subsec. (b) of this section, inserted heading and substituted "subsection (a)" for "paragraph (1)".

Subsec. (c). Pub. L. 116–283, §1831(g)(4)(A)–(D), after redesignation of section 2306a(e)(3) of this title as subsec. (c) of this section, inserted heading, redesignated subpar. (A), and its cls. (i) and (ii), and subpars. (B) to (D) as par. (1), subpars. (A) and (B), and pars. (2) to (4), respectively, and substituted "subsection (a)" for "paragraph (1)" in introductory provisions.

Subsec. (c)(4). Pub. L. 116–283, §1831(g)(4)(E), substituted "section 3702(b) of this title" for "subsection (a)(2)".

Subsec. (d). Pub. L. 116–283, §1831(g)(5)(A)–(C), after redesignation of section 2306a(e)(4) of this title as subsec. (d) of this section, inserted heading, substituted "subsection (a)" for "paragraph (1)" in introductory provisions, and redesignated subpars. (A) and (B) as pars. (1) and (2), respectively.

Subsec. (d)(1). Pub. L. 116–283, §1831(g)(5)(A), (B), (D), inserted heading, substituted "subsection (a)" for "paragraph (1)" in introductory provisions, and redesignated cls. (i) and (ii) of former section 2306a(e)(4)(A) as subpars. (A) and (B), respectively.

Subsec. (d)(1)(B). Pub. L. 116–283, §1831(g)(5)(E), substituted "subsection (a)(2)" for "paragraph (1)(B)" and "section 3702(c) of this title" for "subsection (a)(3)".

Subsec. (d)(2). Pub. L. 116–283, §1831(g)(5)(F)(i), (ii), substituted "paragraph (1)" for "subparagraph (A)" in introductory provisions and redesignated cls. (i) and (ii) of former section 2306a(e)(4)(B) as subpars. (A) and (B), respectively.

Subsec. (d)(2)(A). Pub. L. 116–283, §1831(g)(5)(F)(iii), substituted "section 3702(b) of this title" for "subsection (a)(2)".

Subsec. (d)(2)(B). Pub. L. 116–283, §1831(g)(5)(F)(iv), substituted "in paragraph (1)(B)" for "in subparagraph (A)(ii)" and "with subsection (a)(2)" for "with paragraph (1)(B)".

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.

§3707. Interest and penalties for certain overpayments

(a) In General.—If the United States makes an overpayment to a contractor under a contract subject to this chapter and the overpayment was due to the submission by the contractor of defective cost or pricing data, the contractor shall be liable to the United States—

(1) for interest on the amount of such overpayment, to be computed—

(A) for the period beginning on the date the overpayment was made to the contractor and ending on the date the contractor repays the amount of such overpayment to the United States; and

(B) at the current rate prescribed by the Secretary of the Treasury under section 6621 of the Internal Revenue Code of 1986; and

(2) if the submission of such defective data was a knowing submission, for an additional amount equal to the amount of the overpayment.

(b) Liability Not Affected by Refusal to Submit Certification.—Any liability under this section of a contractor that submits cost or pricing data but refuses to submit the certification required by section 3702(b) of this title with respect to the cost or pricing data shall not be affected by the refusal to submit such certification.

(Added and amended Pub. L. 116–283, div. A, title XVIII, §1831(a), (h), Jan. 1, 2021, 134 Stat. 4209, 4216; Pub. L. 117–81, div. A, title XVII, §1701(b)(10)(H), Dec. 27, 2021, 135 Stat. 2134.)

Editorial Notes

References in Text

Section 6621 of the Internal Revenue Code of 1986, referred to in subsec. (a)(1)(B), is classified to section 6621 of Title 26, Internal Revenue Code.

Codification

The text of subsec. (f) of section 2306a of this title, which was transferred to this section and amended by Pub. L. 116–283, §1831(h), was based on Pub. L. 99–500, §101(c) [title X, §952(a)], Oct. 18, 1986, 100 Stat. 1783–82, 1783-166, and Pub. L. 99–591, §101(c) [title X, §952(a)], Oct. 30, 1986, 100 Stat. 3341–82, 3341-166; Pub. L. 99–661, div. A, title IX, formerly title IV, §952(a), Nov. 14, 1986, 100 Stat. 3945, renumbered title IX, Pub. L. 100–26, §3(5), Apr. 21, 1987, 101 Stat. 273; Pub. L. 100–180, div. A, title VIII, §804(b)(2), Dec. 4, 1987, 101 Stat. 1125; Pub. L. 102–190, div. A, title X, §1061(a)(9), Dec. 5, 1991, 105 Stat. 1472; Pub. L. 103–355, title I, §§1204(1), 1209, Oct. 13, 1994, 108 Stat. 3275, 3277. Pub. L. 99–500, Pub. L. 99–591, and Pub. L. 99–661 added identical sections. Pub. L. 99–591 is a corrected version of Pub. L. 99–500.

Amendments

2021—Pub. L. 116–283, §1832(h)(1), transferred subsec. (f) of section 2306a of this title to this section, redesignated it as subsec. (a), and redesignated par. (2) as subsec. (b).

Subsec. (a). Pub. L. 116–283, §1831(h)(2), as amended by Pub. L. 117–81, §1701(b)(10)(H), after redesignation of section 2306a(f) of this title as subsec. (a) of this section, in heading, substituted "In General" for "Interest and Penalties for Certain Overpayments", in introductory provisions, struck out par. (1) designation at beginning and substituted "this chapter" for "this section", and redesignated subpar. (A), its cls. (i) and (ii), and subpar. (B) as par. (1), subpars. (A) and (B), and par. (2), respectively.

Subsec. (b). Pub. L. 116–283, §1831(h)(3), as amended by Pub. L. 117–81, §1701(b)(10)(H), after redesignation of section 2306a(f)(2) of this title as subsec. (b) of this section, inserted heading and substituted "this section" for "this subsection" and "section 3702(b) of this title" for "subsection (a)(2)".

Statutory Notes and Related Subsidiaries

Effective Date of 2021 Amendment

Amendment by Pub. L. 117–81 applicable as if included in the enactment of title XVIII of Pub. L. 116–283 as enacted, see section 1701(a)(2) of Pub. L. 117–81, set out in a note preceding section 3001 of this title and Effective Date note below.

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.

§3708. Right to examine contractor records

For the purpose of evaluating the accuracy, completeness, and currency of cost or pricing data required to be submitted by this chapter, the head of an agency shall have the authority provided by section 3841(b)(2) of this title.

(Added and amended Pub. L. 116–283, div. A, title XVIII, §1831(a), (i), Jan. 1, 2021, 134 Stat. 4209, 4216.)

Editorial Notes

Codification

The text of subsec. (g) of section 2306a of this title, which was transferred to this section and amended by Pub. L. 116–283, §1831(i), was based on Pub. L. 103–355, title I, §1205, Oct. 13, 1994, 108 Stat. 3276.

Amendments

2021—Pub. L. 116–283, §1831(i), transferred subsec. (g) of section 2306a of this title to this section, struck out subsec. (g) designation and heading "Right of United States To Examine Contractor Records" at beginning, and substituted "this chapter" for "this section" and "section 3841(b)(2)" for "section 2313(a)(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.

CHAPTER 272—[Reserved]

        

Editorial Notes

Amendments

2021—Pub. L. 117–81, div. A, title XVII, §1701(i)(6), Dec. 27, 2021, 135 Stat. 2141, amended Pub. L. 116–283, div. A, title XVIII, §1831(k), Jan. 1, 2021, 134 Stat. 4217, which added this analysis, by substituting "[Reserved]" for "OTHER PROVISIONS RELATING TO COST OR PRICING DATA" in chapter heading and "[Reserved]" for "Evaluating the reasonableness of price: guidance and training" in item 3721, for "Grants of exceptions to cost or pricing data certification requirements and waivers of cost accounting standards" in item 3722, for "Streamlining awards for innovative technology projects: pilot program" in item 3723, and for "Risk-based contracting for smaller contract actions under Truth in Negotiations Act: pilot program" in item 3724.

§3721. [Reserved]

(Added Pub. L. 116–283, div. A, title XVIII, §1831(k), Jan. 1, 2021, 134 Stat. 4217; amended Pub. L. 117–81, div. A, title XVII, §1701(i)(6)(B), Dec. 27, 2021, 135 Stat. 2141.)

Editorial Notes

Prior Provisions

A prior section 3721, act Aug. 10, 1956, ch. 1041, 70A Stat. 214; Pub. L. 85–861, §1(92)(A), Sept. 2, 1958, 72 Stat. 1482, related to hospital benefits for members of Army, other than of Regular Army, prior to repeal by Pub. L. 99–661, div. A, title VI, §604(f)(1)(A), (g), Nov. 14, 1986, 100 Stat. 3877, 3878, applicable with respect to persons who, after Nov. 14, 1986, incur or aggravate an injury, illness, or disease or die.

Amendments

2021—Pub. L. 117–81, §1701(i)(6)(B), amended Pub. L. 116–283, §1831(k), which enacted this section, by adding section 3721 designation and catchline "[Reserved]" and striking out former section 3721 designation and catchline "Evaluating the reasonableness of price: guidance and training".

Statutory Notes and Related Subsidiaries

Effective Date of 2021 Amendment

Amendment made to Pub. L. 116–283 by Pub. L. 117–81, resulting in omission of this section, applicable as if included in the enactment of title XVIII of Pub. L. 116–283 as enacted, see section 1701(a)(2) of Pub. L. 117–81, set out in a note preceding section 3001 of this title and Effective Date note below.

Effective Date

Section 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.

§3722. [Reserved]

(Added Pub. L. 116–283, div. A, title XVIII, §1831(k), Jan. 1, 2021, 134 Stat. 4217; amended Pub. L. 117–81, div. A, title XVII, §1701(i)(6)(B), Dec. 27, 2021, 135 Stat. 2141.)

Editorial Notes

Prior Provisions

A prior section 3722, acts Aug. 10, 1956, ch. 1041, 70A Stat. 214; Sept. 2, 1958, Pub. L. 85–861, §1(92)(B), (C), 72 Stat. 1482, related to hospital and related benefits for members of a Citizens' Military Training Camp and for members of Army not covered by section 3721 of this title, prior to repeal by Pub. L. 99–661, div. A, title VI, §604(f)(1)(A), (g), Nov. 14, 1986, 100 Stat. 3877, 3878, applicable with respect to persons who, after Nov. 14, 1986, incur or aggravate an injury, illness, or disease or die.

Amendments

2021—Pub. L. 117–81, §1701(i)(6)(B), amended Pub. L. 116–283, §1831(k), which enacted this section, by adding section 3722 designation and catchline "[Reserved]" and striking out former section 3722 designation and catchline "Grants of exceptions to cost or pricing data certification requirements and waivers of cost accounting standards".

Statutory Notes and Related Subsidiaries

Effective Date of 2021 Amendment

Amendment made to Pub. L. 116–283 by Pub. L. 117–81, resulting in omission of this section, applicable as if included in the enactment of title XVIII of Pub. L. 116–283 as enacted, see section 1701(a)(2) of Pub. L. 117–81, set out in a note preceding section 3001 of this title and Effective Date note below.

Effective Date

Section 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.

§3723. [Reserved]

(Added Pub. L. 116–283, div. A, title XVIII, §1831(k), Jan. 1, 2021, 134 Stat. 4217; amended Pub. L. 117–81, div. A, title XVII, §1701(i)(6)(B), Dec. 27, 2021, 135 Stat. 2141.)

Editorial Notes

Prior Provisions

A prior section 3723 was renumbered section 7263 of this title.

Amendments

2021—Pub. L. 117–81, §1701(i)(6)(B), amended Pub. L. 116–283, §1831(k), which enacted this section, by adding section 3723 designation and catchline "[Reserved]" and striking out former section 3723 designation and catchline "Streamlining awards for innovative technology projects: pilot program".

Statutory Notes and Related Subsidiaries

Effective Date of 2021 Amendment

Amendment made to Pub. L. 116–283 by Pub. L. 117–81, resulting in omission of this section, applicable as if included in the enactment of title XVIII of Pub. L. 116–283 as enacted, see section 1701(a)(2) of Pub. L. 117–81, set out in a note preceding section 3001 of this title and Effective Date note below.

Effective Date

Section 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.

§3724. [Reserved]

(Added Pub. L. 116–283, div. A, title XVIII, §1831(k), Jan. 1, 2021, 134 Stat. 4217; amended Pub. L. 117–81, div. A, title XVII, §1701(i)(6)(B), Dec. 27, 2021, 135 Stat. 2141.)

Editorial Notes

Amendments

2021—Pub. L. 117–81, §1701(i)(6)(B), amended Pub. L. 116–283, §1831(k), which enacted this section, by adding section 3724 designation and catchline "[Reserved]" and striking out former section 3724 designation and catchline "Risk-based contracting for smaller contract actions under truth in negotiations act: pilot program".

Statutory Notes and Related Subsidiaries

Effective Date of 2021 Amendment

Amendment made to Pub. L. 116–283 by Pub. L. 117–81, resulting in omission of this section, applicable as if included in the enactment of title XVIII of Pub. L. 116–283 as enacted, see section 1701(a)(2) of Pub. L. 117–81, set out in a note preceding section 3001 of this title and Effective Date note below.

Effective Date

Section 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.

CHAPTER 273—ALLOWABLE COSTS

        

Editorial Notes

Prior Provisions

A prior chapter 273 "ALLOWABLE COSTS", as added by Pub. L. 115–232, div. A, title VIII, §801(a), Aug. 13, 2018, 132 Stat. 1828, and consisting of reserved section 3741, was repealed by Pub. L. 116–283, div. A, title XVIII, §1832(a), Jan. 1, 2021, 134 Stat. 4217.

SUBCHAPTER I—GENERAL

        

§3741. Definitions

In this subchapter:

(1) Compensation.—The term "compensation", for a year, means the total amount of wages, salary, bonuses and deferred compensation for the year, whether paid, earned, or otherwise accruing, as recorded in an employer's cost accounting records for the year.

(2) Covered contract.—The term "covered contract" means a contract for an amount in excess of $500,000 that is entered into by the head of an agency, except that such term does not include a fixed-price contract without cost incentives or any firm fixed-price contract for the purchase of commercial products or commercial services.

(3) Fiscal year.—The term "fiscal year" means a fiscal year established by a contractor for accounting purposes.

(4) Head of the agency.—The term "head of the agency" or "agency head" does not include the Secretary of a military department.

(5) Agency.—The term "agency" means the Department of Defense, the Coast Guard, and the National Aeronautics and Space Administration.

(Added and amended Pub. L. 116–283, div. A, title XVIII, §1832(a), (b)(1)–(3), Jan. 1, 2021, 134 Stat. 4218.)

Editorial Notes

Codification

The text of pars. (1)(A), (2)–(4), and (6) of subsec. (l) of section 2324 of this title, which were transferred to this section and amended by Pub. L. 116–283, §1832(b)(1)–(3), was based on Pub. L. 103–355, title II, §2101(d), Oct. 13, 1994, 108 Stat. 3308; Pub. L. 105–85, div. A, title VIII, §808(a)(2), Nov. 18, 1997, 111 Stat. 1836; Pub. L. 115–232, div. A, title VIII, §836(c)(9), Aug. 13, 2018, 132 Stat. 1866.

Prior Provisions

A prior section 3741 was renumbered section 7271 of this title.

Amendments

2021—Pub. L. 116–283, §1832(b)(1)–(3), redesignated pars. (4), (1)(A), (6), (2), and (3) of section 2324(l) of this title as pars. (1) to (5), respectively, of this section and inserted headings.

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.

§3742. Adjustment of threshold amount of covered contract

Effective on October 1 of each year that is divisible by five, the amount set forth in section 3741(2) of this title shall be adjusted in accordance with section 1908 of title 41.

(Added and amended Pub. L. 116–283, div. A, title XVIII, §1832(a), (b)(4), Jan. 1, 2021, 134 Stat. 4218, 4219.)

Editorial Notes

Codification

The text of par. (1)(B) of subsec. (l) of section 2324 of this title, which was transferred to this section and amended by Pub. L. 116–283, §1832(b)(4), was based on Pub. L. 103–355, title II, §2101(d), Oct. 13, 1994, 108 Stat. 3308; Pub. L. 115–91, div. A, title VIII, §811(e), Dec. 12, 2017, 131 Stat. 1460.

Prior Provisions

A prior section 3742 was renumbered section 7272 of this title.

Amendments

2021—Pub. L. 116–283, §1832(b)(4), transferred subpar. (B) of section 2324(l)(1) of this title to this section, struck out subpar. (B) designation at beginning, and substituted "section 3741(2) of this title" for "subparagraph (A)".

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.

§3743. Effect of submission of unallowable costs

(a) Indirect Cost That Violates a FAR Cost Principle.—The head of an agency shall require that a covered contract provide that if the contractor submits to the agency a proposal for settlement of indirect costs incurred by the contractor for any period after such costs have been accrued and if that proposal includes the submission of a cost which is unallowable because the cost violates a cost principle in the Federal Acquisition Regulation or applicable agency supplement to the Federal Acquisition Regulation, the cost shall be disallowed.

(b) Penalty for Violation of Cost Principle.—

(1) If the head of the agency determines that a cost submitted by a contractor in its proposal for settlement is expressly unallowable under a cost principle referred to in subsection (a) that defines the allowability of specific selected costs, the head of the agency shall assess a penalty against the contractor in an amount equal to—

(A) the amount of the disallowed cost allocated to covered contracts for which a proposal for settlement of indirect costs has been submitted; plus

(B) interest (to be computed based on provisions in the Federal Acquisition Regulation) to compensate the United States for the use of any funds which a contractor has been paid in excess of the amount to which the contractor was entitled.

(2) Cost determined to be unallowable before proposal submitted.—If the head of the agency determines that a proposal for settlement of indirect costs submitted by a contractor includes a cost determined to be unallowable in the case of such contractor before the submission of such proposal, the head of the agency shall assess a penalty against the contractor in an amount equal to two times the amount of the disallowed cost allocated to covered contracts for which a proposal for settlement of indirect costs has been submitted.

(c) Waiver of Penalty.—The Federal Acquisition Regulation shall provide for a penalty under subsection (b) to be waived in the case of a contractor's proposal for settlement of indirect costs when—

(1) the contractor withdraws the proposal before the formal initiation of an audit of the proposal by the Federal Government and resubmits a revised proposal;

(2) the amount of unallowable costs subject to the penalty is insignificant; or

(3) the contractor demonstrates, to the contracting officer's satisfaction, that—

(A) it has established appropriate policies and personnel training and an internal control and review system that provide assurances that unallowable costs subject to penalties are precluded from being included in the contractor's proposal for settlement of indirect costs; and

(B) the unallowable costs subject to the penalty were inadvertently incorporated into the proposal.

(d) Applicability of Contract Disputes Procedure to Disallowance of Cost and Assessment of Penalty.—An action of the head of an agency under subsection (a) or (b)—

(1) shall be considered a final decision for the purposes of section 7103 of title 41; and

(2) is appealable in the manner provided in section 7104(a) of title 41.

(Added and amended Pub. L. 116–283, div. A, title XVIII, §1832(a), (c), Jan. 1, 2021, 134 Stat. 4218, 4219.)

Editorial Notes

Codification

The text of subsec. (a) of section 2324 of this title, which was transferred to this section by Pub. L. 116–283, §1832(c)(1), was based on Pub. L. 99–145, title IX, §911(a)(1), Nov. 8, 1985, 99 Stat. 682; Pub. L. 102–484, div. A, title VIII, §818(a)(1)(A), Oct. 23, 1992, 106 Stat. 2457; Pub. L. 103–355, title II, §2101(a), Oct. 13, 1994, 108 Stat. 3306.

The text of subsec. (b) of section 2324 of this title, which was transferred to this section and amended by Pub. L. 116–283, §1832(c), was based on Pub. L. 99–145, title IX, §911(a)(1), Nov. 8, 1985, 99 Stat. 682; Pub. L. 102–484, div. A, title VIII, §818(a)(1)(B), (2), Oct. 23, 1992, 106 Stat. 2457, 2458; Pub. L. 103–355, title II, §2101(a)(2), Oct. 13, 1994, 108 Stat. 3306.

The text of subsec. (c) of section 2324 of this title, which was transferred to this section by Pub. L. 116–283, §1832(c)(1), was based on Pub. L. 102–484, div. A, title VIII, §818(a)(5), Oct. 23, 1992, 106 Stat. 2458; Pub. L. 103–355, title II, §2101(a)(3), Oct. 13, 1994, 108 Stat. 3307.

The text of subsec. (d) of section 2324 of this title, which was transferred to this section by Pub. L. 116–283, §1832(c)(1), was based on Pub. L. 99–145, title IX, §911(a)(1), Nov. 8, 1985, 99 Stat. 683; Pub. L. 102–484, div. A, title VIII, §818(a)(4), Oct. 23, 1992, 106 Stat. 2458; Pub. L. 103–355, title II, §2101(a)(4), Oct. 13, 1994, 108 Stat. 3307; Pub. L. 111–350, §5(b)(19)(A), (B), Jan. 4, 2011, 124 Stat. 3844.

Prior Provisions

A prior section 3743 was renumbered section 7273 of this title.

Amendments

2021—Pub. L. 116–283, §1832(c)(1), transferred subsecs. (a) to (d) of section 2324 of this title to this section.

Subsec. (b). Pub. L. 116–283, §1832(c)(2), realigned margins of pars. (1) and (2) and inserted par. (2) heading.

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.

§3744. Specific costs not allowable

(a) Specific Costs.—The following costs are not allowable under a covered contract:

(1) Costs of entertainment, including amusement, diversion, and social activities and any costs directly associated with such costs (such as tickets to shows or sports events, meals, lodging, rentals, transportation, and gratuities).

(2) Costs incurred to influence (directly or indirectly) legislative action on any matter pending before Congress, a State legislature, or a legislative body of a political subdivision of a State.

(3) Costs incurred in defense of any civil or criminal fraud proceeding or similar proceeding (including filing of any false certification) brought by the United States where the contractor is found liable or has pleaded nolo contendere to a charge of fraud or similar proceeding (including filing of a false certification).

(4) Payments of fines and penalties resulting from violations of, or failure to comply with, Federal, State, local, or foreign laws and regulations, except when incurred as a result of compliance with specific terms and conditions of the contract or specific written instructions from the contracting officer authorizing in advance such payments in accordance with applicable provisions of the Federal Acquisition Regulation.

(5) Costs of membership in any social, dining, or country club or organization.

(6) Costs of alcoholic beverages.

(7) Contributions or donations, regardless of the recipient.

(8) Costs of advertising designed to promote the contractor or its products.

(9) Costs of promotional items and memorabilia, including models, gifts, and souvenirs.

(10) Costs for travel by commercial aircraft which exceed the amount of the standard commercial fare.

(11) Costs incurred in making any payment (commonly known as a "golden parachute payment") which is—

(i) in an amount in excess of the normal severance pay paid by the contractor to an employee upon termination of employment; and

(ii) is paid to the employee contingent upon, and following, a change in management control over, or ownership of, the contractor or a substantial portion of the contractor's assets.

(12) Costs of commercial insurance that protects against the costs of the contractor for correction of the contractor's own defects in materials or workmanship.

(13) Costs of severance pay paid by the contractor to foreign nationals employed by the contractor under a service contract performed outside the United States, to the extent that the amount of severance pay paid in any case exceeds the amount paid in the industry involved under the customary or prevailing practice for firms in that industry providing similar services in the United States, as determined under the Federal Acquisition Regulation.

(14) Costs of severance pay paid by the contractor to a foreign national employed by the contractor under a service contract performed in a foreign country if the termination of the employment of the foreign national is the result of the closing of, or the curtailment of activities at, a United States military facility in that country at the request of the government of that country.

(15) Costs incurred by a contractor in connection with any criminal, civil, or administrative proceeding commenced by the United States or a State, to the extent provided in section 3750 of this title.

(16) ¹ Costs of compensation of any contractor employee for a fiscal year, regardless of the contract funding source, to the extent that such compensation exceeds $625,000 adjusted annually for the U.S. Bureau of Labor Statistics Employment Cost Index for total compensation for private industry workers, by occupational and industry group not seasonally adjusted, except that the Secretary of Defense may establish exceptions for positions in the science, technology, engineering, mathematics, medical, and cybersecurity fields and other fields requiring unique areas of expertise upon a determination that such exceptions are needed to ensure that the Department of Defense has continued access to needed skills and capabilities.

(16) ¹ Costs of compensation of contractor and subcontractor employees for a fiscal year, regardless of the contract funding source, to the extent that such compensation exceeds $487,000 per year, adjusted annually to reflect the change in the Employment Cost Index for all workers, as calculated by the Bureau of Labor Statistics, except that the head of an executive agency may establish one or more narrowly targeted exceptions for scientists, engineers, or other specialists upon a determination that such exceptions are needed to ensure that the executive agency has continued access to needed skills and capabilities.

(17) Costs incurred by a contractor in connection with a congressional investigation or inquiry into an issue that is the subject matter of a proceeding resulting in a disposition as described in section 3750(c) of this title.

(b) Waiver of Severance Pay Restrictions for Foreign Nationals.—

(1) Head of an agency determination.—Pursuant to the Federal Acquisition Regulation and subject to the availability of appropriations, the head of an agency awarding a covered contract (other than a contract to which subsection (d) applies) may waive the application of the provisions of subsections (a)(13) and (a)(14) to that contract if the head of the agency determines that—

(A) the application of such provisions to the contract would adversely affect the continuation of a program, project, or activity that provides significant support services for members of the armed forces stationed or deployed outside the United States;

(B) the contractor has taken (or has established plans to take) appropriate actions within the contractor's control to minimize the amount and number of incidents of the payment of severance pay by the contractor to employees under the contract who are foreign nationals; and

(C) the payment of severance pay is necessary in order to comply with a law that is generally applicable to a significant number of businesses in the country in which the foreign national receiving the payment performed services under the contract or is necessary to comply with a collective bargaining agreement.

(2) Solicitation to include statement about waiver.—The head of an agency shall include in the solicitation for a covered contract a statement indicating—

(A) that a waiver has been granted under paragraph (1) for the contract; or

(B) whether the head of the agency will consider granting such a waiver, and, if the agency head will consider granting a waiver, the criteria to be used in granting the waiver.

(3) Determination to be made before contract awarded.—The head of an agency shall make the final determination regarding whether to grant a waiver under paragraph (1) with respect to a covered contract before award of the contract.

(c) Establishment of Definitions, Exclusions, Limitations, and Qualifications.—The provisions of the Federal Acquisition Regulation implementing this subchapter may establish appropriate definitions, exclusions, limitations, and qualifications.

(d) Specific Costs Under Military Banking Contracts Relating to Foreign Nationals.—

(1) Authority.—The Secretary of Defense may provide in a military banking contract that the provisions of subsections (a)(13) and (a)(14) shall not apply to costs incurred under the contract by the contractor for payment of mandated foreign national severance pay. The Secretary may include such a provision in a military banking contract only if the Secretary determines, with respect to that contract, that the contractor has taken (or has established plans to take) appropriate actions within the contractor's control to minimize the amount and number of incidents of the payment of severance pay by the contractor to employees under the contract who are foreign nationals.

(2) Definitions.—In paragraph (1):

(A) Military banking contract.—The term "military banking contract" means a contract between the Secretary and a financial institution under which the financial institution operates a military banking facility outside the United States for use by members of the armed forces stationed or deployed outside the United States and other authorized personnel.

(B) Mandated foreign national severance pay.—The term "mandated foreign national severance pay" means severance pay paid by a contractor to a foreign national employee the payment of which by the contractor is required in order to comply with a law that is generally applicable to a significant number of businesses in the country in which the foreign national receiving the payment performed services under the contract.

(3) Exception for foreign-owned financial institutions.—Paragraph (1) does not apply to a contract with a financial institution that is owned or controlled by citizens or nationals of a foreign country, as determined by the Secretary of Defense. Such a determination shall be made in accordance with the criteria set out in paragraph (1) of section 4(g) of the Buy American Act (as added by section 7002(2) of the Omnibus Trade and Competitiveness Act of 1988) and the policy guidance referred to in paragraph (2)(A) of that section.

(Added and amended Pub. L. 116–283, div. A, title XVIII, §1832(a), (d), Jan. 1, 2021, 134 Stat. 4218, 4219.)

Editorial Notes

References in Text

Section 4 of the Buy American Act (as added by section 7002(2) of the Omnibus Trade and Competitiveness Act of 1988), referred to in subsec. (d)(3), was section 4 of act Mar. 3, 1933, ch. 212, title III, as added Pub. L. 100–418, title VII, §7002(2), Aug. 23, 1988, 102 Stat. 1545. Section 4, which was classified to section 10b–1 of former Title 41, Public Contracts, was omitted from the Code in view of section 7004 of Pub. L. 100–418 which provided that the amendment by Pub. L. 100–418 which enacted section 4 ceased to be effective on Apr. 30, 1996. Section 4 was subsequently repealed by Pub. L. 111–350, §7(b), Jan. 4, 2011, 124 Stat. 3855, which Act enacted Title 41, Public Contracts.

Codification

The text of subsec. (e) of section 2324 of this title, which was transferred to this section and amended by Pub. L. 116–283, §1832(d), was based on Pub. L. 99–145, title IX, §911(a)(1), Nov. 8, 1985, 99 Stat. 683; Pub. L. 99–190, §101(b) [title VIII, §8112(a)(1)], Dec. 19, 1985, 99 Stat. 1185, 1223; Pub. L. 100–180, div. A, title VIII, §805(a), Dec. 4, 1987, 101 Stat. 1126; Pub. L. 100–370, §1(f)(2)(A), July 19, 1988, 102 Stat. 846; Pub. L. 100–456, div. A, title III, §322(a), title VIII, §832(a), Sept. 29, 1988, 102 Stat. 1952, 2023; Pub. L. 100–700, §8(b)(1), Nov. 19, 1988, 102 Stat. 4636; Pub. L. 101–189, div. A, title III, §311(a)(1), Nov. 29, 1989, 103 Stat. 1411; Pub. L. 101–510, div. A, title XIII, §1301(10), Nov. 5, 1990, 104 Stat. 1668; Pub. L. 102–190, div. A, title III, §346(a), Dec. 5, 1991, 105 Stat. 1346; Pub. L. 102–484, div. A, title XIII, §1352(b), Oct. 23, 1992, 106 Stat. 2559; Pub. L. 103–355, title II, §2101(a)(5), (b), Oct. 13, 1994, 108 Stat. 3307, 3308; Pub. L. 104–106, div. D, title XLIII, §4321(b)(9)(A), Feb. 10, 1996, 110 Stat. 672; Pub. L. 105–85, div. A, title VIII, §808(a)(1), Nov. 18, 1997, 111 Stat. 1836; Pub. L. 111–350, §5(b)(19)(C), (D), Jan. 4, 2011, 124 Stat. 3844; Pub. L. 112–81, div. A, title VIII, §803(a), Dec. 31, 2011, 125 Stat. 1485; Pub. L. 113–66, div. A, title VIII, §811(a), Dec. 26, 2013, 127 Stat. 806; Pub. L. 113–67, div. A, title VII, §702(a)(2), Dec. 26, 2013, 127 Stat. 1189; Pub. L. 113–291, div. A, title VIII, §857, Dec. 19, 2014, 128 Stat. 3460.

Prior Provisions

A prior section 3744 was renumbered section 7274 of this title.

Amendments

2021—Pub. L. 116–283, §1832(d)(1), transferred subsec. (e) of section 2324 of this title to this section, struck out subsec. (e) designation and heading "Specific Costs Not Allowable" at beginning, and redesignated pars. (1), (3), (4), and (2) as subsecs. (a) to (d), respectively.

Subsec. (a). Pub. L. 116–283, §1832(d)(2)(A), (B), after redesignation of par. (1) of section 2324(e) of this title as subsec. (a) of this section, inserted heading and redesignated subpars. (A) to (Q) as pars. (1) to (17), respectively, including two subpars. (P) both redesignated par. (16).

Subsec. (a)(15). Pub. L. 116–283, §1832(d)(2)(C), substituted "section 3750 of this title" for "subsection (k)".

Subsec. (a)(17). Pub. L. 116–283, §1832(d)(2)(D), substituted "section 3750(c) of this title" for "subsection (k)(2)".

Subsec. (b). Pub. L. 116–283, §1832(d)(3)(A), (B), after redesignation of par. (3) of section 2324(e) of this title as subsec. (b) of this section, inserted heading and redesignated subpars. (A) to (C) as pars. (1) to (3), respectively.

Subsec. (b)(1). Pub. L. 116–283, §1832(d)(3)(A), (C), inserted heading, substituted "subsection (d)" for "paragraph (2)" and "subsections (a)(13) and (a)(14)" for "paragraphs (1)(M) and (1)(N)" in introductory provisions, and redesignated cls. (i) to (iii) of former section 2324(e)(3)(A) as subpars. (A) to (C), respectively.

Subsec. (b)(2). Pub. L. 116–283, §1832(d)(3)(D), inserted heading, realigned margin, redesignated cls. (i) and (ii) of former section 2324(e)(3)(B) as subpars. (A) and (B), respectively, and, in subpar. (A), substituted "paragraph (1)" for "subparagraph (A)".

Subsec. (b)(3). Pub. L. 116–283, §1832(d)(3)(E), inserted heading, realigned margin, and substituted "paragraph (1)" for "subparagraph (A)".

Subsec. (c). Pub. L. 116–283, §1832(d)(4), after redesignation of par. (4) of section 2324(e)(3) of this title as subsec. (c) of this section, inserted heading and substituted "this subchapter" for "this section".

Subsec. (d). Pub. L. 116–283, §1832(d)(5)(A), (B), after redesignation of par. (2) of section 2324(e)(3) of this title as subsec. (d) of this section, inserted heading, redesignated subpars. (A) to (C) as pars. (1) to (3), respectively, and realigned margins.

Subsec. (d)(1). Pub. L. 116–283, §1832(d)(5)(A), (C), inserted heading and substituted "subsections (a)(13) and (a)(14)" for "paragraphs (1)(M) and (1)(N)".

Subsec. (d)(2). Pub. L. 116–283, §1832(d)(5)(D), inserted par. heading, substituted "paragraph (1)" for "subparagraph (A)" in introductory provisions, redesignated cls. (i) and (ii) of former section 2324(e)(2)(B) as subpars. (A) and (B), respectively, and inserted subpar. headings.

Subsec. (d)(3). Pub. L. 116–283, §1832(d)(5)(E), inserted heading and substituted "Paragraph (1)" for "Subparagraph (A)".

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.

Regulations

Pub. L. 99–145, title IX, §911(b), Nov. 8, 1985, 99 Stat. 685, provided that:

"(1) Not later than 150 days after the date of the enactment of this Act [Nov. 8, 1985], the Secretary of Defense shall prescribe the regulations required by subsections (e) and (f) of [former] section 2324 of title 10, United States Code [see 10 U.S.C. 3744, 3745], as added by subsection (a). Such regulations shall be published in accordance with section 22 of the Office of Federal Procurement Policy Act ([former] 41 U.S.C. 418b) [now 41 U.S.C. 1707].

"(2) The Secretary shall review such regulations at least once every five years. The results of each such review shall be made public."

¹ So in original. There are two pars. (16).

§3745. Required regulations

(a) In General.—The Federal Acquisition Regulation shall contain provisions on the allowability of contractor costs. Such provisions shall define in detail and in specific terms those costs which are unallowable, in whole or in part, under covered contracts.

(b) Specific Items.—The regulations shall, at a minimum, clarify the cost principles applicable to contractor costs of the following:

(1) Air shows.

(2) Membership in civic, community, and professional organizations.

(3) Recruitment.

(4) Employee morale and welfare.

(5) Actions to influence (directly or indirectly) executive branch action on regulatory and contract matters (other than costs incurred in regard to contract proposals pursuant to solicited or unsolicited bids).

(6) Community relations.

(7) Dining facilities.

(8) Professional and consulting services, including legal services.

(9) Compensation.

(10) Selling and marketing.

(11) Travel.

(12) Public relations.

(13) Hotel and meal expenses.

(14) Expense of corporate aircraft.

(15) Company-furnished automobiles.

(16) Advertising.

(17) Conventions.

(c) Additional Requirements.—

(1) When questioned costs may be resolved.—The Federal Acquisition Regulation shall require that a contracting officer not resolve any questioned costs until he has obtained—

(A) adequate documentation with respect to such costs; and

(B) the opinion of the contract auditor on the allowability of such costs.

(2) Presence of contract auditor.—The Federal Acquisition Regulation shall provide that, to the maximum extent practicable, the contract auditor be present at any negotiation or meeting with the contractor regarding a determination of the allowability of indirect costs of the contractor.

(3) Settlement to reflect amount of individual questioned costs.—The Federal Acquisition Regulation shall require that all categories of costs designated in the report of the contract auditor as questioned with respect to a proposal for settlement be resolved in such a manner that the amount of the individual questioned costs that are paid will be reflected in the settlement.

(Added and amended Pub. L. 116–283, div. A, title XVIII, §1832(a), (e), Jan. 1, 2021, 134 Stat. 4218, 4221.)

Editorial Notes

Codification

The text of subsec. (f) of section 2324 of this title, which was transferred to this section and amended by Pub. L. 116–283, §1832(e), was based on Pub. L. 99–145, title IX, §911(a)(1), Nov. 8, 1985, 99 Stat. 683; Pub. L. 100–456, div. A, title VIII, §826(a), Sept. 29, 1988, 102 Stat. 1952; Pub. L. 100–463, title VIII, §8105(a), Oct. 1, 1988, 102 Stat. 2270–36; Pub. L. 100–526, title I, §106(a)(2), Oct. 24, 1988, 102 Stat. 2625; Pub. L. 102–484, div. A, title X, §1052(26)(A), Oct. 23, 1992, 106 Stat. 2500; Pub. L. 103–355, title II, §2101(a)(6), (c), Oct. 13, 1994, 108 Stat. 3307, 3308, as amended by Pub. L. 104–106, div. D, title XLIII, §4321(a)(5), Feb. 10, 1996, 110 Stat. 671.

Another section 1832(e) of Pub. L. 116–283 amended section 3746 of this title.

Prior Provisions

A prior section 3745 was renumbered section 7275 of this title.

Amendments

2021—Pub. L. 116–283, §1832(e)(1)(A), transferred subsec. (f) of section 2324 of this title to this section and struck out subsec. (f) designation and heading "Required Regulations" at beginning.

Subsec. (a). Pub. L. 116–283, §1832(e)(1)(B), (2), redesignated first two sentences of par. (1) of section 2324(f) of this title as subsec. (a) of this section and inserted heading. Third sentence designated subsec. (b).

Subsec. (b). Pub. L. 116–283, §1832(e)(1)(C), (3), designated third sentence of subsec. (a) as subsec. (b), inserted heading, and redesignated subpars. (A) to (Q) as pars. (1) to (17), respectively.

Subsec. (c). Pub. L. 116–283, §1832(e)(1)(D), (E), (4), redesignated pars. (2) to (4) of section 2324(f) of this title collectively as subsec. (c) of this section and individually as pars. (1) to (3), respectively, thereof, inserted subsec. and par. headings, and realigned margins.

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.

Regulations

For requirement to prescribe and periodically review regulations required by this section (formerly subsec. (f) of section 2324 of this title), see section 911(b) of Pub. L. 99–145, set out as a note under section 3744 of this title.

§3746. Applicability of regulations to subcontractors

The regulations referred to in sections 3744 and 3745(a) and (b) of this title shall require prime contractors of a covered contract, to the maximum extent practicable, to apply the provisions of such regulations to all subcontractors of the covered contract.

(Added and amended Pub. L. 116–283, div. A, title XVIII, §1832(a), (e), Jan. 1, 2021, 134 Stat. 4218, 4221.)

Editorial Notes

Codification

The text of subsec. (g) of section 2324 of this title, which was transferred to this section and amended by Pub. L. 116–283, §1832(e), was based on Pub. L. 99–145, title IX, §911(a)(1), Nov. 8, 1985, 99 Stat. 684; Pub. L. 103–355, title II, §2101(a)(7), Oct. 13, 1994, 108 Stat. 3308.

Another section 1832(e) of Pub. L. 116–283 amended section 3745 of this title.

Prior Provisions

A prior section 3746 was renumbered section 7276 of this title.

Amendments

2021—Pub. L. 116–283, §1832(e), transferred subsec. (g) of section 2324 of this title to this section, struck out subsec. (g) designation and heading "Applicability of Regulations to Subcontractors" at beginning, and substituted "sections 3744 and 3745(a) and (b) of this title" for "subsections (e) and (f)(1)".

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.

§3747. Contractor certification

(a) Content and Form.—A proposal for settlement of indirect costs applicable to a covered contract shall include a certification by an official of the contractor that, to the best of the certifying official's knowledge and belief, all indirect costs included in the proposal are allowable. Any such certification shall be in a form prescribed in the Federal Acquisition Regulation.

(b) Waiver.—The head of the agency or the Secretary of the military department concerned may, in an exceptional case, waive the requirement for certification under subsection (a) in the case of any contract if the head of the agency or the Secretary—

(1) determines in such case that it would be in the interest of the United States to waive such certification; and

(2) states in writing the reasons for that determination and makes such determination available to the public.

(Added and amended Pub. L. 116–283, div. A, title XVIII, §1832(a), (f), Jan. 1, 2021, 134 Stat. 4218, 4221.)

Editorial Notes

Codification

The text of subsec. (h) of section 2324 of this title, which was transferred to this section and amended by Pub. L. 116–283, §1832(f), was based on Pub. L. 99–145, title IX, §911(a)(1), Nov. 8, 1985, 99 Stat. 684; Pub. L. 99–190, §101(b) [title VIII, §8112(a)(2)], Dec. 19, 1985, 99 Stat. 1185, 1223; Pub. L. 103–355, title II, §2101(a)(8), Oct. 13, 1994, 108 Stat. 3308; Pub. L. 104–106, div. D, title XLIII, §4321(b)(9)(B), Feb. 10, 1996, 110 Stat. 672.

Prior Provisions

A prior section 3746 was renumbered section 7276 of this title.

Amendments

2021—Pub. L. 116–283, §1832(f)(1)(A), transferred subsec. (h) of section 2324 of this title to this section and struck out subsec. (h) designation and heading "Contractor Certification Required" at beginning.

Subsec. (a). Pub. L. 116–283, §1832(f)(1)(B), (2), redesignated par. (1) of section 2324(h) of this title as subsec. (a) of this section and inserted heading.

Subsec. (b). Pub. L. 116–283, §1832(f)(1)(B), (3), redesignated par. (2) of section 2324(h) of this title as subsec. (b) of this section, inserted heading, substituted "subsection (a)" for "paragraph (1)" in introductory provisions, and redesignated subpars. (A) and (B) as pars. (1) and (2), respectively.

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.

§3748. Penalties for submission of cost known as not allowable

The submission to an agency of a proposal for settlement of costs for any period after such costs have been accrued that includes a cost that is expressly specified by statute or regulation as being unallowable, with the knowledge that such cost is unallowable, shall be subject to the provisions of section 287 of title 18 and section 3729 of title 31.

(Added and amended Pub. L. 116–283, div. A, title XVIII, §1832(a), (g), Jan. 1, 2021, 134 Stat. 4218, 4222.)

Editorial Notes

Codification

The text of subsec. (i) of section 2324 of this title, which was transferred to this section and amended by Pub. L. 116–283, §1832(g), was based on Pub. L. 99–145, title IX, §911(a)(1), Nov. 8, 1985, 99 Stat. 684; Pub. L. 103–355, title II, §2101(a)(9), Oct. 13, 1994, 108 Stat. 3308.

Prior Provisions

A prior section 3748 was renumbered section 7278 of this title.

Amendments

2021—Pub. L. 116–283, §1832(g), transferred subsec. (i) of section 2324 of this title to this section and struck out subsec. (i) designation and heading "Penalties for Submission of Cost Known as Not Allowable" at beginning.

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.

§3749. Burden of proof on contractor

In a proceeding before the Armed Services Board of Contract Appeals, the United States Court of Federal Claims, or any other Federal court in which the reasonableness of indirect costs for which a contractor seeks reimbursement from the Department of Defense is in issue, the burden of proof shall be upon the contractor to establish that those costs are reasonable.

(Added and amended Pub. L. 116–283, div. A, title XVIII, §1832(a), (h), Jan. 1, 2021, 134 Stat. 4218, 4222.)

Editorial Notes

Codification

The text of subsec. (j) of section 2324 of this title, which was transferred to this section and amended by Pub. L. 116–283, §1832(h), was based on Pub. L. 100–370, §1(f)(3)(A), July 19, 1988, 102 Stat. 846; Pub. L. 103–355, title II, §2101(a)(10), Oct. 13, 1994, 108 Stat. 3308.

Prior Provisions

A prior section 3749 was renumbered section 7279 of this title.

Amendments

2021—Pub. L. 116–283, §1832(h), transferred subsec. (j) of section 2324 of this title to this section and struck out subsec. (j) designation and heading "Contractor To Have Burden of Proof" at beginning.

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.

§3750. Proceeding costs not allowable

(a) Definitions.—In this section:

(1) Costs.—The term "costs", with respect to a proceeding—

(A) means all costs incurred by a contractor or subcontractor, or personal services contractor, whether before or after the commencement of any such proceeding; and

(B) includes—

(i) administrative and clerical expenses;

(ii) the cost of legal services, including legal services performed by an employee of the contractor or subcontractor, or personal services contractor;

(iii) the cost of the services of accountants and consultants retained by the contractor or subcontractor, or personal services contractor; and

(iv) the pay of directors, officers, and employees of the contractor or subcontractor, or personal services contractor for time devoted by such directors, officers, and employees to such proceeding.

(2) Penalty.—The term "penalty" does not include restitution, reimbursement, or compensatory damages.

(3) Proceedings.—The term "proceeding" includes an investigation.

(b) In General.—Except as otherwise provided in this section, costs incurred by a contractor or subcontractor, or personal services contractor in connection with any criminal, civil, or administrative proceeding commenced by the United States, by a State, or by a contractor or subcontractor, or personal services contractor employee submitting a complaint under section 4701 of this title are not allowable as reimbursable costs under a covered contract, subcontract, or personal services contract if the proceeding—

(1) relates to a violation of, or failure to comply with, a Federal or State statute or regulation or to any other activity described in section 4701(a)(1) of this title; and

(2) results in a disposition described in subsection (c).

(c) Covered Dispositions.—A disposition referred to in subsection (b)(2) is any of the following:

(1) In the case of a criminal proceeding, a conviction (including a conviction pursuant to a plea of nolo contendere) by reason of the violation or failure referred to in subsection (b).

(2) In the case of a civil or administrative proceeding involving an allegation of fraud or similar misconduct, a determination of contractor or subcontractor, or personal services contractor liability on the basis of the violation or failure referred to in subsection (b).

(3) In the case of any civil or administrative proceeding, the imposition of a monetary penalty or an order to take corrective action under section 4701 of this title by reason of the violation or failure referred to in subsection (b).

(4) A final decision—

(A) to debar or suspend the contractor or subcontractor, or personal services contractor;

(B) to rescind or void the contract, subcontract, or personal services contract; or

(C) to terminate the contract, subcontract, or personal services contract for default;

by reason of the violation or failure referred to in subsection (b).

(5) A disposition of the proceeding by consent or compromise if such action could have resulted in a disposition described in paragraphs (1), (2), (3), or (4).

(d) Costs Allowed by Settlement Agreement in Proceeding Commenced by United States.—In the case of a proceeding referred to in subsection (b) that is commenced by the United States and is resolved by consent or compromise pursuant to an agreement entered into by a contractor or subcontractor, or personal services contractor and the United States, the costs incurred by the contractor or subcontractor, or personal services contractor in connection with such proceeding that are otherwise not allowable as reimbursable costs under such subsection may be allowed to the extent specifically provided in such agreement.

(e) Costs Specifically Authorized in Proceeding Commenced by State.—In the case of a proceeding referred to in subsection (b) that is commenced by a State, the head of the agency or Secretary of the military department concerned that awarded the covered contract, subcontract, or personal services contract involved in the proceeding may allow the costs incurred by the contractor or subcontractor, or personal services contractor in connection with such proceeding as reimbursable costs if the agency head or Secretary determines, in accordance with the Federal Acquisition Regulation, that the costs were incurred as a result of (1) a specific term or condition of the contract, subcontract, or personal services contract, or (2) specific written instructions of the agency or military department.

(f) Other Allowable Costs.—

(1) In general.—Except as provided in paragraph (3), costs incurred by a contractor or subcontractor, or personal services contractor in connection with a criminal, civil, or administrative proceeding commenced by the United States or a State in connection with a covered contract, subcontract, or personal services contract may be allowed as reimbursable costs under the contract, subcontract, or personal services contract if such costs are not disallowable under subsection (b), but only to the extent provided in paragraph (2).

(2) Amount of Allowable Costs.—

(A) Maximum amount allowed.—The amount of the costs allowable under paragraph (1) in any case may not exceed the amount equal to 80 percent of the amount of the costs incurred, to the extent that such costs are determined to be otherwise allowable and allocable under the Federal Acquisition Regulation.

(B) Content of regulations.—Regulations issued for the purpose of subparagraph (A) shall provide for appropriate consideration of—

(i) the complexity of procurement litigation;

(ii) generally accepted principles governing the award of legal fees in civil actions involving the United States as a party; and

(iii) such other factors as may be appropriate.

(3) When otherwise allowable costs are not allowable.—In the case of a proceeding referred to in paragraph (1), contractor or subcontractor, or personal services contractor costs otherwise allowable as reimbursable costs under this subsection are not allowable if—

(A) such proceeding involves the same contractor or subcontractor, or personal services contractor misconduct alleged as the basis of another criminal, civil, or administrative proceeding; and

(B) the costs of such other proceeding are not allowable under subsection (b).

(Added and amended Pub. L. 116–283, div. A, title XVIII, §1832(a), (i), Jan. 1, 2021, 134 Stat. 4218, 4222; Pub. L. 117–81, div. A, title XVII, §1701(b)(11), Dec. 27, 2021, 135 Stat. 2134.)

Editorial Notes

Codification

The text of subsec. (k) of section 2324 of this title, which was transferred to this section and amended by Pub. L. 116–283, §1832(i), was based on Pub. L. 100–700, §8(b), Nov. 19, 1988, 102 Stat. 4636; Pub. L. 101–189, div. A, title VIII, §853(a)(1)(A), (b)(3), Nov. 29, 1989, 103 Stat. 1518; Pub. L. 103–355, title II, §2101(a)(11), Oct. 13, 1994, 108 Stat. 3308; Pub. L. 112–239, div. A, title VIII, §827(g), Jan. 2, 2013, 126 Stat. 1836; Pub. L. 114–261, §1(b)(1), Dec. 14, 2016, 130 Stat. 1362.

Prior Provisions

Prior sections 3750 to 3756 were renumbered sections 7280 to 7286 of this title, respectively.

Amendments

2021—Subsec. (a). Pub. L. 116–283, §1832(i)(1)(A), (B), redesignated par. (6) of section 2324(k) of this title as subsec. (a) of this section, inserted heading, substituted "In this section" for "In this subsection" in introductory provisions, and redesignated subpars. (B), (C), and (A) as pars. (1) to (3), respectively.

Subsec. (a)(1). Pub. L. 116–283, §1832(i)(1)(C), inserted heading and redesignated cls. (i) and (ii) and its subcls. (I) to (IV) as subpars. (A) and (B) and cls. (i) to (iv), respectively.

Subsec. (a)(2), (3). Pub. L. 116–283, §1832(i)(1)(D), (E), inserted heading.

Subsec. (b). Pub. L. 116–283, §1832(i)(2), (3), redesignated par. (1) of subsec. (k) of section 2324 of this title as subsec. (b) of this section, inserted heading, substituted "this section" for "this subsection" and "section 4701" for "section 2409", redesignated inline subpars. (A) and (B) as pars. (1) and (2), respectively, and reformatted text, and substituted "in section 4701(a)(1)" for "in subparagraphs (A) through (C) of section 2409(a)(1)" in par. (1) and "subsection (c)" for "paragraph (2)"in par. (2).

Subsec. (c). Pub. L. 116–283, §1832(i)(2), (4)(A)–(D), redesignated par. (2) of section 2324(k) of this title as subsec. (c) of this section, inserted heading, substituted "subsection (b)(2)" for "paragraph (1)(B)" in introductory provisions, and "subsection (b)" for "paragraph (1)" wherever appearing, and redesignated subpars. (A) to (E) as pars. (1) to (5), respectively.

Subsec. (c)(3). Pub. L. 116–283, §1832(i)(4)(E), substituted "section 4701" for "section 2409".

Subsec. (c)(4). Pub. L. 116–283, §1832(i)(4)(F), redesignated cls. (i) to (iii) as subpars. (A) to (C), respectively.

Subsec. (c)(5). Pub. L. 116–283, §1832(i)(4)(G), substituted "paragraphs (1), (2), (3), or (4)" for "subparagraph (A), (B), (C), or (D)".

Subsec. (d). Pub. L. 116–283, §1832(i)(2), (5), redesignated par. (3) of section 2324(k) of this title as subsec. (d) of this section, inserted heading, and substituted "subsection (b)" for "paragraph (1)" and "such subsection" for "such paragraph".

Subsec. (e). Pub. L. 116–283, §1832(i)(2), (6), redesignated par. (4) of section 2324(k) of this title as subsec. (e) of this section, inserted heading, and substituted "subsection (b)" for "paragraph (1)", "(1)" for "(A)", and "(2)" for "(B)".

Subsec. (f). Pub. L. 116–283, §1832(i)(2), (7)(A), (B), redesignated par. (5) of section 2324(k) of this title as subsec. (f) of this section, inserted heading, and redesignated subpars. (A) to (C) as pars. (1) to (3), respectively, and realigned margins.

Subsec. (f)(1). Pub. L. 116–283, §1832(i)(7)(A), (C), inserted heading and substituted "paragraph (3)" for "subparagraph (C)", "subsection (b)" for "paragraph (1)", and "paragraph (2)" for "subparagraph (B)".

Subsec. (f)(2). Pub. L. 116–283, §1832(i)(7)(D)(i), (ii), inserted heading and redesignated cls. (i) and (ii) as subpars. (A) and (B), respectively.

Subsec. (f)(2)(A). Pub. L. 116–283, §1832(i)(7)(D)(i), (iii), inserted heading and substituted "paragraph (1)" for "subparagraph (A)".

Subsec. (f)(2)(B). Pub. L. 116–283, §1832(i)(7)(D)(iv), (E), inserted heading, substituted "subparagraph (A)" for "clause (i)", inserted dash after "consideration of", and reorganized remainder of existing text into designated cls. (i) to (iii).

Subsec. (f)(3). Pub. L. 116–283, §1832(i)(7)(F), as amended by Pub. L. 117–81, §1701(b)(11), inserted heading, substituted "paragraph (1)" for "subparagraph (A)" and "under this subsection" for "under this paragraph", inserted dash after "not allowable if", redesignated inline cls. (i) and (ii) as subpars. (A) and (B), respectively, and reformatted text, and, in subpar. (B), substituted "subsection (b)" for "paragraph (1)".

Statutory Notes and Related Subsidiaries

Effective Date of 2021 Amendment

Amendment by Pub. L. 117–81 applicable as if included in the enactment of title XVIII of Pub. L. 116–283 as enacted, see section 1701(a)(2) of Pub. L. 117–81, set out in a note preceding section 3001 of this title and Effective Date note below.

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.

Regulations

Pub. L. 100–700, §8(d), Nov. 19, 1988, 102 Stat. 4638, provided that: "The regulations necessary for the implementation of section 306(e) of the Federal Property and Administrative Services Act of 1949 [now 41 U.S.C. 4304] (as added by subsection (a)) and section 2324(k)(5) of title 10, United States Code [see 10 U.S.C. 3750(f)] (as added by subsection (b))—

"(1) shall be prescribed not later than 120 days after the date of the enactment of this Act [Nov. 19, 1988]; and

"(2) shall apply to contracts entered into more than 30 days after the date on which such regulations are issued."

SUBCHAPTER II—OTHER ALLOWABLE COST PROVISIONS

        

Editorial Notes

Amendments

2021—Pub. L. 117–81, div. A, title XVII, §1701(f)(5), (h)(2), Dec. 27, 2021, 135 Stat. 2139, 2140, amended subchapter heading generally and struck out items 3764 "Excessive pass-through charges" and 3765 "Institutions of higher education: reimbursement of indirect costs under Department of Defense contracts". Prior to amendment, subchapter heading read as follows: "SUBCHAPTER II—OTHER ALLOWABLE COST PROVISIONS".

Statutory Notes and Related Subsidiaries

Report and Regulations on Excessive Pass-Through Charges

Pub. L. 109–364, div. A, title VIII, §852, Oct. 17, 2006, 120 Stat. 2340, as amended by Pub. L. 113–291, div. A, title X, §1071(b)(3)(B), Dec. 19, 2014, 128 Stat. 3506; Pub. L. 115–232, div. A, title VIII, §836(f)(5), Aug. 13, 2018, 132 Stat. 1871, provided that:

"(a) Comptroller General Report on Excessive Pass-Through Charges.—

"(1) In general.—Not later than 180 days after the date of the enactment of this Act [Oct. 17, 2006], the Comptroller General shall issue a report on pass-through charges on contracts or subcontracts (or task or delivery orders) that are entered into for or on behalf of the Department of Defense.

"(2) Matters covered.—The report issued under this subsection—

"(A) shall assess the extent to which the Department of Defense has paid excessive pass-through charges to contractors who provided little or no value to the performance of the contract;

"(B) shall assess the extent to which the Department has been particularly vulnerable to excessive pass-through charges on any specific category of contracts or by any specific category of contractors (including any category of small business); and

"(C) shall determine the extent to which any prohibition on excessive pass-through charges would be inconsistent with existing commercial practices for any specific category of contracts or have an unjustified adverse effect on any specific category of contractors (including any category of small business).

"(b) Regulations Required.—

"(1) In general.—Not later than May 1, 2007, the Secretary of Defense shall prescribe regulations to ensure that pass-through charges on contracts or subcontracts (or task or delivery orders) that are entered into for or on behalf of the Department of Defense are not excessive in relation to the cost of work performed by the relevant contractor or subcontractor.

"(2) Scope of regulations.—The regulations prescribed under this subsection—

"(A) shall not apply to any firm, fixed-price contract or subcontract (or task or delivery order) that is—

"(i) awarded on the basis of adequate price competition; or

"(ii) for the acquisition of a commercial product or a commercial service, as defined in sections 103 and 103a, respectively, of title 41, United States Code; and

"(B) may include such additional exceptions as the Secretary determines to be necessary in the interest of the national defense.

"(3) Definition.—In this section, the term 'excessive pass-through charge', with respect to a contractor or subcontractor that adds no, or negligible, value to a contract or subcontract, means a charge to the Government by the contractor or subcontractor that is for overhead or profit on work performed by a lower-tier contractor or subcontractor (other than charges for the direct costs of managing lower-tier contracts and subcontracts and overhead and profit based on such direct costs).

"(4) Report.—Not later than one year after the date of the enactment of this Act [Oct. 17, 2006], the Secretary of Defense shall submit to the congressional defense committees [Committees on Armed Services and Appropriations of the Senate and the House of Representatives] a report on the steps taken to implement the requirements of this subsection, including—

"(A) any standards for determining when no, or negligible, value has been added to a contract by a contractor or subcontractor;

"(B) any procedures established for preventing excessive pass-through charges; and

"(C) any exceptions determined by the Secretary to be necessary in the interest of the national defense.

"(5) Effective date.—The regulations prescribed under this subsection shall apply to contracts awarded for or on behalf of the Department of Defense on or after May 1, 2007."

Reimbursement of Indirect Costs of Institutions of Higher Education Under Department of Defense Contracts

Pub. L. 103–160, div. A, title VIII, §841, Nov. 30, 1993, 107 Stat. 1719, as amended by Pub. L. 105–244, title I, §102(a)(2)(C), Oct. 7, 1998, 112 Stat. 1617, provided that:

"(a) Prohibition.—The Secretary of Defense may not by regulation place a limitation on the amount that the Department of Defense may reimburse an institution of higher education for allowable indirect costs incurred by the institution for work performed for the Department of Defense under a Department of Defense contract unless that same limitation is applied uniformly to all other organizations performing similar work for the Department of Defense under Department of Defense contracts.

"(b) Waiver.—The Secretary of Defense may waive the application of the prohibition in subsection (a) in the case of a particular institution of higher education if the governing body of the institution requests the waiver in order to simplify the overall management by that institution of cost reimbursements by the Department of Defense for contracts awarded by the Department to the institution.

"(c) Definitions.—In this section:

"(1) The term 'allowable indirect costs' means costs that are generally considered allowable as indirect costs under regulations that establish the cost reimbursement principles applicable to an institution of higher education for purposes of Department of Defense contracts.

"(2) The term 'institution of higher education' has the meaning given such term in section 101 of the Higher Education Act of 1965 [20 U.S.C. 1001]."

§3761. Restructuring costs

(a) Limitation on Payment of Restructuring Costs.—The Secretary of Defense may not pay, under subchapter I, a defense contractor for restructuring costs associated with a business combination of the contractor that occurs after November 18, 1997, unless the Secretary determines in writing either—

(1) that the amount of projected savings for the Department of Defense associated with the restructuring will be at least twice the amount of the costs allowed; or

(2) that the amount of projected savings for the Department of Defense associated with the restructuring will exceed the amount of the costs allowed and that the business combination will result in the preservation of a critical capability that otherwise might be lost to the Department.

(b) Limitation on Delegation.—The Secretary may not delegate the authority to make a determination under subsection (a), with respect to a business combination, to an official of the Department of Defense—

(1) below the level of an Assistant Secretary of Defense for cases in which the amount of restructuring costs is expected to exceed $25,000,000 over a 5-year period; or

(2) below the level of the Director of the Defense Contract Management Agency for all other cases.

(c) Definition.—In this section, the term "business combination" includes a merger or acquisition.

(Added Pub. L. 105–85, div. A, title VIII, §804(a)(1), Nov. 18, 1997, 111 Stat. 1832, §2325; amended Pub. L. 106–65, div. A, title X, §1066(a)(19), Oct. 5, 1999, 113 Stat. 771; Pub. L. 108–375, div. A, title VIII, §819, Oct. 28, 2004, 118 Stat. 2016; Pub. L. 112–239, div. A, title X, §1076(g)(2), Jan. 2, 2013, 126 Stat. 1955; renumbered §3761 and amended Pub. L. 116–283, div. A, title XVIII, §1832(j)(2), (3), Jan. 1, 2021, 134 Stat. 4225.)

Editorial Notes

Amendments

2021—Pub. L. 116–283, §1832(j)(2), renumbered section 2325 of this title as this section.

Subsec. (a). Pub. L. 116–283, §1832(j)(3)(B), (E), in introductory provisions, struck out par. (1) designation before "The Secretary" and substituted "subchapter I" for "section 2324 of this title" and redesignated subpars. (A) and (B) as pars. (1) and (2), respectively. Former par. (2) of subsec. (a) redesignated subsec. (b).

Subsec. (b). Pub. L. 116–283, §1832(j)(3)(C)–(E), redesignated par. (2) of subsec. (a) as subsec. (b), inserted heading, substituted "subsection (a)" for "paragraph (1)" in introductory provisions, and redesignated subpars. (A) and (B) as pars. (1) and (2), respectively. Former subsec. (b) redesignated (c).

Subsec. (c). Pub. L. 116–283, §1832(j)(3)(A), redesignated subsec. (b) as (c).

2013—Subsec. (b). Pub. L. 112–239 redesignated subsec. (c) as (b) and struck out former subsec. (b) which required reports relating to business combinations occurring on or after August 15, 1994.

2004—Subsec. (a)(2). Pub. L. 108–375 substituted "paragraph (1), with respect to a business combination, to an official of the Department of Defense—" for "paragraph (1) to an official of the Department of Defense below the level of an Assistant Secretary of Defense." and added subpars. (A) and (B).

1999—Subsec. (a)(1). Pub. L. 106–65 inserted "that occurs after November 18, 1997," after "of the contractor" in introductory provisions.

Statutory Notes and Related Subsidiaries

Effective Date of 2021 Amendment

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 a note preceding section 3001 of this title.

Effective Date

Pub. L. 105–85, div. A, title VIII, §804(c), Nov. 18, 1997, 111 Stat. 1834, provided that: "Section 2325(a) of title 10, United States Code [now 10 U.S.C. 3761(a)], as added by subsection (a), shall apply with respect to business combinations that occur after the date of the enactment of this Act [Nov. 18, 1997]."

§3762. Independent research and development costs: allowable costs

(a) Regulations.—The Secretary of Defense shall prescribe regulations governing the payment by the Department of Defense of expenses incurred by contractors for independent research and development costs. Such regulations shall provide that expenses incurred for independent research and development shall be reported independently from other allowable indirect costs.

(b) Costs Treated as Fair and Reasonable, and Allowable, Expenses.—The regulations prescribed under subsection (a) shall provide that independent research and development costs shall be considered a fair and reasonable, and allowable, indirect expense on Department of Defense contracts.

(c) Additional Controls.—Subject to subsection (d), the regulations prescribed under subsection (a) may include the following provisions:

(1) Controls on the reimbursement of costs to the contractor for expenses incurred for independent research and development to ensure that such costs were incurred for independent research and development.

(2) Implementation of regular methods for transmission—

(A) from the Department of Defense to contractors, in a reasonable manner, of timely and comprehensive information regarding planned or expected needs of the Department of Defense for future technology and advanced capability; and

(B) from contractors to the Department of Defense, in a reasonable manner, of information regarding progress by the contractor on the independent research and development programs of the contractor.

(d) Limitations on Regulations.—Regulations prescribed under subsection (a) may not include provisions that would infringe on the independence of a contractor to choose which technologies to pursue in its independent research and development program if the chief executive officer of the contractor determines that expenditures will advance the needs of the Department of Defense for future technology and advanced capability as transmitted pursuant to subsection (c)(2)(A).

(e) Effective Date.—The regulations prescribed under subsection (a) shall apply to indirect costs incurred on or after October 1, 2017.

(Added Pub. L. 101–510, div. A, title VIII, §824(a)(1), Nov. 5, 1990, 104 Stat. 1603, §2372; amended Pub. L. 102–25, title VII, §701(c), Apr. 6, 1991, 105 Stat. 113; Pub. L. 102–190, div. A, title VIII, §802(a)(1), Dec. 5, 1991, 105 Stat. 1412; Pub. L. 102–484, div. A, title X, §1052(27), Oct. 23, 1992, 106 Stat. 2500; Pub. L. 103–35, title II, §201(c)(5), May 31, 1993, 107 Stat. 98; Pub. L. 104–106, div. D, title XLIII, §4321(b)(11), Feb. 10, 1996, 110 Stat. 672; Pub. L. 114–328, div. A, title VIII, §824(a)(1), Dec. 23, 2016, 130 Stat. 2277; Pub. L. 115–91, div. A, title X, §1081(a)(35), Dec. 12, 2017, 131 Stat. 1596; renumbered §3762, Pub. L. 116–283, div. A, title XVIII, §1832(j)(2), Jan. 1, 2021, 134 Stat. 4225.)

Editorial Notes

Amendments

2021—Pub. L. 116–283 renumbered section 2372 of this title as this section.

2017—Subsec. (d). Pub. L. 115–91 substituted "subsection (c)(2)(A)" for "subsection (c)(3)(A)".

2016—Pub. L. 114–328 amended section generally. Prior to amendment, section related to payments to contractors for independent research and development and bid and proposal costs.

1996—Subsec. (i)(1). Pub. L. 104–106 substituted "2324(l)" for "2324(m)".

1993—Subsec. (g)(5). Pub. L. 103–35 substituted "section 2506" for "section 2522".

1992—Subsec. (e)(1). Pub. L. 102–484 substituted "on December 4, 1991" for "on the day before the date of the enactment of the National Defense Authorization Act for Fiscal Years 1992 and 1993".

1991—Pub. L. 102–190 substituted section catchline for one which read "Independent research and development" and amended text generally, substituting present provisions for provisions authorizing payment of independent research and development or bid and proposal costs, encouraging contractors to engage in research and development activities, and authorizing advance agreements regarding the manner and extent in which the Department of Defense may pay independent research and development costs or bid and proposal costs.

Subsec. (d)(2)(B). Pub. L. 102–25 substituted "subsection (b), including" for "subsection (b) or".

Statutory Notes and Related Subsidiaries

Effective Date of 2021 Amendment

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 a note preceding section 3001 of this title.

Effective Date of 1996 Amendment

For effective date and applicability of amendment by Pub. L. 104–106, see section 4401 of Pub. L. 104–106, set out as a note under section 2220 of this title.

Effective Date of 1991 Amendment

Pub. L. 102–190, div. A, title VIII, §802(e), Dec. 5, 1991, 105 Stat. 1414, provided that: "The amendments made by this section [amending this section and section 4501 of this title] shall take effect on October 1, 1992, and shall apply to independent research and development and bid and proposal costs incurred by a contractor during fiscal years of that contractor that begin on or after that date."

Regulations

Pub. L. 102–190, div. A, title VIII, §802(b), Dec. 5, 1991, 105 Stat. 1414, provided that: "The Secretary of Defense shall prescribe proposed regulations to implement the amendment made by subsection (a)(1) [amending this section] not later than April 1, 1992, and shall prescribe final regulations for that purpose not later than June 1, 1992."

§3763. Bid and proposal costs: allowable costs

(a) Regulations.—The Secretary of Defense shall prescribe regulations governing the payment by the Department of Defense of expenses incurred by contractors for bid and proposal costs. Such regulations shall provide that expenses incurred for bid and proposal costs shall be reported independently from other allowable indirect costs.

(b) Costs Allowable as Indirect Expenses.—The regulations prescribed under subsection (a) shall provide that bid and proposal costs shall be allowable as indirect expenses on covered contracts, as defined in section 3741 of this title, to the extent that those costs are allocable, reasonable, and not otherwise unallowable by law or under the Federal Acquisition Regulation.

(c) Goal for Reimbursable Bid and Proposal Costs.—The Secretary shall establish a goal each fiscal year limiting the amount of reimbursable bid and proposal costs paid by the Department of Defense to an amount equal to not more than one percent of the total aggregate industry sales to the Department of Defense. To achieve such goal, the Secretary may not limit the payment of allowable bid and proposal costs for the covered year.

(d) Panel.—(1) If the Department of Defense exceeds the goal established under subsection (c) for a fiscal year, within 180 days after exceeding the goal, the Secretary shall establish an advisory panel. The panel shall be supported by the Defense Acquisition University and the National Defense University, including administrative support.

(2) The panel shall be composed of nine individuals who are recognized experts in acquisition and procurement policy appointed by the Secretary. In making such appointments, the Secretary shall ensure that the members of the panel reflect diverse experiences in the public and private sector.

(3) The panel shall review laws, regulations, and practices that contribute to the expenses incurred by contractors for bids and proposals in the fiscal year concerned and recommend changes to such laws, regulations, and practices that may reduce expenses incurred by contractors for bids and proposals.

(4)(A) Not later than six months after the establishment of the panel, the panel shall submit to the Secretary and the congressional defense committees an interim report on the findings of the panel.

(B) Not later than one year after the establishment of the panel, the panel shall submit to the Secretary and the congressional defense committees a final report on the findings of the panel.

(5) The panel shall terminate on the day the panel submits the final report under paragraph (4)(B).

(6) The Secretary of Defense may use amounts available in the Department of Defense Acquisition Workforce Development Fund established under section 1705 of this title to support the activities of the panel established under this subsection.

(e) Effective Date.—The regulations prescribed under subsection (a) shall apply to indirect costs incurred on or after October 1, 2017.

(Added Pub. L. 114–328, div. A, title VIII, §824(b)(1), Dec. 23, 2016, 130 Stat. 2278, §2372a; renumbered §3763 and amended Pub. L. 116–283, div. A, title XVIII, §1832(j)(2), (4), Jan. 1, 2021, 134 Stat. 4225.)

Editorial Notes

Amendments

2021—Pub. L. 116–283, §1832(j)(2), renumbered section 2372a of this title as this section.

Subsec. (b). Pub. L. 116–283, §1832(j)(4), substituted "section 3741" for "section 2324(l)".

Statutory Notes and Related Subsidiaries

Effective Date of 2021 Amendment

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 a note preceding section 3001 of this title.

CHAPTER 275—PROPRIETARY CONTRACTOR DATA AND RIGHTS IN TECHNICAL DATA

        

Editorial Notes

Prior Provisions

A prior chapter 275 "PROPRIETARY CONTRACTOR DATA AND TECHNICAL DATA", as added by Pub. L. 115–232, div. A, title VIII, §801(a), Aug. 13, 2018, 132 Stat. 1828, and consisting of reserved section 3771, was repealed by Pub. L. 116–283, div. A, title XVIII, §1833(a)(1), Jan. 1, 2021, 134 Stat. 4225.

SUBCHAPTER I—RIGHTS IN TECHNICAL DATA

        

§3771. Rights in technical data: regulations

(a) Regulations Required.—

(1) In general.—The Secretary of Defense shall prescribe regulations to define the legitimate interest of the United States and of a contractor or subcontractor in technical data pertaining to an item or process. Such regulations shall be included in regulations of the Department of Defense prescribed as part of the Federal Acquisition Regulation.

(2) Other rights not impaired.—Regulations prescribed under paragraph (1) may not impair—

(A) any right of the United States or of any contractor or subcontractor with respect to patents or copyrights or any other right in technical data otherwise established by law; or

(B) the right of a contractor or subcontractor to receive from a third party a fee or royalty for the use of technical data pertaining to an item or process developed exclusively at private expense by the contractor or subcontractor, except as otherwise specifically provided by law.

(b) Required Provisions.—Regulations prescribed under subsection (a) shall include the following provisions:

(1) Development exclusively with federal funds.—In the case of an item or process that is developed by a contractor or subcontractor exclusively with Federal funds (other than an item or process developed under a contract or subcontract to which regulations under section 9(j)(2) of the Small Business Act (15 U.S.C. 638(j)(2)) apply), the United States shall have the unlimited right to—

(A) use technical data pertaining to the item or process; or

(B) release or disclose the technical data to persons outside the government or permit the use of the technical data by such persons.

(2) Development exclusively at private expense.—Except as provided in paragraphs (3), (4), and (7), in the case of an item or process that is developed by a contractor or subcontractor exclusively at private expense, the contractor or subcontractor may restrict the right of the United States to release or disclose technical data pertaining to the item or process to persons outside the government or permit the use of the technical data by such persons.

(3) Exception to paragraph (2).—Paragraph (2) does not apply to technical data that—

(A) constitutes a correction or change to data furnished by the United States;

(B) relates to form, fit, or function;

(C) is necessary for operation, maintenance, installation, or training (other than detailed manufacturing or process data, including such data pertaining to a major system component); or

(D) is otherwise publicly available or has been released or disclosed by the contractor or subcontractor without restriction on further release or disclosure.

(4) Exception to paragraph (2).—Notwithstanding paragraph (2), the United States may release or disclose technical data to persons outside the Government, or permit the use of technical data by such persons, if—

(A) such release, disclosure, or use—

(i) is necessary for emergency repair and overhaul;

(ii) is a release, disclosure, or use of technical data pertaining to an interface between an item or process and other items or processes necessary for the segregation of an item or process from, or the reintegration of that item or process (or a physically or functionally equivalent item or process) with, other items or processes; or

(iii) is a release or disclosure of technical data (other than detailed manufacturing or process data) to, or use of such data by, a foreign government that is in the interest of the United States and is required for evaluational or informational purposes;

(B) such release, disclosure, or use is made subject to a prohibition that the person to whom the data is released or disclosed may not further release, disclose, or use such data; and

(C) the contractor or subcontractor asserting the restriction is notified of such release, disclosure, or use.

(5) Development with mixed funding.—

(A) In general.—Except as provided in paragraphs (6) and (7), in the case of an item or process that is developed in part with Federal funds and in part at private expense, the respective rights of the United States and of the contractor or subcontractor in technical data pertaining to such item or process shall be established as early in the acquisition process as practicable (preferably during contract negotiations) and shall be based on negotiations between the United States and the contractor, except in any case in which the Secretary of Defense determines, on the basis of criteria established in the regulations, that negotiations would not be practicable.

(B) Factors to be considered.—The establishment of such rights shall be based upon consideration of all of the following factors:

(i) The statement of congressional policy and objectives in section 200 of title 35, the statement of purposes in section 2(b) of the Small Business Innovation Development Act of 1982 (15 U.S.C. 638 note), and the declaration of policy in section 2 of the Small Business Act (15 U.S.C. 631).

(ii) The interest of the United States in increasing competition and lowering costs by developing and locating alternative sources of supply and manufacture.

(iii) The interest of the United States in encouraging contractors to develop at private expense items for use by the Government.

(iv) Such other factors as the Secretary of Defense may prescribe.

(6) Interfaces developed with mixed funding.—Notwithstanding paragraph (5), the United States shall have government purpose rights in technical data pertaining to an interface between an item or process and other items or processes that was developed in part with Federal funds and in part at private expense, except in any case in which the Secretary of Defense determines, on the basis of criteria established in the regulations, that negotiation of different rights in such technical data would be in the best interest of the United States.

(7) Modular system interfaces developed exclusively at private expense or with mixed funding.—

(A) Notwithstanding paragraphs (2) and (5), the United States shall have government purpose rights in technical data pertaining to a modular system interface developed exclusively at private expense or in part with Federal funds and in part at private expense and used in a modular open system approach pursuant to section 4401 of this title, except in any case in which the Secretary of Defense determines that negotiation of different rights in such technical data would be in the best interest of the United States.

(B) Such modular system interface shall be identified in the contract solicitation and the contract.

(C) For technical data pertaining to a modular system interface developed exclusively at private expense for which the United States asserts government purpose rights, the Secretary of Defense shall negotiate with the contractor the appropriate and reasonable compensation for such technical data.

(8) Limitations on requirements related to contractor or subcontractor rights in technical data.—A contractor or subcontractor (or a prospective contractor or subcontractor) may not be required, as a condition of being responsive to a solicitation or as a condition for the award of a contract—

(A) to sell or otherwise relinquish to the United States any rights in technical data except—

(i) rights in technical data described in paragraph (1) for which a use or release restriction has been erroneously asserted by a contractor or subcontractor;

(ii) rights in technical data described in paragraph (3); or

(iii) under the conditions described in paragraph (4); or

(B) to refrain from offering to use, or from using, an item or process to which the contractor is entitled to restrict rights in data under paragraph (2).

(9) Actions authorized if necessary to develop alternative sources of supply and manufacture.—The Secretary of Defense may—

(A) negotiate and enter into a contract with a contractor or subcontractor for the acquisition of rights in technical data not otherwise provided under paragraph (3) or (4), if necessary to develop alternative sources of supply and manufacture;

(B) agree to restrict rights in technical data otherwise accorded to the United States under this subchapter if the United States receives a royalty-free license to use, release, or disclose the data for purposes of the United States (including purposes of competitive procurement); or

(C) permit a contractor or subcontractor to license directly to a third party the use of technical data which the contractor is otherwise allowed to restrict, if necessary to develop alternative sources of supply and manufacture.

(c) Secretary of Defense to Define Terms.—The Secretary of Defense shall define the terms "developed", "exclusively with Federal funds", and "exclusively at private expense" in regulations prescribed under subsection (a). In defining such terms, the Secretary—

(1) shall specify the manner in which indirect costs shall be treated; and

(2) shall specify that amounts spent for independent research and development and bid and proposal costs shall not be considered to be Federal funds for the purposes of the definitions under this subsection.

(Added and amended Pub. L. 116–283, div. A, title XVIII, §1833(a)(1), (b), Jan. 1, 2021, 134 Stat. 4226.)

Editorial Notes

Codification

The text of subsec. (a) of section 2320 of this title, which was transferred to this section and amended by Pub. L. 116–283, §1833(b), was based on Pub. L. 98–525, title XII, §1216(a), Oct. 19, 1984, 98 Stat. 2595; Pub. L. 98–577, title III, §301(b), Oct. 30, 1984, 98 Stat. 3076; Pub. L. 99–145, title IX, §961(d)(1), Nov. 8, 1985, 99 Stat. 703; Pub. L. 99–500, §101(c) [title X, §953(a)], Oct. 18, 1986, 100 Stat. 1783–82, 1783-169, and Pub. L. 99–591, §101(c) [title X, §953(a)], Oct. 30, 1986, 100 Stat. 3341–82, 3341-169; Pub. L. 99–661, div. A, title IX, formerly title IV, §953(a), Nov. 14, 1986, 100 Stat. 3949, renumbered title IX, Pub. L. 100–26, §3(5), Apr. 21, 1987, 101 Stat. 273; Pub. L. 100–26, §7(a)(4), Apr. 21, 1987, 101 Stat. 275; Pub. L. 100–180, div. A, title VIII, §808(a), Dec. 4, 1987, 101 Stat. 1128; Pub. L. 101–189, div. A, title VIII, §853(b)(2), Nov. 29, 1989, 103 Stat. 1518; Pub. L. 111–383, div. A, title VIII, §824(b), Jan. 7, 2011, 124 Stat. 4269; Pub. L. 112–81, div. A, title VIII, §815(a)(1), Dec. 31, 2011, 125 Stat. 1491; Pub. L. 114–328, div. A, title VIII, §809(a), (b), (e), Dec. 23, 2016, 130 Stat. 2266, 2267; Pub. L. 116–283, div. A, title VIII, §804(b)(2)(A)(i), Jan. 1, 2021, 134 Stat. 3738. Pub. L. 99–500, Pub. L. 99–591, and Pub. L. 99–661 generally amended section 2320(a) substantially identically; as executed, text reflected amendment by Pub. L. 99–661.

Amendments

2021—Pub. L. 116–283, §1833(b)(1), (2)(A), transferred subsec. (a) of section 2320 of this title to this section, effectively redesignated par. (1) as subsec. (a), and redesignated pars. (2) and (3) as subsecs. (b) and (c), respectively.

Subsec. (a). Pub. L. 116–283, §1833(b)(2)(A), (B)(i), after redesignation of par. (1) of section 2320(a) of this title as subsec. (a) of this section, inserted subsec. heading and, in existing provisions, designated first two sentences as par. (1) and the remainder as par. (2) and inserted par. headings. Amendment designating "the third sentence as paragraph (2)" was executed by including the fourth sentence within par. (2) as well, to reflect the probable intent of Congress.

Subsec. (a)(2). Pub. L. 116–283, §1833(b)(2)(B), substituted "Regulations prescribed under paragraph (1) may not" for "Such regulations may not", inserted dash after "impair", reorganized remainder of text into designated subpars. (A) and (B), and, at end of subpar. (A), substituted "by law; or" for "by law. Such regulations also may not impair".

Subsec. (b). Pub. L. 116–283, §1833(b)(3)(A), (B), after redesignation of par. (2) of section 2320(a) of this title as subsec. (b) of this section, inserted heading, substituted "Regulations prescribed under subsection (a)" for "Such regulations" in introductory provisions, and redesignated subpars. (A) to (I) as pars. (1) to (9), respectively.

Subsec. (b)(1). Pub. L. 116–283, §1833(b)(3)(C), redesignated cls. (i) and (ii) as subpars. (A) and (B), respectively.

Subsec. (b)(2). Pub. L. 116–283, §1833(b)(3)(D), substituted "paragraphs (3), (4), and (7)" for "subparagraphs (C), (D), and (G)".

Subsec. (b)(3). Pub. L. 116–283, §1833(b)(3)(E), substituted "paragraph (2)" for "subparagraph (b)" in heading and "Paragraph (2) does not" for "Subparagraph (B) does not" in introductory provisions and redesignated cls. (i) to (iv) as subpars. (A) to (D), respectively.

Subsec. (b)(4). Pub. L. 116–283, §1833(b)(3)(F), substituted "paragraph (2)" for "subparagraph (b)" in heading and "Notwithstanding paragraph (2)" for "Notwithstanding subparagraph (B)" in introductory provisions and redesignated cl. (i), its subcls. (I) to (III), cl. (ii), and cl. (iii) as subpar. (A), cls. (i) to (iii), subpar. (B), and subpar. (C), respectively.

Subsec. (b)(5). Pub. L. 116–283, §1833(b)(3)(G), in existing provisions, designated first sentence as subpar. (A), inserted heading, and substituted "Except as provided in paragraphs (6) and (7)," for "Except as provided in subparagraphs (F) and (G)," and designated second sentence as subpar. (B), inserted heading, and realigned margin.

Subsec. (b)(6). Pub. L. 116–283, §1833(b)(3)(H), substituted "paragraph (5)" for "subparagraph (E)".

Subsec. (b)(7). Pub. L. 116–283, §1833(b)(3)(I), in existing provisions, designated first sentence as subpar. (A) and substituted "Notwithstanding paragraphs (2) and (5)" for "Notwithstanding subparagraphs (B) and (E)" and "section 4401" for "section 2446a" and designated second and third sentences as subpars. (B) and (C), respectively.

Subsec. (b)(8). Pub. L. 116–283, §1833(b)(3)(J)(i), (ii), inserted heading and redesignated cls. (i) and (ii) as subpars. (A) and (B), respectively.

Subsec. (b)(8)(A). Pub. L. 116–283, §1833(b)(3)(J)(iii)–(vi), redesignated subcl. (I) as cl. (i) and substituted "paragraph (1)" for "subparagraph (A)", redesignated subcl. (II) as cl. (ii) and substituted "paragraph (3)" for "subparagraph (C)", and redesignated subcl. (III) as cl. (iii) and substituted "paragraph (4)" for "subparagraph (D)".

Subsec. (b)(8)(B). Pub. L. 116–283, §1833(b)(3)(J)(vii), substituted "paragraph (2)" for "subparagraph (B)".

Subsec. (b)(9). Pub. L. 116–283, §1833(b)(3)(K), inserted heading, redesignated cl. (i) as subpar. (A) and substituted "paragraph (3) or (4)" for "subparagraph (C) or (D)", redesignated cl. (ii) as subpar. (B) and substituted "this subchapter" for "this section", and redesignated cl. (iii) as subpar. (C).

Subsec. (c). Pub. L. 116–283, §1833(b)(4), inserted heading, substituted "subsection (a)" for "paragraph (1)" and "this subsection" for "this paragraph", inserted dash after "terms, the Secretary", and reorganized remainder of text into designated pars. (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.

Reverse Engineering or Re-Engineering for Production of Items

Pub. L. 118–159, div. A, title VIII, §882, Dec. 23, 2024, 138 Stat. 2017, provided that:

"(a) Reverse Engineering or Re-engineering Process.—Not later than one year after the date of the enactment of this Act [Dec. 23, 2024], the Under Secretary of Defense for Acquisition and Sustainment, in coordination with each Secretary of a military department and the Director of the Defense Logistics Agency, shall establish a process to—

"(1) identify items for which—

"(A) technical data is not available; or

"(B) rights in such technical data does not allow for manufacturing of the item; and

"(2) create streamlined procedures for production of a item identified under paragraph (1) through reverse engineering or re-engineering—

"(A) if production of the item may be required for point of use manufacturing or for a contested logistics environment (as defined in section 2926 of title 10, United States Code);

"(B) if the manufacturer of the item will not meet the schedule for delivery required by the contracting officer to maintain weapon system readiness or responsiveness in the event of mobilization; or

"(C) with respect to a item for which a head of the contracting activity can only acquire by entering into a sole source contract, if such head submits to the service acquisition executive (as defined in section 101 of title 10, United States Code) a written determination that such reverse engineering or re-engineering is beneficial to sustain training or operations of the Department of Defense with respect to such item.

"(b) Annual Report.—

"(1) In general.—Not later than one year after the date of the enactment of this Act, and annually thereafter until December 31, 2030, the Under Secretary of Defense for Acquisition and Sustainment, in coordination with each Secretary of a military department and the Director of the Defense Logistics Agency, shall submit to the congressional defense committees [Committees on Armed Services and Appropriations of the Senate and the House of Representatives] a report on the use of reverse engineering or re-engineering carried out pursuant to the process required under subsection (a).

"(2) Contents.—Each report required by paragraph (1) shall include the following:

"(A) A list of items produced through reverse engineering or re-engineering, disaggregated by element of the Department of Defense described in section 111(b) of title 10, United States Code that used the process established under subsection (a).

"(B) Representative case studies of items listed under subparagraph (A), including a description of the use case of each item, the efforts used to acquire the technical data or technical data rights needed to manufacture the item, and the estimated cost or time savings obtained, the estimated cost or time savings obtained over an estimated time horizon of ten years of acquisition requirements, including the identification of recurring and nonrecurring costs.

"(C) Recommendations and lessons learned that may inform contracting guidance and procedures, especially regarding the creation of technical data packages and technical data rights through reverse engineering or re-engineering."

§3772. Rights in technical data: provisions required in contracts

(a) Contract Provisions Relating to Technical Data.—Regulations prescribed under section 3771 of this title shall require that, whenever practicable, a contract for supplies or services entered into by an agency named in section 3063 of this title contain appropriate provisions relating to technical data, including provisions—

(1) defining the respective rights of the United States and the contractor or subcontractor (at any tier) regarding any technical data to be delivered under the contract and providing that, in the case of a contract for a commercial product, the product shall be presumed to be developed at private expense unless shown otherwise in accordance with section 3784;

(2) specifying the technical data, if any, to be delivered under the contract and delivery schedules for such delivery;

(3) establishing or referencing procedures for determining the acceptability of technical data to be delivered under the contract;

(4) establishing separate contract line items for the technical data, if any, to be delivered under the contract;

(5) to the maximum practicable extent, identifying, in advance of delivery, technical data which is to be delivered with restrictions on the right of the United States to use such data;

(6) requiring the contractor—

(A) to revise any technical data delivered under the contract to reflect engineering design changes made during the performance of the contract and affecting the form, fit, and function of the items specified in the contract; and

(B) to deliver such revised technical data to an agency within a time specified in the contract;

(7) establishing remedies to be available to the United States when technical data required to be delivered or made available under the contract is found—

(A) to be incomplete or inadequate; or

(B) to not satisfy the requirements of the contract concerning technical data;

(8) authorizing the head of the agency to withhold payments under the contract (or exercise such other remedies as the head of the agency considers appropriate) during any period if the contractor does not meet the requirements of the contract pertaining to the delivery of technical data;

(9) providing that, in addition to technical data that is already subject to a contract delivery requirement, the United States may require, until the date occurring six years after acceptance of the last item (other than technical data) under a contract or the date of contract termination, whichever is later, the delivery of technical data that has been generated in the performance of the contract, and compensate the contractor only for reasonable costs incurred for having converted and delivered the data in the required form, upon a determination that—

(A) the technical data is needed for the purpose of reprocurement, sustainment, modification, or upgrade (including through competitive means) of a major system or subsystem thereof, a weapon system or subsystem thereof, or any noncommercial product or process; and

(B) the technical data—

(i) pertains to an item or process developed in whole or in part with Federal funds; or

(ii) is described in paragraphs (4)(A)(ii), (6), and (7) of section 3771(b) of this title; and

(10) providing that the United States is not foreclosed from requiring the delivery of the technical data by a failure to challenge, in accordance with the requirements of section 3782 of this title, the contractor's assertion of a use or release restriction on the technical data.

(b) Nothing in this subchapter or in section 3208 of this title prohibits the Secretary of Defense from—

(1) prescribing standards for determining whether a contract entered into by the Department of Defense shall provide for a time to be specified in the contract after which the United States shall have the right to use (or have used) for any purpose of the United States all technical data required to be delivered to the United States under the contract or providing for such a period of time (not to exceed 7 years) as a negotiation objective;

(2) notwithstanding any limitation upon the license rights conveyed under section 3771 of this title, allowing a covered Government support contractor access to and use of any technical data delivered under a contract for the sole purpose of furnishing independent and impartial advice or technical assistance directly to the Government in support of the Government's management and oversight of the program or effort to which such technical data relates; or

(3) prescribing reasonable and flexible guidelines, including negotiation objectives, for the conduct of negotiations regarding the respective rights in technical data of the United States and the contractor.

(Added and amended Pub. L. 116–283, div. A, title XVIII, §1833(a)(1), (c), Jan. 1, 2021, 134 Stat. 4226, 4228.)

Editorial Notes

Codification

The text of subsec. (b) of section 2320 of this title, which was transferred to this section, redesignated as subsec. (a), and amended by Pub. L. 116–283, §1833(c)(1), (2), was based on Pub. L. 98–525, title XII, §1216(a), Oct. 19, 1984, 98 Stat. 2596; Pub. L. 103–355, title VIII, §8106(a), Oct. 13, 1994, 108 Stat. 3393; Pub. L. 108–136, div. A, title VIII, §844, Nov. 24, 2003, 117 Stat. 1553; Pub. L. 112–81, div. A, title VIII, 815(a), Dec. 31, 2011, 125 Stat. 1492; Pub. L. 114–328, div. A, title VIII, §809(c), Dec. 23, 2016, 130 Stat. 2267; Pub. L. 115–232, div. A, title VIII, §836(c)(7), Aug. 13, 2018, 132 Stat. 1866.

The text of subsec. (c) of section 2320 of this title, which was transferred to this section, redesignated as subsec. (b), and amended by Pub. L. 116–283, §1833(c)(1), (3), was based on Pub. L. 98–525, title XII, §1216(a), Oct. 19, 1984, 98 Stat. 2596; Pub. L. 100–180, div. A, title VIII, §808(b), Dec. 4, 1987, 101 Stat. 1130; Pub. L. 111–84, div. A, title VIII, §821(a), Oct. 28, 2009, 123 Stat. 2411; Pub. L. 111–383, div. A, title VIII, §801(a)(1), Jan. 7, 2011, 124 Stat. 4253; Pub. L. 112–81, div. A, title VIII, §802(b)(1), Dec. 31, 2011, 125 Stat. 1485.

Amendments

2021—Subsec. (a). Pub. L. 116–283, §1833(c)(1), (2)(A)–(C), redesignated subsec. (b) of section 2320 of this title as subsec. (a) of this section, inserted heading, and substituted "section 3771 of this title" for "subsection (a)" and "section 3063" for "section 2303" in introductory provisions.

Subsec. (a)(1). Pub. L. 116–283, §1833(c)(2)(D), substituted "section 3784" for "section 2321(f)".

Subsec. (a)(6). Pub. L. 116–283, §1833(c)(2)(E), inserted dash after "the contractor" and reorganized remainder of text into designated subpars. (A) and (B).

Subsec. (a)(7). Pub. L. 116–283, §1833(c)(2)(F), inserted dash after "is found" and reorganized remainder of text into designated subpars. (A) and (B).

Subsec. (a)(9)(B)(ii). Pub. L. 116–283, §1833(c)(2)(G), substituted "paragraphs (4)(A)(ii), (6), and (7) of section 3771(b) of this title" for "subparagraphs (D)(i)(II), (F), and (G) of subsection (a)(2)".

Subsec. (a)(10). Pub. L. 116–283, §1833(c)(2)(H), substituted "section 3782" for "section 2321(d)".

Subsec. (b). Pub. L. 116–283, §1833(c)(3)(A), which directed substitution of "in this subchapter or in section 3208" for "in this section or in section 2305(a)", was executed by making the substitution for "in this section or in section 2305(d)" in introductory provisions to reflect the probable intent of Congress.

Pub. L. 116–283, §1833(c)(1) redesignated subsec. (c) of section 2320 of this title as subsec. (b) of this section.

Subsec. (b)(2). Pub. L. 116–283, §1833(c)(3)(B), substituted "section 3771 of this title" for "subsection (a)".

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.

§3773. Domestic business concerns: programs for replenishment parts

The Secretary of Defense shall by regulation establish programs which provide domestic business concerns an opportunity to purchase or borrow replenishment parts from the United States for the purpose of design replication or modification, to be used by such concerns in the submission of subsequent offers to sell the same or like parts to the United States. Nothing in this section limits the authority of the head of an agency to impose restrictions on such a program related to national security considerations, inventory needs of the United States, the improbability of future purchases of the same or like parts, or any additional restriction otherwise required by law.

(Added and amended Pub. L. 116–283, div. A, title XVIII, §1833(a)(1), (d), Jan. 1, 2021, 134 Stat. 4226, 4229.)

Editorial Notes

Codification

The text of subsec. (d) of section 2320 of this title, which was transferred to this section and amended by Pub. L. 116–283, §1833(d), was based on Pub. L. 98–525, title XII, §1216(a), Oct. 19, 1984, 98 Stat. 2597.

Amendments

2021—Pub. L. 116–283, §1833(d), transferred subsec. (d) of section 2320 of this title to this section, struck out subsec. (d) designation at beginning, and substituted "this section" for "this subsection".

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.

§3774. Major weapon systems and subsystems: long-term technical data needs

(a) Assessments and Acquisitions Strategies.—

(1) The Secretary of Defense shall require program managers for major weapon systems and subsystems of major weapon systems to—

(A) assess the long-term technical data needs of such systems and subsystems; and

(B) establish corresponding acquisition strategies that provide for technical data rights needed to sustain such systems and subsystems over their life cycle.

(2) Such strategies may include—

(A) the development of maintenance capabilities within the Department of Defense; or

(B) competition for contracts for sustainment of such systems or subsystems.

(b) Requirements Relating to Assessments and Acquisition Strategies.—Assessments and corresponding acquisition strategies developed under subsection (a) with respect to a weapon system or subsystem shall—

(1) be developed before issuance of a contract solicitation for the weapon system or subsystem;

(2) address the merits of including a priced contract option for the future delivery of technical data that were not acquired upon initial contract award;

(3) address the potential for changes in the sustainment plan over the life cycle of the weapon system or subsystem; and

(4) apply to weapon systems and subsystems that are to be supported by performance-based logistics arrangements as well as to weapons systems and subsystems that are to be supported by other sustainment approaches.

(c) Preference for Specially Negotiated Licenses.—

(1) The Secretary of Defense shall, to the maximum extent practicable, negotiate and enter into a contract with a contractor for a specially negotiated license for technical data to support the product support strategy of a major weapon system or subsystem of a major weapon system.

(2) In performing the assessment and developing the corresponding strategy required under subsection (a) for such a system or subsystem, a program manager shall consider the use of specially negotiated licenses to acquire customized technical data appropriate for the particular elements of the product support strategy.

(Added and amended Pub. L. 116–283, div. A, title XVIII, §1833(a)(1), (e), Jan. 1, 2021, 134 Stat. 4226, 4229.)

Editorial Notes

Codification

The text of subsec. (e) of section 2320 of this title, which was transferred to this section, redesignated as subsecs. (a) and (b), and amended by Pub. L. 116–283, §1833(e)(1)–(4), was based on Pub. L. 109–364, div. A, title VIII, §802(a), Oct. 17, 2006, 120 Stat. 2312.

The text of subsec. (f) of section 2320 of this title, which was transferred to this section, redesignated as subsec. (c), and amended by Pub. L. 116–283, §1833(e)(1), (5), was based on Pub. L. 115–91, div. A, title VIII, §835(c)(2), Dec. 12, 2017, 131 Stat. 1471.

Amendments

2021—Subsec. (a). Pub. L. 116–283, §1833(e)(1), (3)(A), (B), redesignated subsec. (e) of section 2320 of this title as subsec. (a) of this section, inserted heading, and designated first and second sentences of existing provisions as pars. (1) and (2), respectively. Third sentence of subsec. (a) designated subsec. (b).

Subsec. (a)(1). Pub. L. 116–283, §1833(e)(3)(C), inserted dash after "major weapon systems to" and reorganized remainder of text into designated subpars. (A) and (B).

Subsec. (a)(2). Pub. L. 116–283, §1833(e)(3)(D), inserted dash after "may include" and reorganized remainder of text into designated subpars. (A) and (B).

Subsec. (b). Pub. L. 116–283, §1833(e)(2), (4), designated third sentence of subsec. (a) as subsec. (b), inserted heading, and substituted "developed under subsection (a) with respect to" for "developed under this section with respect to" in introductory provisions.

Subsec. (c). Pub. L. 116–283, §1833(e)(1), (5), redesignated subsec. (f) of section 2320 of this title as subsec. (c) of this section, designated first and second sentences of existing provisions as pars. (1) and (2), respectively, and, in par. (2), substituted "subsection (a)" for "subsection (e)".

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.

Regulations

Pub. L. 109–364, div. A, title VIII, §802(c), Oct. 17, 2006, 120 Stat. 2313, provided that: "Not later than 180 days after the date of the enactment of this Act [Oct. 17, 2006], the Secretary of Defense shall revise regulations under section 2320 of title 10, United States Code [see 10 U.S.C. 3771 et seq.], to implement subsection (e) of such section [see 10 U.S.C. 3774(a), (b)] (as added by this section), including incorporating policy changes developed under such subsection into Department of Defense Directive 5000.1 and Department of Defense Instruction 5000.2."

Guidance Relating to Rights in Technical Data

Pub. L. 111–383, div. A, title VIII, §824(a), Jan. 7, 2011, 124 Stat. 4269, provided that: "Not later than 180 days after the date of the enactment of this Act [Jan. 7, 2011], the Secretary of Defense shall review guidance issued by the military departments on the implementation of section 2320(e) of title 10, United States Code [see 10 U.S.C. 3774(a), (b)], to ensure that such guidance is consistent with the guidance issued by the Under Secretary of Defense for Acquisition, Technology, and Logistics and the requirements of this section [amending former sections 2320 and 2321 of this title]. Such guidance shall be designed to ensure that the United States—

"(1) preserves the option of competition for contracts for the production and sustainment of systems or subsystems that are developed exclusively with Federal funds as defined in accordance with the amendments made by this section; and

"(2) is not required to pay more than once for the same technical data."

§3775. Definitions

(a) Covered Government Support Contractor Defined.—In this subchapter, the term "covered Government support contractor" means a contractor under a contract the primary purpose of which is to furnish independent and impartial advice or technical assistance directly to the Government in support of the Government's management and oversight of a program or effort (rather than to directly furnish an end item or service to accomplish a program or effort), which contractor—

(1) is not affiliated with the prime contractor or a first-tier subcontractor on the program or effort, or with any direct competitor of such prime contractor or any such first-tier subcontractor in furnishing end items or services of the type developed or produced on the program or effort; and

(2) executes a contract with the Government agreeing to and acknowledging—

(A) that proprietary or nonpublic technical data furnished will be accessed and used only for the purposes stated in that contract;

(B) that the covered Government support contractor will enter into a non-disclosure agreement with the contractor to whom the rights to the technical data belong;

(C) that the covered Government support contractor will take all reasonable steps to protect the proprietary and nonpublic nature of the technical data furnished to the covered Government support contractor during the program or effort for the period of time in which the Government is restricted from disclosing the technical data outside of the Government;

(D) that a breach of that contract by the covered Government support contractor with regard to a third party's ownership or rights in such technical data may subject the covered Government support contractor—

(i) to criminal, civil, administrative, and contractual actions in law and equity for penalties, damages, and other appropriate remedies by the United States; and

(ii) to civil actions for damages and other appropriate remedies by the contractor or subcontractor whose technical data is affected by the breach; and

(E) that such technical data provided to the covered Government support contractor under the authority of this section shall not be used by the covered Government support contractor to compete against the third party for Government or non-Government contracts.

(b) Additional Definitions.—In this subchapter, the terms "major system component", "modular system interface", and "modular open system approach" have the meanings provided in section 4401 of this title.

(Added and amended Pub. L. 116–283, div. A, title XVIII, §1833(a)(1), (f), Jan. 1, 2021, 134 Stat. 4226, 4230.)

Editorial Notes

Codification

The text of subsec. (g) of section 2320 of this title, which was transferred to this section, redesignated as subsec. (a), and amended by Pub. L. 116–283, §1833(f)(1), (2)(A), was based on Pub. L. 111–84, div. A, title VIII, §821(b), Oct. 28, 2009, 123 Stat. 2411; Pub. L. 114–328, div. A, title VIII, §809(d)(1), Dec. 23, 2016, 130 Stat. 2267; Pub. L. 115–91, div. A, title VIII, §835(c)(1), Dec. 12, 2017, 131 Stat. 1471.

The text of subsec. (h) of section 2320 of this title, which was transferred to this section, redesignated as subsec. (b), and amended by Pub. L. 116–283, §1833(f), was based on Pub. L. 114–328, div. A, title VIII, §809(d)(2), Dec. 23, 2016, 130 Stat. 2267; Pub. L. 115–91, div. A, title VIII, §835(c)(1), Dec. 12, 2017, 131 Stat. 1471; Pub. L. 116–283, div. A, title VIII, §804(b)(2)(A)(ii), Jan. 1, 2021, 134 Stat. 3739.

Amendments

2021—Subsec. (a). Pub. L. 116–283, §1833(f)(1), (2)(A), redesignated subsec. (g) of section 2320 of this title as subsec. (a) of this section and substituted "In this subchapter," for "In this section," in introductory provisions.

Subsec. (b). Pub. L. 116–283, §1833(f), redesignated subsec. (h) of section 2320 of this title as subsec. (b) of this section and substituted "In this subchapter," for "In this section," and "section 4401" for "section 2446a".

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.

SUBCHAPTER II—VALIDATION OF PROPRIETARY DATA RESTRICTIONS

        

§3781. Technical data: contractor justification for restrictions; review of restrictions

(a) Contracts Covered by Subchapter.—This subchapter applies to any contract for supplies or services entered into by the Department of Defense that includes provisions for the delivery of technical data.

(b) Contractor Justification for Restrictions.—A contract subject to this subchapter shall provide that a contractor under the contract and any subcontractor under the contract at any tier shall be prepared to furnish to the contracting officer a written justification for any use or release restriction (as defined in section 3786 of this title) asserted by the contractor or subcontractor.

(c) Review of Restrictions.—

(1) The Secretary of Defense shall ensure that there is a thorough review of the appropriateness of any use or release restriction asserted with respect to technical data by a contractor or subcontractor at any tier under a contract subject to this subchapter.

(2) The review of an asserted use or release restriction under paragraph (1) shall be conducted before the end of the three-year period beginning on the later of—

(A) the date on which final payment is made on the contract under which the technical data is required to be delivered; or

(B) the date on which the technical data is delivered under the contract.

(Added and amended Pub. L. 116–283, div. A, title XVIII, §1833(g), (h), Jan. 1, 2021, 134 Stat. 4231.)

Editorial Notes

Codification

The text of subsecs. (a), (b), and (c) of section 2321 of this title, which were transferred to this section and amended by Pub. L. 116–283, §1833(h), was based on Pub. L. 100–26, §7(a)(5)(A)(ii), Apr. 21, 1987, 101 Stat. 276.

Prior Provisions

A prior section 3781, act Aug. 10, 1956, ch. 1041, 70A Stat. 218; Pub. L. 86–616, §2(a), July 12, 1960, 74 Stat. 386, authorized Secretary of the Army to convene at any time a board of officers to review record of any commissioned officer on active list of Regular Army to determine whether he should be required, because of substandard performance of duty, to show cause for his retention on active list, prior to repeal by Pub. L. 96–513, title II, §213, title VII, §701, Dec. 12, 1980, 94 Stat. 2885, 2955, effective Sept. 15, 1981. See section 1181(a) of this title.

Amendments

2021—Subsec. (a). Pub. L. 116–283, §1833(h)(1), (2), transferred subsec. (a) of section 2321 of this title to this section and substituted "by Subchapter" for "by Section" in heading and "This subchapter" for "This section" in text.

Subsec. (b). Pub. L. 116–283, §1833(h)(1), (3), transferred subsec. (b) of section 2321 of this title to this section and substituted "this subchapter" for "this section" and "(as defined in section 3786 of this title) asserted" for "(as defined in subsection (i)) asserted".

Subsec. (c). Pub. L. 116–283, §1833(h)(1), (4)(A), (C), transferred subsec. (c) of section 2321 of this title to this section and realigned margins of pars. (1) and (2).

Subsec. (c)(1). Pub. L. 116–283, §1833(h)(4)(B), substituted "this subchapter" for "this section".

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.

§3782. Technical data: challenges to contractor restrictions

(a) Challenges by Secretary of Defense.—The Secretary of Defense may challenge a use or release restriction asserted with respect to technical data by a contractor or subcontractor at any tier under a contract subject to this subchapter if the Secretary finds that—

(1) reasonable grounds exist to question the current validity of the asserted restriction; and

(2) the continued adherence by the United States to the asserted restriction would make it impracticable to procure the item to which the technical data pertain competitively at a later time.

(b) Time Limit for Challenges; Exceptions.—

(1) A challenge to a use or release restriction asserted by the contractor in accordance with applicable regulations may not be made under subsection (a) after the end of the six-year period described in paragraph (2) unless the technical data involved—

(A) are publicly available;

(B) have been furnished to the United States without restriction;

(C) have been otherwise made available without restriction; or

(D) are the subject of a fraudulently asserted use or release restriction.

(2) The six-year period referred to in paragraph (1) is the six-year period beginning on the later of—

(A) the date on which final payment is made on the contract under which the technical data are required to be delivered; or

(B) the date on which the technical data are delivered under the contract.

(c) Written Notice to Contractor or Subcontractor.—If the Secretary challenges an asserted use or release restriction under subsection (a), the Secretary shall provide written notice of the challenge to the contractor or subcontractor asserting the restriction. Any such notice shall—

(1) state the specific grounds for challenging the asserted restriction;

(2) require a response within 60 days justifying the current validity of the asserted restriction; and

(3) state that evidence of a justification described in subsection (d) may be submitted.

(d) Justification.—It is a justification of an asserted use or release restriction challenged under subsection (a) that, within the three-year period preceding the challenge to the restriction, the Department of Defense validated a restriction identical to the asserted restriction if—

(1) such validation occurred after a challenge to the validated restriction under this section; and

(2) the validated restriction was asserted by the same contractor or subcontractor (or a licensee of such contractor or subcontractor).

(Added and amended Pub. L. 116–283, div. A, title XVIII, §1833(g), (i), Jan. 1, 2021, 134 Stat. 4231.)

Editorial Notes

Codification

The text of subsec. (d) of section 2321 of this title, which was transferred to this section and amended by Pub. L. 116–283, §1833(i), was based on Pub. L. 100–26, §7(a)(5)(A)(ii), Apr. 21, 1987, 101 Stat. 276; Pub. L. 100–180, div. A, title XII, §1231(6)(A), Dec. 4, 1987, 101 Stat. 1160; Pub. L. 103–35, title II, §201(g)(4), May 31, 1993, 107 Stat. 100; Pub. L. 111–383, div. A, title VIII, §824(c), Jan. 7, 2011, 124 Stat. 4269; Pub. L. 112–81, div. A, title VIII, §815(b), Dec. 31, 2011, 125 Stat. 1492.

Prior Provisions

A prior section 3782, act Aug. 10, 1956, ch. 1041, 70A Stat. 218; Pub. L. 86–616, §2(a), July 12, 1960, 74 Stat. 387, provided for boards of inquiry, composed of three or more officers, to be convened at such places as Secretary of the Army prescribes, to receive evidence and make findings and recommendations whether an officer, required to show cause under section 3781 of this title, should be retained on active list of Regular Army, prior to repeal by Pub. L. 96–513, title II, §213, title VII, §701, Dec. 12, 1980, 94 Stat. 2885, 2955, effective Sept. 15, 1981. See section 1182 of this title.

Amendments

2021—Pub. L. 116–283, §1833(i)(1)(A), transferred subsec. (d) of section 2321 of this title to this section and struck out subsec. (d) designation and heading "Challenges to Restrictions" at beginning.

Subsec. (a). Pub. L. 116–283, §1833(i)(1)(B), (2), redesignated par. (1) of section 2321(d) of this title as subsec. (a) of this section, inserted heading, substituted "this subchapter" for "this section" in introductory provisions, and redesignated subpars. (A) and (B) as pars. (1) and (2), respectively.

Subsec. (b). Pub. L. 116–283, §1833(i)(1)(B), (3)(A), (B), redesignated par. (2) of section 2321(d) of this title as subsec. (b) of this section, inserted heading, and redesignated subpars. (A) and (B) as pars. (1) and (2), respectively, and realigned margins.

Subsec. (b)(1). Pub. L. 116–283, §1833(i)(3)(C), substituted "subsection (a)" for "paragraph (1)" and "paragraph (2)" for "subparagraph (B)" in introductory provisions and redesignated cls. (i) to (iv) as subpars. (A) to (D), respectively.

Subsec. (b)(2). Pub. L. 116–283, §1833(i)(3)(D), substituted "paragraph (1)" for "subparagraph (A)" in introductory provisions and redesignated cls. (i) and (ii) as subpars. (A) and (B), respectively.

Subsec. (c). Pub. L. 116–283, §1833(i)(1)(B), (4)(A)–(C), redesignated par. (3) of section 2321(d) of this title as subsec. (c) of this section, inserted heading, substituted "subsection (a)" for "paragraph (1)" in introductory provisions, and redesignated subpars. (A) to (C) as pars. (1) to (3), respectively.

Subsec. (c)(3). Pub. L. 116–283, §1833(i)(4)(D), substituted "subsection (d)" for "paragraph (4)".

Subsec. (d). Pub. L. 116–283, §1833(i)(1)(B), (5)(A)–(C), redesignated par. (4) of section 2321(d) of this title as subsec. (d) of this section, inserted heading, substituted "subsection (a)" for "paragraph (1)" in introductory provisions, and redesignated subparagraphs (A) and (B) as pars. (1) and (2), respectively.

Subsec. (d)(1). Pub. L. 116–283, §1833(i)(5)(D), substituted "this section" for "this subsection".

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.

§3783. Technical data: time for contractors to submit justifications

(a) Additional Time to Submit Justifications.—If a contractor or subcontractor asserting a use or release restriction submits to the contracting officer a written request, showing the need for additional time to comply with the requirement to justify the current validity of the asserted restriction, additional time to adequately permit the submission of such justification shall be provided by the contracting officer as appropriate.

(b) Multiple Challenges; Schedule of Responses.—If a party asserting a restriction receives notices of challenges to restrictions on technical data from more than one contracting officer, and notifies each contracting officer of the existence of more than one challenge, the contracting officer initiating the first in time challenge, after consultation with the party asserting the restriction and the other contracting officers, shall formulate a schedule of responses to each of the challenges that will afford the party asserting the restriction with an equitable opportunity to respond to each such challenge.

(Added and amended Pub. L. 116–283, div. A, title XVIII, §1833(g), (j), Jan. 1, 2021, 134 Stat. 4231, 4232.)

Editorial Notes

Codification

The text of subsec. (e) of section 2321 of this title, which was transferred to this section and amended by Pub. L. 116–283, §1833(j), was based on Pub. L. 98–525, title XII, §1216(a), Oct. 19, 1984, 98 Stat. 2597; Pub. L. 100–26, §7(a)(5)(A)(i), (B), Apr. 21, 1987, 101 Stat. 276, 277.

Prior Provisions

A prior section 3783, act Aug. 10, 1956, ch. 1041, 70A Stat. 218; Pub. L. 86–616, §2(a), July 12, 1960, 74 Stat. 387, provided for boards of review, composed of three or more officers, to be convened by Secretary of the Army, at such places as he prescribes, to review records of cases of officers recommended by boards of inquiry for removal from active list of Regular Army, prior to repeal by Pub. L. 96–513, title II, §213, title VII, §701, Dec. 12, 1980, 94 Stat. 2885, 2955, effective Sept. 15, 1981.

Amendments

2021—Pub. L. 116–283, §1833(j), transferred subsec. (e) of section 2321 of this title to this section, struck out subsec. (e) designation and heading "Time for Contractors to Submit Justifications" at beginning, and designated first and second sentences of existing provisions as subsecs. (a) and (b), respectively, and inserted headings.

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.

§3784. Technical data under contracts for commercial items: presumption of development exclusively at private expense

In the case of a challenge to a use or release restriction that is asserted with respect to technical data of a contractor or subcontractor under a contract for commercial products, the contracting officer shall presume that the contractor or subcontractor has justified the restriction on the basis that the commercial product was developed exclusively at private expense, whether or not the contractor or subcontractor submits a justification in response to the notice provided pursuant to section 3782(c) of this title. In such a case, the challenge to the use or release restriction may be sustained only if information provided by the Department of Defense demonstrates that the commercial product was not developed exclusively at private expense.

(Added and amended Pub. L. 116–283, div. A, title XVIII, §1833(g), (k), Jan. 1, 2021, 134 Stat. 4231, 4233.)

Editorial Notes

Codification

The text of subsec. (f) of section 2321 of this title, which was transferred to this section and amended by Pub. L. 116–283, §1833(k), was based on Pub. L. 103–355, title VIII, §8106(b)(2), Oct. 13, 1994, 108 Stat. 3394; Pub. L. 109–364, div. A, title VIII, §802(b), Oct. 17, 2006, 120 Stat. 2313; Pub. L. 110–181, div. A, title VIII, §815(a)(2), Jan. 28, 2008, 122 Stat. 223; Pub. L. 113–291, div. A, title X, §1071(a)(5), Dec. 19, 2014, 128 Stat. 3504; Pub. L. 114–92, div. A, title VIII, §813(a), Nov. 25, 2015, 129 Stat. 891; Pub. L. 115–232, div. A, title VIII, §§836(c)(8), 865, Aug. 13, 2018, 132 Stat. 1866, 1901, as amended by Pub. L. 116–283, div. A, title X, §1081(d)(4)(B)(ii), Jan. 1, 2021, 134 Stat. 3874; Pub. L. 117–81, div. A, title X, §1081(a)(28), Dec. 27, 2021, 135 Stat. 1921.

Prior Provisions

A prior section 3784, act Aug. 10, 1956, ch. 1041, 70A Stat. 219; Pub. L. 86–616, §2(a), July 12, 1960, 74 Stat. 387, authorized Secretary of the Army to remove an officer from active list of Regular Army if his removal is recommended by a board of review and provided that decision of Secretary in such a case is final and conclusive, prior to repeal by Pub. L. 96–513, title II, §213, title VII, §701, Dec. 12, 1980, 94 Stat. 2885, 2955, effective Sept. 15, 1981. See section 1184 of this title.

Amendments

2021—Pub. L. 116–283, §1833(k), transferred subsec. (f) of section 2321 of this title to this section, struck out subsec. (f) designation and heading "Presumption of Development Exclusively at Private Expense" at beginning, and substituted "section 3782(c) of this title" for "subsection (d)(3)".

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.

§3785. Technical data: decision by contracting officer; claims; rights and liability upon final disposition

(a) Decision by Contracting Officer.—

(1) Upon failure by the contractor or subcontractor to submit any response under section 3782(c) of this title, the contracting officer shall issue a decision pertaining to the validity of the asserted restriction.

(2) After review of any justification submitted in response to the notice provided pursuant to section 3782(c) of this title, the contracting officer shall, within 60 days of receipt of any justification submitted, issue a decision or notify the party asserting the restriction of the time within which a decision will be issued.

(b) Claims.—If a claim pertaining to the validity of the asserted restriction is submitted in writing to a contracting officer by a contractor or subcontractor at any tier, such claim shall be considered a claim within the meaning of chapter 71 of title 41.

(c) Rights and Liability Upon Final Disposition.—

(1) If, upon final disposition, the contracting officer's challenge to the use or release restriction is sustained—

(A) the restriction shall be cancelled; and

(B) if the asserted restriction is found not to be substantially justified, the contractor or subcontractor asserting the restriction shall be liable to the United States for payment of the cost to the United States of reviewing the asserted restriction and the fees and other expenses (as defined in section 2412(d)(2)(A) of title 28) incurred by the United States in challenging the asserted restriction, unless special circumstances would make such payment unjust.

(2) If, upon final disposition, the contracting officer's challenge to the use or release restriction is not sustained—

(A) the United States shall continue to be bound by the restriction; and

(B) the United States shall be liable for payment to the party asserting the restriction for fees and other expenses (as defined in section 2412(d)(2)(A) of title 28) incurred by the party asserting the restriction in defending the asserted restriction if the challenge by the United States is found not to be made in good faith.

(Added and amended Pub. L. 116–283, div. A, title XVIII, §1833(g), (l), Jan. 1, 2021, 134 Stat. 4231, 4233.)

Editorial Notes

Codification

The text of subsec. (g) of section 2321 of this title, which was transferred to this section, redesignated as subsec. (a), and amended by Pub. L. 116–283, §1833(l)(1), (2), was based on Pub. L. 98–525, title XII, §1216(a), Oct. 19, 1984, 98 Stat. 2597; Pub. L. 100–26, §7(a)(5)(A)(i), (C), Apr. 21, 1987, 101 Stat. 276, 277; Pub. L. 103–355, title VIII, §8106(b)(1), Oct. 13, 1994, 108 Stat. 3393.

The text of subsec. (h) of section 2321 of this title, which was transferred to this section, redesignated as subsec. (b), and amended by Pub. L. 116–283, §1833(l)(1), was based on Pub. L. 98–525, title XII, §1216(a), Oct. 19, 1984, 98 Stat. 2598; Pub. L. 100–26, §7(a)(5)(A)(i), (D), Apr. 21, 1987, 101 Stat. 276, 277; Pub. L. 103–355, title VIII, §8106(b)(1), Oct. 13, 1994, 108 Stat. 3393; Pub. L. 111–350, §5(b)(18), Jan. 4, 2011, 124 Stat. 3844.

The text of subsec. (i) of section 2321 of this title, which was transferred to this section, redesignated as subsec. (c), and amended by Pub. L. 116–283, §1833(l)(1), (3), was based on Pub. L. 98–525, title XII, §1216(a), Oct. 19, 1984, 98 Stat. 2598; Pub. L. 100–26, §7(a)(5)(A)(i), (E), Apr. 21, 1987, 101 Stat. 276, 277; Pub. L. 103–355, title VIII, §8106(b)(1), Oct. 13, 1994, 108 Stat. 3393; Pub. L. 115–232, div. A, title VIII, 866(a), Aug. 13, 2018, 132 Stat. 1901; Pub. L. 116–92, div. A, title VIII, §808(b), Dec. 20, 2019, 133 Stat. 1486.

Prior Provisions

A prior section 3785, act Aug. 10, 1956, ch. 1041, 70A Stat. 219; Pub. L. 86–616, §2(a), July 12, 1960, 74 Stat. 387, provided that each officer under consideration for removal from active list of Regular Army under this chapter be given written notification, at least 30 days prior to a board of inquiry hearing, that he is being required to show cause for retention on active list, be allowed reasonable time to prepare a defense, be allowed to appear in person and by counsel at proceedings before a board of inquiry, and be allowed full access to, and furnished copies of, records relevant to his case at all stages of proceeding, prior to repeal by Pub. L. 96–513, title II, §213, title VII, §701, Dec. 12, 1980, 94 Stat. 2885, 2955, effective Sept. 15, 1981. See section 1185 of this title.

Amendments

2021—Subsec. (a). Pub. L. 116–283, §1833(l)(1), (2), redesignated subsec. (g) of section 2321 of this title as subsec. (a) of this section, substituted "section 3782(c) of this title" for "subsection (d)(3)" in two places, and realigned margins of pars. (1) and (2). Amendment directing substitution of "(1) Upon failure" for "(1) Upon failure" as part of margin realignment was executed by substituting "(1) Upon failure" for "(1) Upon a failure" to reflect the probable intent of Congress.

Subsec. (b). Pub. L. 116–283, §1833(l)(1), redesignated subsec. (h) of section 2321 of this title as subsec. (b) of this section.

Subsec. (c). Pub. L. 116–283, §1833(l)(3), which directed amendment of subsec. (c) of section 3786 of this title by realigning the margins of pars. (1) and (2), was executed to subsec. (c) of this section to reflect the probable intent of Congress.

Pub. L. 116–283, §1833(l)(1), redesignated subsec. (i) of section 2321 of this title as subsec. (c) of this section.

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.

§3786. Use or release restriction: definition

In this subchapter, the term "use or release restriction", with respect to technical data delivered to the United States under a contract subject to this section, means a restriction by the contractor or subcontractor on the right of the United States—

(1) to use such technical data; or

(2) to release or disclose such technical data to persons outside the Government or permit the use of such technical data by persons outside the Government.

(Added and amended Pub. L. 116–283, div. A, title XVIII, §1833(g), (m), Jan. 1, 2021, 134 Stat. 4231, 4233.)

Editorial Notes

Codification

The text of subsec. (j) of section 2321 of this title, which was transferred to this section and amended by Pub. L. 116–283, §1833(m), was based on Pub. L. 100–26, §7(a)(5), Apr. 21, 1987, 101 Stat. 277; Pub. L. 100–180, div. A, title XII, §1231(6), Dec. 4, 1987, 101 Stat. 1160; Pub. L. 103–355, title VIII, §8106(b)(1), Oct. 13, 1994, 108 Stat. 3393.

Prior Provisions

Prior sections 3786 and 3787 were repealed by Pub. L. 96–513, title II, §213, title VII, §701, Dec. 12, 1980, 94 Stat. 2885, 2955, effective Sept. 15, 1981.

Section 3786, acts Aug. 10, 1956, ch. 1041, 70A Stat. 219; July 12, 1960, Pub. L. 86–616, §2(a), 74 Stat. 387, authorized Secretary of the Army, at any time during proceedings under this chapter and before removal of an officer from active list of Regular Army, to grant that officer's request for voluntary retirement, if he is otherwise qualified therefor, or for honorable discharge with severance benefits. See section 1186 of this title.

Section 3787, added Pub. L. 86–616, §2(a), July 12, 1960, 74 Stat. 388, provided that no officer serve on a board under this chapter unless he holds a regular or temporary grade above lieutenant colonel, and is senior in regular grade to, and outranks, any officer considered by board and that no person be a member of more than one board convened under this chapter for same officer. See section 1187 of this title.

Amendments

2021—Pub. L. 116–283, §1833(m), transferred subsec. (j) of section 2321 of this title to this section, struck out subsec. (j) designation and heading "Use or Release Restriction Defined" at beginning, and substituted "In this subchapter" for "In this section" in introductory provisions.

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.

SUBCHAPTER III—OTHER PROVISIONS RELATING TO PROPRIETARY CONTRACTOR DATA AND RIGHTS IN TECHNICAL DATA

        

Editorial Notes

Amendments

2021—Pub. L. 117–81, div. A, title XVII, §1701(b)(12)(A), (f)(6), Dec. 27, 2021, 135 Stat. 2134, 2139, made technical amendment to Pub. L. 116–283, div. A, title XVIII, §1833(n), Jan. 1, 2021, 134 Stat. 4233, which added this analysis, added "[Reserved]" for item 3792, and struck out former item 3792 "Technical data rights: non-FAR agreements".

Statutory Notes and Related Subsidiaries

Technical Data Rights Under Non-FAR Agreements

Pub. L. 110–417, [div. A], title VIII, §822, Oct. 14, 2008, 122 Stat. 4532, as amended by Pub. L. 111–383, div. A, title X, §1075(e)(13), Jan. 7, 2011, 124 Stat. 4375, provided that:

"(a) Policy Guidance.—Not later than 270 days after the date of the enactment of this Act [Oct. 14, 2008], the Secretary of Defense shall issue policy guidance with respect to rights in technical data under a non-FAR agreement. The guidance shall—

"(1) establish criteria for defining the legitimate interests of the United States and the party concerned in technical data pertaining to an item or process to be developed under the agreement;

"(2) require that specific rights in technical data be established during agreement negotiations and be based upon negotiations between the United States and the potential party to the agreement, except in any case in which the Secretary of Defense determines, on the basis of criteria established in such policy guidance, that the establishment of rights during or through agreement negotiations would not be practicable; and

"(3) require the program manager for a major weapon system or an item of personnel protective equipment that is to be developed using a non-FAR agreement to assess the long-term technical data needs of such system or item.

"(b) Requirement to Include Provisions in Non-FAR Agreements.—A non-FAR agreement shall contain appropriate provisions relating to rights in technical data consistent with the policy guidance issued pursuant to subsection (a).

"(c) Definitions.—In this section:

"(1) The term 'non-FAR agreement' means an agreement that is not subject to laws pursuant to which the Federal Acquisition Regulation is prescribed, including—

"(A) a transaction authorized under section 2371 of title 10, United States Code [now 10 U.S.C. 4021]; and

"(B) a cooperative research and development agreement.

"(2) The term 'party', with respect to a non-FAR agreement, means a non-Federal entity and includes any of the following:

"(A) A contractor and its subcontractors (at any tier).

"(B) A joint venture.

"(C) A consortium.

"(d) Report on Life Cycle Planning for Technical Data Needs.—Not later than 270 days after the date of enactment of this Act [Oct. 14, 2008], the Secretary of Defense shall submit to the Committees on Armed Services of the Senate and the House of Representatives a report on the implementation of the requirements in section 2320(e) of title 10, United States Code [see 10 U.S.C. 3774(a), (b)], for the assessment of long-term technical data needs to sustain major weapon systems. Such report shall include—

"(1) a description of all relevant guidance or policies issued;

"(2) a description of the extent to which program managers have received training to better assess the long-term technical data needs of major weapon systems and subsystems; and

"(3) a description of one or more examples, if any, where a priced contract option has been used on major weapon systems for the future delivery of technical data and one or more examples, if any, where all relevant technical data were acquired upon contract award."

§3791. Management of intellectual property matters within the Department of Defense

(a) Policy Required.—The Secretary of Defense, acting through the Under Secretary of Defense for Acquisition and Sustainment, shall develop policy on the acquisition or licensing of intellectual property—

(1) to enable coordination and consistency across the military departments and the Department of Defense in strategies for acquiring or licensing intellectual property and communicating with industry;

(2) to ensure that program managers are aware of the rights afforded the Federal Government and contractors in intellectual property and that program managers fully consider and use all available techniques and best practices for acquiring or licensing intellectual property early in the acquisition process; and

(3) to encourage customized intellectual property strategies for each system based on, at a minimum, the unique characteristics of the system and its components, the product support strategy for the system, the organic industrial base strategy of the military department concerned, and the commercial market.

(b) Cadre of Intellectual Property Experts.—For a provision requiring establishment of a cadre of personnel who are experts in intellectual property matters, see section 1707 of this title.

(c) Guidelines and Resources.—

(1) In general.—The Secretary of Defense, acting through the Under Secretary of Defense for Acquisition and Sustainment, shall develop guidelines and resources on the acquisition or licensing of intellectual property, including—

(A) intellectual property strategies and other mechanisms supporting the use of modular open system approaches (as defined in section 4401(b) of this title);

(B) evaluation and negotiation of intellectual property licenses in competitive and non-competitive awards;

(C) models and best practices for specially negotiated licenses, including specially negotiated licenses described in section 3774(c) of this title; and

(D) definitions, key terms, examples, and case studies that clarify differences between—

(i) detailed manufacturing and process data;

(ii) form, fit, and function data;

(iii) data required for operations, maintenance, installation, and training;

(iv) modular system interfaces (as defined in section 4401(b) of this title); and

(v) technical data pertaining to an interface between an item or process and other items or processes necessary for the segregation of an item or process from, or the reintegration of that item or process (or a functionally equivalent item or process) with, other items or processes.

(2) Guidelines and resources limit.—The guidelines and resources developed under paragraph (1) may not alter or affect any authority or duty under this section or section 1707 of this title.

(3) Review and consultation.—In developing the guidelines and resources described in paragraph (1), the Secretary shall—

(A) review the applicable statutory and regulatory history, including among the definitions and key terms in section 3771 of this title, to ensure consistency; and

(B) regularly consult with appropriate government and industry persons and organizations.

(4) Training.—The Secretary of Defense shall ensure that the acquisition workforce receives training on the guidelines and resources developed under paragraph (1).

(Added and amended Pub. L. 116–283, div. A, title XVIII, §1833(n), (o)(1), Jan. 1, 2021, 134 Stat. 4234; Pub. L. 117–81, div. A, title XVII, §1701(b)(12)(A), Dec. 27, 2021, 135 Stat. 2134; Pub. L. 117–263, div. A, title VIII, §841, Dec. 23, 2022, 136 Stat. 2716.)

Editorial Notes

Codification

The text of subsec. (a) of section 2322 of this title, which was transferred to this section by Pub. L. 116–283, §1833(o)(1), was based on Pub. L. 115–91, div. A, title VIII, §802(a)(1), Dec. 12, 2017, 131 Stat. 1450.

Prior Provisions

Prior sections 3791 and 3792 were repealed by Pub. L. 96–513, title II, §213, title VII, §701, Dec. 12, 1980, 94 Stat. 2885, 2955, effective Sept. 15, 1981.

Section 3791, added Pub. L. 86–616, §3(a), July 12, 1960, 74 Stat. 388, authorized Secretary of the Army to convene at any time a board of general officers to review record of any commissioned officer on active list of Regular Army to determine whether he should be required, because of moral dereliction, professional dereliction, or because his retention is not clearly consistent with interests of national security, to show cause for his retention on active list. See section 1181(b) of this title.

Section 3792, added Pub. L. 86–616, §3(a), July 12, 1960, 74 Stat. 388, provided for boards of inquiry, composed of three or more general officers, to be convened at such places as Secretary of the Army prescribes, to receive evidence and make findings and recommendations whether an officer, required to show cause under section 3791 of this title, should be retained on active list of Regular Army. See section 1182 of this title.

Amendments

2022—Pub. L. 117–263, §841(1), substituted "Department of Defense" for "department of defense" in section catchline.

Subsec. (c). Pub. L. 117–263, §841(2), added subsec. (c).

2021—Pub. L. 117–81, §1701(b)(12)(A), which directed amendment of section 1833(n) of Pub. L. 116–283, which enacted this section, by substituting "DEPARTMENT OF DEFENSE" for "DEPARTMENT OF DEFENSE" in text of section catchline, could not be executed.

Subsec. (a). Pub. L. 116–283, §1833(o)(1), transferred subsec. (a) of section 2322 of this title to this section.

Statutory Notes and Related Subsidiaries

Effective Date of 2021 Amendment

Amendment by Pub. L. 117–81 applicable as if included in the enactment of title XVIII of Pub. L. 116–283 as enacted, see section 1701(a)(2) of Pub. L. 117–81, set out in a note preceding section 3001 of this title and Effective Date note below.

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.

Pilot Program for the Use of Innovative Intellectual Property Strategies

Pub. L. 118–31, div. A, title VIII, §808, Dec. 22, 2023, 137 Stat. 319, provided that:

"(a) Establishment.—The Secretary of Defense shall establish a pilot program for the use of innovative intellectual property strategies that meet the criteria described in subsection (b) to acquire the necessary technical data rights required for the operation, maintenance, and installation of, and training for, covered programs designated under subsection (c).

"(b) Criteria for Strategies.—The innovative intellectual property strategies used in a pilot program established under this section may include the following:

"(1) The use of an escrow account to verify and hold intellectual property data.

"(2) The use of royalties or licenses.

"(3) Other strategies, as determined by the Secretary.

"(c) Designation of Covered Programs.—Not later than May 1, 2024, and with respect to the pilot program established under this section—

"(1) the Secretary of each military department shall designate one covered program within the military department under the jurisdiction of such Secretary; and

"(2) the Under Secretary of Defense for Acquisition and Sustainment shall designate one covered program within the Defense Agencies or Department of Defense Field Activities (as defined, respectively, in section 101 of title 10, United States Code).

"(d) Briefing Requirement.—Not later than 180 days after the date of the enactment of this Act [Dec. 22, 2023], the Under Secretary of Defense for Acquisition and Sustainment, in coordination with the Secretaries of the military departments, shall provide a briefing to the Committees on Armed Services of the Senate and the House of Representatives with a detailed plan to implement the pilot program required under this section.

"(e) Annual Report.—Beginning on the date on which the first program is designated under subsection (c) and until the termination date in subsection (f), the Under Secretary of Defense for Acquisition and Sustainment, in coordination with the Secretaries of the military departments, shall provide an annual report to the Committees on Armed Services of the Senate and the House of Representatives on—

"(1) the effectiveness of the pilot program in acquiring the necessary technical data rights necessary to support timely, cost-effective maintenance and sustainment of the acquisition programs designated under subsection (c); and

"(2) any recommendations for the applicability of lessons learned from the pilot program.

"(f) Termination.—The authority to carry out the pilot program established under this section shall terminate on December 31, 2028.

"(g) Definitions.—In this section:

"(1) The term 'covered program' means an acquisition program under which procurements are conducted using a pathway of the adaptive acquisition framework (as described in Department of Defense Instruction 5000.02, 'Operation of the Adaptive Acquisition Framework').

"(2) The term 'technical data rights' has the meaning given in section 3771 of title 10, United States Code."

§3793. Copyrights, patents, designs, etc.; acquisition

Funds appropriated for a military department available for making or procuring supplies may be used to acquire any of the following if the acquisition relates to supplies or processes produced or used by or for, or useful to, that department:

(1) Copyrights, patents, and applications for patents.

(2) Licenses under copyrights, patents, and applications for patents.

(3) Design and process data, technical data, and computer software.

(4) Releases for past infringement of patents or copyrights or for unauthorized use of technical data or computer software.

(Aug. 10, 1956, ch. 1041, 70A Stat. 137, §2386; Pub. L. 86–726, §3, Sept. 8, 1960, 74 Stat. 855; Pub. L. 103–355, title III, §3063, Oct. 13, 1994, 108 Stat. 3337; Pub. L. 104–106, div. A, title VIII, §813, Feb. 10, 1996, 110 Stat. 395; renumbered §3793, Pub. L. 116–283, div. A, title XVIII, §1833(o)(2), Jan. 1, 2021, 134 Stat. 4234; Pub. L. 117–81, div. A, title XVII, §1701(b)(12)(B), Dec. 27, 2021, 135 Stat. 2134.)

Historical and Revision Notes

Revised section	Source (U.S. Code)	Source (Statutes at Large)
2386	31:649b.	Aug. 1, 1953, ch. 305, §609, 67 Stat. 350.

The words "equipment, and materials" are omitted as covered by the word "supplies". The word "hereafter" is omitted as executed. The words "may be used" are substituted for the words "shall * * * be available". The words "if the acquisition relates to" are substituted for 31:649b (1st 8 words of last sentence). In clauses (1), (2), and (4), the word "patents" is substituted for the words "letters patent".

Editorial Notes

Prior Provisions

A prior section 3793, added Pub. L. 86–616, §3(a), July 12, 1960, 74 Stat. 389, provided for boards of review, composed of three or more general officers, to be convened by Secretary of the Army, at such places as he prescribes, to review records of cases of officers recommended by boards of inquiry for removal from active list of Regular Army, prior to repeal by Pub. L. 96–513, title II, §213, title VII, §701, Dec. 12, 1980, 94 Stat. 2885, 2955, effective Sept. 15, 1981.

Amendments

2021—Pub. L. 116–283, §1833(o)(2), as amended by Pub. L. 117–81, §1701(b)(12)(B), renumbered section 2386 of this title as this section.

1996—Par. (3). Pub. L. 104–106 amended par. (3) generally, substituting "Design and process data, technical data, and computer software" for "Technical data and computer software".

1994—Pars. (3), (4). Pub. L. 103–355 added pars. (3) and (4) and struck out former pars. (3) and (4) which read as follows:

"(3) Designs, processes, and manufacturing data.

"(4) Releases, before suit is brought, for past infringement of patents or copyrights."

1960—Pub. L. 86–726 inserted "or copyrights" after "patents" in cl. (4).

Statutory Notes and Related Subsidiaries

Effective Date of 2021 Amendment

Amendment by Pub. L. 117–81 applicable as if included in the enactment of title XVIII of Pub. L. 116–283 as enacted, see section 1701(a)(2) of Pub. L. 117–81, set out in a note preceding section 3001 of this title and note below.

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 a note preceding section 3001 of this title.

§3794. Release of technical data under Freedom of Information Act: recovery of costs

(a) In General.—(1) The Secretary of Defense shall, if required to release technical data under section 552 of title 5 (relating to the Freedom of Information Act), release such technical data to the person requesting the release if the person pays all reasonable costs attributable to search, duplication, and review.

(2) The Secretary of Defense shall prescribe regulations, pursuant to notice and receipt of public comment, specifying a uniform schedule of fees under this section.

(b) Crediting of Receipts.—An amount received under this section—

(1) shall be retained by the Department of Defense or the element of the Department of Defense receiving the amount; and

(2) shall be merged with and available for the same purpose and the same time period as the appropriation from which the costs incurred in complying with requests for technical data were paid.

(c) Waiver.—The Secretary of Defense shall waive the payment of costs required by subsection (a) which are in an amount greater than the costs that would be required for such a release of information under section 552 of title 5 if—

(1) the request is made by a citizen of the United States or a United States corporation, and such citizen or corporation certifies that the technical data requested is required to enable such citizen or corporation to submit an offer or determine whether it is capable of submitting an offer to provide the product to which the technical data relates to the United States or a contractor with the United States (except that the Secretary may require the citizen or corporation to pay a deposit in an amount equal to not more than the cost of complying with the request, to be refunded upon submission of an offer by the citizen or corporation);

(2) the release of technical data is requested in order to comply with the terms of an international agreement; or

(3) the Secretary determines, in accordance with section 552(a)(4)(A)(iii) of title 5, that such a waiver is in the interests of the United States.

(Added Pub. L. 99–500, §101(c) [title X, §954(a)(1)], Oct. 18, 1986, 100 Stat. 1783–82, 1783-172, and Pub. L. 99–591, §101(c) [title X, §954(a)(1)], Oct. 30, 1986, 100 Stat. 3341–82, 3341-172, §2328; Pub. L. 99–661, div. A, title IX, formerly title IV, §954(a)(1), Nov. 14, 1986, 100 Stat. 3952, renumbered title IX, Pub. L. 100–26, §3(5), Apr. 21, 1987, 101 Stat. 273; amended Pub. L. 100–26, §7(a)(7)(A), (B)(i), Apr. 21, 1987, 101 Stat. 278; renumbered §3794, Pub. L. 116–283, div. A, title XVIII, §1833(o)(2), Jan. 1, 2021, 134 Stat. 4234; Pub. L. 117–81, div. A, title XVII, §1701(b)(12)(B), Dec. 27, 2021, 135 Stat. 2134.)

Editorial Notes

Codification

Pub. L. 99–591 is a corrected version of Pub. L. 99–500.

Pub. L. 99–500, Pub. L. 99–591, and Pub. L. 99–661 added identical sections.

Prior Provisions

Prior sections 3794 to 3797 were repealed by Pub. L. 96–513, title II, §213, title VII, §701, Dec. 12, 1980, 94 Stat. 2885, 2955, effective Sept. 15, 1981.

Section 3794, added Pub. L. 86–616, §3(a), July 12, 1960, 74 Stat. 389, authorized Secretary of the Army to remove an officer from active list of Regular Army if his removal is recommended by a board of review and provided that decision of Secretary in such a case is final and conclusive. See section 1184 of this title.

Section 3795, added Pub. L. 86–616, §3(a), July 12, 1960, 74 Stat. 389, provided that each officer under consideration for removal from active list of Regular Army under this chapter be given written notification, at least 30 days prior to a board of inquiry hearing, that he is being required to show cause for retention on active list, be allowed reasonable time to prepare a defense, be allowed to appear in person and by counsel at proceedings before board of inquiry, and be allowed full access to, and furnished copies of, records relevant to his case at all stages of proceedings, except records that Secretary determines be withheld in interests of national security, in which case, a summary, to extent national security permits, be furnished. See section 1185 of this title.

Section 3796, added Pub. L. 86–616, §3(a), July 12, 1960, 74 Stat. 389, authorized Secretary of the Army, at any time during proceedings under this chapter and before removal of an officer from active list of Regular Army, to grant that officer's request for voluntary retirement, if he is otherwise qualified therefor, or for honorable discharge with severance benefits. See section 1186 of this title.

Section 3797, added Pub. L. 86–616, §3(a), July 12, 1960, 74 Stat. 390, provided that no officer serve on a board under this chapter unless he holds a regular or temporary grade above lieutenant colonel, and is senior in regular grade to, and outranks, any officer considered by that board and that no person be a member of more than one board convened under this chapter for same officer. See section 1187 of this title.

Amendments

2021—Pub. L. 116–283, §1833(o)(2), as amended by Pub. L. 117–81, §1701(b)(12)(B), renumbered section 2328 of this title as this section.

1987—Pub. L. 100–26, §7(a)(7)(B)(i), substituted "Release of technical data under Freedom of Information Act: recovery of costs" for "Release of technical data" in section catchline.

Subsec. (a)(1). Pub. L. 100–26, §7(a)(7)(A)(i)(I), substituted "such technical data to the person requesting the" for "technical data to a person requesting such a".

Pub. L. 100–26, §7(a)(7)(A)(i)(II), substituted "search, duplication, and review" for "search and duplication".

Subsec. (b). Pub. L. 100–26, §7(a)(7)(A)(ii), substituted "Crediting of receipts" for "Disposition of costs" in heading.

Subsec. (c)(3). Pub. L. 100–26, §7(a)(7)(A)(iii), substituted "section 552(a)(4)(A)(iii)" for "section 552(a)(4)(A)".

Statutory Notes and Related Subsidiaries

Effective Date of 2021 Amendment

Amendment by Pub. L. 117–81 applicable as if included in the enactment of title XVIII of Pub. L. 116–283 as enacted, see section 1701(a)(2) of Pub. L. 117–81, set out in a note preceding section 3001 of this title and Effective Date note below.

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 a note preceding section 3001 of this title.

Effective Date of 1987 Amendment

Pub. L. 100–26, §12(d)(2), Apr. 21, 1987, 101 Stat. 289, provided that: "The amendment to section 2328 of such title [now 10 U.S.C. 3794] made by section 7(a)(7)(A)(i)(II) shall take effect on the same date and in the same manner as provided in section 1804(b) of Public Law 99–570 [set out as an Effective Date of 1986 Amendment note under section 552 of Title 5, Government Organization and Employees] for the amendment made by section 1803 of that Public Law to section 552a of title 5, United States Code [probably means amendment by section 1803 of Pub. L. 99–570 to section 552(a) of Title 5]."

Effective Date

Pub. L. 99–500, §101(c) [title X, §954(b)], Oct. 18, 1986, 100 Stat. 1783–82, 1783-173, Pub. L. 99–591, §101(c) [title X, §954(b)], Oct. 30, 1986, 100 Stat. 3341–82, 3341-173, and Pub. L. 99–661, div. A, title IX, formerly title IV, §954(b), Nov. 14, 1986, 100 Stat. 3953, renumbered title IX by Pub. L. 100–26, §3(5), Apr. 21, 1987, 101 Stat. 273, provided that: "The amendments made by this section [enacting this section] shall take effect at the end of the 90-day period beginning on the date of the enactment of this Act [Oct. 18, 1986]."

CHAPTER 277—CONTRACT FINANCING

        

Editorial Notes

Prior Provisions

A prior chapter 277 "CONTRACT FINANCING", as added by Pub. L. 115–232, div. A, title VIII, §801(a), Aug. 13, 2018, 132 Stat. 1828, and consisting of reserved section 3801, was repealed by Pub. L. 116–283, div. A, title XVIII, §1834(a), Jan. 1, 2021, 134 Stat. 4234.

Amendments

2021—Pub. L. 117–81, div. A, title XVII, §1701(n)(1)(A), Dec. 27, 2021, 135 Stat. 2145, amended Pub. L. 116–283, div. A, title XVIII, §1834(a), Jan. 1, 2021, 134 Stat. 4234, which added this analysis, by adding item 3808. Amendment directing "adding at the following new item" was executed as if it had read "adding at the end the following new item" to reflect the probable intent of Congress.

§3801. Authority of agency

(a) Payment Authority.—The head of any agency may—

(1) make advance, partial, progress, or other payments under contracts for property or services made by the agency; and

(2) insert in solicitations for procurement of property or services a provision limiting to small business concerns advance or progress payments.

(b) Payment Dates for Contractors That Are Small Business Concerns.—

(1) Prime contractors.—For a prime contractor (as defined in section 8701 of title 41) that is a small business concern (as defined in section 3 of the Small Business Act (15 U.S.C. 632)), the Secretary of Defense shall, to the fullest extent permitted by law, establish an accelerated payment date with a goal of 15 days after receipt of a proper invoice for the amount due.

(2) Subcontractors.—For a prime contractor that subcontracts with a small business concern, the Secretary of Defense shall, to the fullest extent permitted by law, establish an accelerated payment date with a goal of 15 days after receipt of a proper invoice for the amount due if the prime contractor agrees to make payments to the subcontractor in accordance with the accelerated payment date, to the maximum extent practicable, without any further consideration from or fees charged to the subcontractor.

(Added and amended Pub. L. 116–283, div. A, title XVIII, §1834(a), (b), Jan. 1, 2021, 134 Stat. 4234.)

Editorial Notes

Codification

The text of subsec. (a) of section 2307 of this title, which was transferred to this section and amended by Pub. L. 116–283, §1834(b), was based on act Aug. 10, 1956, ch. 1041, 70A Stat. 131; Pub. L. 85–800, §9, Aug. 28, 1958, 72 Stat. 967; Pub. L. 103–355, title II, §2001(a)(2), (c), Oct. 13, 1994, 108 Stat. 3301, 3302; Pub. L. 115–232, div. A, title VIII, §852, Aug. 13, 2018, 132 Stat. 1884; Pub. L. 116–92, div. A, title XVII, §1731(a)(40), Dec. 20, 2019, 133 Stat. 1814; Pub. L. 116–283, div. A, title VIII, §815, Jan. 1, 2021, 134 Stat. 3750; Pub. L. 117–81, div. A, title VIII, §814, Dec. 27, 2021, 135 Stat. 1823.

Amendments

2021—Subsec. (a). Pub. L. 116–283, §1834(b)(1)(A), (2), transferred subsec. (a) of section 2307 of this title to this section, struck out par. (1) designation before "The head of", and redesignated subpars. (A) and (B) as pars. (1) and (2), respectively. Former par. (2) of subsec. (a) redesignated subsec. (b).

Subsec. (b). Pub. L. 116–283, §1834(b)(1)(B), (3)(A)–(C)(i), redesignated par. (2) of subsec. (a) as subsec. (b), inserted subsec. heading, and redesignated subpars. (A) and (B) as pars. (1) and (2), respectively, and inserted par. headings.

Subsec. (b)(2). Pub. L. 116–283, §1834(b)(3)(C)(ii), which directed amendment of par. (2) by redesignating cls. (i) and (ii) as subpars. (A) and (B), respectively, could not be executed because of the amendment made by section 815(2) of Pub. L. 116–283, which struck out cls. (i) and (ii) in section 2307(a)(2)(B) of this title prior to its transfer and redesignation as subsec. (b)(2) of this section.

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.

§3802. Payment

(a) Preference for Performance-Based Payments.—Whenever practicable, payments under section 3801 of this title shall be made using performance-based payments on any of the following bases:

(1) Performance measured by objective, quantifiable methods such as delivery of acceptable items, work measurement, or statistical process controls.

(2) Accomplishment of events defined in the program management plan.

(3) Other quantifiable measures of results.

(b) Basis for performance-based payments.—Performance-based payments shall not be conditioned upon costs incurred in contract performance but on the achievement of performance outcomes listed in subsection (a).

(c) Contractor Accounting Systems.—

(1) In order to receive performance-based payments, a contractor's accounting system shall be in compliance with Generally Accepted Accounting Principles, and there shall be no requirement for a contractor to develop Government-unique accounting systems or practices as a prerequisite for agreeing to receive performance-based payments.

(2) Nothing in this chapter shall be construed to grant the Defense Contract Audit Agency the authority to audit compliance with Generally Accepted Accounting Principles.

(d) Payment Amount.—Payments made under section 3801 of this title may not exceed the unpaid contract price.

(e) Eligibility of Nontraditional Defense Contractors.—The Secretary of Defense shall ensure that nontraditional defense contractors and other private sector companies are eligible for performance-based payments, consistent with best commercial practices.

(Added and amended Pub. L. 116–283, div. A, title XVIII, §1834(a), (c), Jan. 1, 2021, 134 Stat. 4234, 4235.)

Editorial Notes

Codification

The text of subsec. (b) of section 2307 of this title, which was transferred to this section, redesignated as subsecs. (a), (b), (c), and (e), and amended by Pub. L. 116–283, §1834(c)(1)–(5), (7), was based on Pub. L. 103–355, title II, §2001(b), Oct. 13, 1994, 108 Stat. 3302; Pub. L. 114–328, div. A, title VIII, §831(a), Dec. 23, 2016, 130 Stat. 2282.

The text of subsec. (c) of section 2307 of this title, which was transferred to this section, redesignated as subsec. (d), and amended by Pub. L. 116–283, §1834(c)(1), (6), was based on act Aug. 10, 1956, ch. 1041, 70A Stat. 131; Pub. L. 85–800, §9, Aug. 28, 1958, 72 Stat. 967; Pub. L. 103–355, title II, §2001(a)(3), (7), Oct. 13, 1994, 108 Stat. 3301.

Amendments

2021—Subsec. (a). Pub. L. 116–283, §1834(c)(1)–(3), redesignated subsec. (b) of section 2307 of this title as subsec. (a) of this section, struck out par. (1) designation before "Whenever practicable", substituted "section 3801 of this title" for "subsection (a)" in introductory provisions, and redesignated subpars. (A) to (C) as pars. (1) to (3), respectively. Amendment directing striking out par. (1) designation before "Whenever possible" was executed by striking it out before "Whenever practicable" to reflect the probable intent of Congress. Former pars. (2) to (4) of subsec. (a) redesignated subsecs. (b), (e), and (c), respectively.

Subsec. (b). Pub. L. 116–283, §1834(c)(2)(B), (4), after redesignation of section 2307(b) of this title as subsec. (a) of this section, redesignated par. (2) of subsec. (a) as subsec. (b), inserted heading, and substituted "subsection (a)" for "paragraph (1)".

Subsec. (c). Pub. L. 116–283, §1834(c)(2)(D), (5), after redesignation of section 2307(b) of this title as subsec. (a) of this section, redesignated par. (4) of subsec. (a) as subsec. (c), inserted heading, redesignated subpars. (A) and (B) as pars. (1) and (2), respectively, and realigned margins, and, in par. (2), substituted "this chapter" for "this section".

Subsec. (d). Pub. L. 116–283, §1834(c)(1), (6), redesignated subsec. (c) of section 2307 of this title as subsec. (d) of this section and substituted "section 3801 of this title" for "subsection (a)".

Subsec. (e). Pub. L. 116–283, §1834(c)(2)(C), (7), after redesignation of section 2307(b) of this title as subsec. (a) of this section, redesignated par. (3) of subsec. (a) as subsec. (e), moved it to the end of the section, and inserted heading.

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.

Regulations

Pub. L. 114–328, div. A, title VIII, §831(b), Dec. 23, 2016, 130 Stat. 2283, provided that: "Not later than 120 days after the date of the enactment of this Act [Dec. 23, 2016], the Secretary of Defense shall revise the Department of Defense Federal Acquisition Regulation Supplement to conform with section 2307(b) of title 10, United States Code [see 10 U.S.C. 3802(a)–(c), (e)], as amended by subsection (a)."

§3803. Security for advance payments

Advance payments made under section 3801 of this title may be made only if the contractor gives adequate security and after a determination by the head of the agency that to do so would be in the public interest. Such security may be in the form of a lien in favor of the United States on the property contracted for, on the balance in an account in which such payments are deposited, and on such of the property acquired for performance of the contract as the parties may agree. This lien is paramount to any other liens and is effective immediately upon the first advancement of funds without filing, notice, or any other action by the United States.

(Added and amended Pub. L. 116–283, div. A, title XVIII, §1834(a), (d), Jan. 1, 2021, 134 Stat. 4234, 4236.)

Editorial Notes

Codification

The text of subsec. (d) of section 2307 of this title, which was transferred to this section and amended by Pub. L. 116–283, §1834(d), was based on act Aug. 10, 1956, ch. 1041, 70A Stat. 131; Pub. L. 85–800, §9, Aug. 28, 1958, 72 Stat. 967; Pub. L. 103–355, title II, §2001(a)(4), (7), (d), Oct. 13, 1994, 108 Stat. 3301, 3302.

Amendments

2021—Pub. L. 116–283, §1834(d), transferred subsec. (d) of section 2307 of this title to this section, struck out subsec. (d) designation and heading "Security for Advance Payments" at beginning, and substituted "section 3801 of this title" for "subsection (a)".

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.

§3804. Conditions for progress payments

(a) Payment Commensurate With Work.—The Secretary of Defense shall ensure that any payment for work in progress (including materials, labor, and other items) under a defense contract that provides for such payments is commensurate with the work accomplished that meets standards established under the contract. The contractor shall provide such information and evidence as the Secretary of Defense determines necessary to permit the Secretary to carry out the preceding sentence.

(b) Limitation.—The Secretary shall ensure that progress payments referred to in subsection (a) are not made for more than 80 percent of the work accomplished under a defense contract so long as the Secretary has not made the contractual terms, specifications, and price definite.

(c) Applicability.—This section applies to any contract in an amount greater than $25,000.

(Added and amended Pub. L. 116–283, div. A, title XVIII, §1834(a), (e), Jan. 1, 2021, 134 Stat. 4234, 4236.)

Editorial Notes

Codification

The text of subsec. (e) of section 2307 of this title, which was transferred to this section and amended by Pub. L. 116–283, §1834(e), was based on Pub. L. 100–370, §1(f)(1)(A), July 19, 1988, 102 Stat. 846; Pub. L. 101–510, div. A, title XIII, §1322(a)(4)(B), Nov. 5, 1990, 104 Stat. 1671; Pub. L. 102–25, title VII, §701(d)(4), Apr. 6, 1991, 105 Stat. 114; Pub. L. 103–355, title II, §2001(a)(5), (7), (e), Oct. 13, 1994, 108 Stat. 3301, 3302.

Amendments

2021—Pub. L. 116–283, §1834(e)(1), transferred subsec. (e) of section 2307 of this title to this section and struck out subsec. (e) designation and heading "Conditions for Progress Payments" at beginning.

Subsec. (a). Pub. L. 116–283, §1834(e)(1)(B), (2), after transfer of section 2307(e) of this title to this section, redesignated par. (1) as subsec. (a) and inserted heading.

Subsec. (b). Pub. L. 116–283, §1834(e)(1)(B), (3), after transfer of section 2307(e) of this title to this section, redesignated par. (2) as subsec. (b), inserted heading, and substituted "subsection (a)" for "paragraph (1)".

Subsec. (c). Pub. L. 116–283, §1834(e)(1)(B), (4), after transfer of section 2307(e) of this title to this section, redesignated par. (3) as subsec. (c), inserted heading, and substituted "This section" for "This subsection".

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.

Pilot Program To Incentivize Progress Payments

Pub. L. 118–31, div. A, title VIII, §874, Dec. 22, 2023, 137 Stat. 352, provided that:

"(a) Pilot Program.—The Under Secretary of Defense for Acquisition and Sustainment shall establish and implement a pilot program to incentivize contractor performance by paying covered contractors a progress payment rate that is up to 10 percent higher than the customary progress payment rate on a contract-by-contract basis.

"(b) Incentive Criteria.—The Under Secretary shall develop and establish clear and measurable criteria for the payment to contractors of higher progress payments as described in subsection (a), including criteria for qualifying for such payments and the amount of such payments.

"(c) Applicability.—The Under Secretary shall apply the criteria established under subsection (b) and any associated incentive on a contract-by-contract basis when determining whether to pay a contractor a higher progress payment under the pilot program established under subsection (a) and the amount of such payment.

"(d) Participation Voluntary.—Participation in the pilot program established under subsection (a) shall be on a voluntary basis.

"(e) Notice and Comment.—The Under Secretary shall issue the regulations implementing the pilot program established under subsection (a) and establishing the criteria required by subsection (b) after notice and an opportunity for public comment of not more than 30 days.

"(f) Report.—Not later than September 30, 2024, and annually thereafter, the Under Secretary for Acquisition and Sustainment shall submit to the Committees on Armed Services of the Senate and House of Representatives a report on the implementation and activities of the pilot program established under subsection (a), including a comprehensive list of contractors that received increased progress payments under the pilot program and the contracts with respect to which such increased progress payments were made.

"(g) Definitions.—In this section:

"(1) Covered contractor.—The term 'covered contractor' means a contractor of the Department of Defense that is eligible for progress payments under section 3804 of title 10, United States Code.

"(2) Customary progress payment rate.—The term 'customary progress payment rate' refers to the rate of progress payments provided for under section 3804 of title 10, United States Code, and payable in accordance with the applicable provisions of the Federal Acquisition Regulation and the Defense Federal Acquisition Regulation Supplement.

"(3) Under secretary.—The term 'Under Secretary' means the Under Secretary for Acquisition and Sustainment.

"(h) Sunset.—

"(1) In general.—Except as provided by paragraph (2), the authority to carry out the pilot program established under subsection (a) shall terminate on January 1, 2029.

"(2) Existing contracts.—Notwithstanding paragraph (1), a contractor that the Under Secretary determines under the pilot program established under subsection (a) shall be paid a higher progress payment under such pilot program with respect to a contract in effect as of the date described in paragraph (1) shall receive such higher progress payments until the earlier of—

"(A) the termination or expiration of the contract; or

"(B) the date on which the contractor becomes ineligible for progress payments or higher progress payments under such pilot program."

Waivers of Certain Conditions for Progress Payments Under Certain Contracts During the COVID–19 National Emergency

Pub. L. 116–283, div. A, title VIII, §891, Jan. 1, 2021, 134 Stat. 3793, provided that:

"(a) Waiver of Progress Payments Requirements.—The Secretary of Defense may waive the requirements of section 2307(e)(2) of title 10, United States Code [now 10 U.S.C. 3804(b)], with respect to progress payments for any undefinitized contractual action (as defined in section 2326 of title 10, United States Code [see 10 U.S.C. 3377(b)(1)]; in this section referred to as 'UCA') if the Secretary determines that the waiver is necessary due to the national emergency for the Coronavirus Disease 2019 (COVID–19) and—

"(1) a contractor performing the contract for which a UCA is entered into has not already received increased progress payments from the Secretary of Defense on contractual actions other than UCAs; or

"(2) a contractor performing the contract for which a UCA is entered into, and that has received increased progress payments from the Secretary of Defense on contractual actions other than UCAs, can demonstrate that the contractor has promptly provided the amount of the increase to any subcontractors (at any tier), small business concerns (as defined under section 3 of the Small Business Act (15 U.S.C. 632)), or suppliers of the contractor.

"(b) Definitization.—With respect to a UCA that not been definitized for a period of 180 days beginning on the date on which such UCA was entered into, the Secretary of Defense may only use the waiver authority described in subsection (a) if the Secretary (or a designee at a level not below the head of a contracting activity) provides a certification to the congressional defense committees [Committees on Armed Services and Appropriations of the Senate and the House of Representatives] that such UCA will be definitized within 60 days after the date on which the waiver is issued.

"(c) Submission.—For each use of the waiver authority under subsection (a), the Secretary of Defense shall submit to the congressional defense committees an estimate of the amounts to be provided to subcontractors (at any tier), small business concerns, and suppliers, including an identification of the specific entities receiving an amount from an increased progress payment described under such subsection (a)."

§3805. Payments for commercial products and commercial services

(a) Terms and Conditions for Payments.—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) Security for Payments.—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) Limitation on Advance Payments.—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) Nonapplication of Certain Conditions.—The conditions of sections 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.

(Added and amended Pub. L. 116–283, div. A, title XVIII, §1834(a), (f), Jan. 1, 2021, 134 Stat. 4234, 4236.)

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

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 "sections 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.

§3806. Action in case of fraud

(a) Remedy Coordination Official Defined.—In this section, the term "remedy coordination official", with respect to an agency, means the person or entity in that agency who coordinates within that agency the administration of criminal, civil, administrative, and contractual remedies resulting from investigations of fraud or corruption related to procurement activities.

(b) Recommendation to Reduce or Suspend Payments.—In any case in which the remedy coordination official of an agency finds that there is substantial evidence that the request of a contractor for advance, partial, or progress payment under a contract awarded by that agency is based on fraud, the remedy coordination official shall recommend that the head of the agency reduce or suspend further payments to such contractor.

(c) Reduction or Suspension of Payments.—The head of an agency receiving a recommendation under subsection (b) in the case of a contractor's request for payment under a contract shall determine whether there is substantial evidence that the request is based on fraud. Upon making such a determination, the agency head may reduce or suspend further payments to the contractor under such contract.

(d) Extent of Reduction or Suspension.—The extent of any reduction or suspension of payments by the head of an agency under subsection (c) on the basis of fraud shall be reasonably commensurate with the anticipated loss to the United States resulting from the fraud.

(e) Written Justification.—A written justification for each decision of the head of an agency whether to reduce or suspend payments under subsection (c) and for each recommendation received by such agency head in connection with such decision shall be prepared and be retained in the files of such agency.

(f) Notice.—The head of an agency shall prescribe procedures to ensure that, before such agency head decides to reduce or suspend payments in the case of a contractor under subsection (c), the contractor is afforded notice of the proposed reduction or suspension and an opportunity to submit matters to the head of the agency in response to such proposed reduction or suspension.

(g) Review.—Not later than 180 days after the date on which the head of an agency reduces or suspends payments to a contractor under subsection (c), the remedy coordination official of such agency shall—

(1) review the determination of fraud on which the reduction or suspension is based; and

(2) transmit a recommendation to the head of such agency whether the suspension or reduction should continue.

(h) Annual Report.—The head of an agency shall prepare for each year a report containing the recommendations made by the remedy coordination official of that agency to reduce or suspend payments under subsection (c), the actions taken on the recommendations and the reasons for such actions, and an assessment of the effects of such actions on the Federal Government. The Secretary of each military department shall transmit the annual report of such department to the Secretary of Defense. Each such report shall be available to any member of Congress upon request.

(i) Restriction on Delegation.—The head of an agency may not delegate responsibilities under this section to any person in a position below level IV of the Executive Schedule.

(j) Inapplicability to Coast Guard.—This section applies to the agencies named in paragraphs (1), (2), (3), (4), and (6) of section 3063 of this title.

(Added and amended Pub. L. 116–283, div. A, title XVIII, §1834(a), (g), Jan. 1, 2021, 134 Stat. 4234, 4237.)

Editorial Notes

References in Text

Level IV of the Executive Schedule, referred to in subsec. (i), is set out in section 5315 of Title 5, Government Organization and Employees.

Codification

The text of subsec. (i) of section 2307 of this title, which was transferred to this section and amended by Pub. L. 116–283, §1834(g), was based on Pub. L. 101–510, div. A, title VIII, §836(a), Nov. 5, 1990, 104 Stat. 1615; Pub. L. 102–25, title VII, §701(j)(2)(A), Apr. 6, 1991, 105 Stat. 116; Pub. L. 102–484, div. A, title X, §1052(24), Oct. 23, 1992, 106 Stat. 2500; Pub. L. 103–355, title II, §2001(a)(7), Oct. 13, 1994, 108 Stat. 3301; Pub. L. 105–85, div. A, title VIII, §802(1), Nov. 18, 1997, 111 Stat. 1831; Pub. L. 106–391, title III, §306, Oct. 30, 2000, 114 Stat. 1592.

Amendments

2021—Pub. L. 116–283, §1834(g)(1), (2), (11), transferred subsec. (i) of section 2307 of this title to this section, struck out subsec. (i) designation and heading "Action in Case of Fraud" at beginning, and redesignated par. (10) as subsec. (a), pars. (1) to (7) as subsecs. (b) to (h), respectively, and pars. (9) and (8) as subsecs. (i) and (j), respectively.

Subsec. (a). Pub. L. 116–283, §1834(g)(3), inserted heading and substituted "this section" for "this subsection".

Subsec. (b). Pub. L. 116–283, §1834(g)(4), inserted heading.

Subsec. (c). Pub. L. 116–283, §1834(g)(5), inserted heading and substituted "subsection (b)" for "paragraph (1)".

Subsec. (d). Pub. L. 116–283, §1834(g)(6), inserted heading and substituted "subsection (c)" for "paragraph (2)".

Subsec. (e). Pub. L. 116–283, §1834(g)(7), inserted heading and substituted "subsection (c)" for "paragraph (2)".

Subsec. (f). Pub. L. 116–283, §1834(g)(8), inserted heading and substituted "subsection (c)" for "paragraph (2)".

Subsec. (g). Pub. L. 116–283, §1834(g)(9), inserted heading, substituted "subsection (c)" for "paragraph (2)" in introductory provisions, and redesignated subpars. (A) and (B) as pars. (1) and (2), respectively.

Subsec. (h). Pub. L. 116–283, §1834(g)(10), inserted heading and substituted "subsection (c)" for "paragraph (2)".

Subsec. (i). Pub. L. 116–283, §1834(g)(12), inserted heading and substituted "this section" for "this subsection".

Subsec. (j). Pub. L. 116–283, §1834(g)(13), inserted heading and substituted "section applies" for "subsection applies" and "section 3063" for "section 2303(a)".

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.

§3807. Vesting of title in the United States

If a contract paid by a method authorized under section 3801(a) of this title provides for title to property to vest in the United States, the title to the property shall vest in accordance with the terms of the contract, regardless of any security interest in the property that is asserted before or after the contract is entered into.

(Added and amended Pub. L. 116–283, div. A, title XVIII, §1834(a), (h), Jan. 1, 2021, 134 Stat. 4234, 4239; Pub. L. 117–81, div. A, title XVII, §1701(b)(13), Dec. 27, 2021, 135 Stat. 2134.)

Editorial Notes

Codification

The text of subsec. (h) of section 2307 of this title, which was transferred to this section and amended by Pub. L. 116–283, §1834(h), was based on Pub. L. 105–85, div. A, title VIII, §802(2), Nov. 18, 1997, 111 Stat. 1831.

Amendments

2021—Pub. L. 116–283, §1834(h), as amended by Pub. L. 117–81, §1701(b)(13), transferred subsec. (h) of section 2307 of this title to this section, struck out subsec. (h) designation and heading "Vesting of Title in the United States" at beginning, and substituted "section 3801(a) of this title" for "subsection (a)(1)".

Statutory Notes and Related Subsidiaries

Effective Date of 2021 Amendment

Amendment by Pub. L. 117–81 applicable as if included in the enactment of title XVIII of Pub. L. 116–283 as enacted, see section 1701(a)(2) of Pub. L. 117–81, set out in a note preceding section 3001 of this title and Effective Date note below.

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.

§3808. Certain Navy contracts

(a) Repair, Maintenance, or Overhaul of Naval Vessels: Rate for Progress Payments.—The Secretary of the Navy shall provide that the rate for progress payments on any contract awarded by the Secretary for repair, maintenance, or overhaul of a naval vessel shall be not less than—

(1) 95 percent, in the case of a firm considered to be a small business; and

(2) 90 percent, in the case of any other firm.

(b) Authority to Advance Funds for Immediate Salvage Operations.—The Secretary of the Navy may advance to private salvage companies such funds as the Secretary considers necessary to provide for the immediate financing of salvage operations. Advances under this subsection shall be made on terms that the Secretary considers adequate for the protection of the United States.

(c) Security for Construction and Conversion of Naval Vessels.—The Secretary of the Navy shall provide, in each contract for construction or conversion of a naval vessel, that, when partial, progress, or other payments are made under such contract, the United States is secured by a lien upon work in progress and on property acquired for performance of the contract on account of all payments so made. The lien is paramount to all other liens.

(Added and amended Pub. L. 116–283, div. A, title XVIII, §1834(a), (i)(1)–(4), as added and amended Pub. L. 117–81, div. A, title XVII, §1701(n)(1)(B), (2), Dec. 27, 2021, 135 Stat. 2145.)

Editorial Notes

Codification

The text of subsec. (g) of section 2307 of this title, which was transferred to this section and amended by Pub. L. 116–283, §1834(i)(1)–(4), as added by Pub. L. 117–81, §1701(n)(2), was based on Pub. L. 103–355, title II, §2001(g), Oct. 13, 1994, 108 Stat. 3302.

Prior Provisions

Prior sections 3811 to 3813 were repealed by Pub. L. 90–235, §3(a)(2), (b)(1), Jan. 2, 1968, 81 Stat. 757, 758.

Section 3811, act Aug. 10, 1956, ch. 1041, 70A Stat. 220, provided for discharge of enlisted members of Army and limitations thereon, and for issuance of discharge certificates. See section 1169 of this title.

Section 3812, act Aug. 1956, ch. 1041, 70A Stat. 220, provided for the discharge of members of the Army enlisted during war or emergency. See section 1172 of this title.

Section 3813, act Aug. 10, 1956, ch. 1041, 70A Stat. 220, provided for dependency discharges for enlisted members of the Army.

A prior section 3814, act Aug. 10, 1956, ch. 1041, 70A Stat. 220, authorized Secretary of the Army to discharge a regular commissioned officer who has less than three years of continuous service as a commissioned officer therein, provided that such officer not be dismissed because of his marriage, unless marriage occurred within one year after date of his original appointment, prior to repeal by Pub. L. 96–513, title II, §214, title VII, §701, Dec. 12, 1980, 94 Stat. 2885, 2955, effective Sept. 15, 1981. See section 630 of this title.

A prior section 3814a, added Pub. L. 93–558, §1, Dec. 30, 1974, 88 Stat. 1793, related to discharge, during a reduction in force, of regular commissioned officers, second lieutenants, first lieutenants, and captains, expired three years after its effective date, Dec. 30, 1974, in accordance with section 2 of Pub. L. 93–558, and was repealed by Pub. L. 103–337, div. A, title XVI, §§1629(a)(2), 1691(b)(1), Oct. 5, 1994, 108 Stat. 2963, 3026, effective Oct. 1, 1996.

Prior sections 3815 and 3816 were repealed by Pub. L. 90–235, §3(a)(2), (b)(1), Jan. 2, 1968, 81 Stat. 757, 758.

Section 3815, act Aug. 10, 1956, ch. 1041, 70A Stat. 220, provided for resignation of regular enlisted members of Army enlisted on a career basis and limitations thereon.

Section 3816, act Aug. 10, 1956, ch. 1041, 70A Stat. 221, provided for minority discharges for regular enlisted members of Army. See section 1170 of this title.

A prior section 3818, acts Aug. 10, 1956, ch. 1041, 70A Stat. 221; Oct. 20, 1978, Pub. L. 95–485, title VIII, §820(g), 92 Stat. 1627, authorized the Secretary of the Army to terminate appointment of a female commissioned officer of Regular Army, other than by dismissal, under regulations prescribed by President, or to terminate the appointment of a female warrant officer or enlistment of a female member of Regular Army by discharge from the Army, prior to repeal by Pub. L. 96–513, title II, §236, title VII, §701, Dec. 12, 1980, 94 Stat. 2887, 2955, effective Sept. 15, 1981.

Prior sections 3819 and 3820 were repealed by Pub. L. 103–337, div. A, title XVI, §§1629(a)(2), 1691(b)(1), Oct. 5, 1994, 108 Stat. 2963, 3026, effective Oct. 1, 1996.

Section 3819, added Pub. L. 85–861, §1(93)(A), Sept. 2, 1958, 72 Stat. 1482; amended Pub. L. 98–525, title V, §528(b), Oct. 19, 1984, 98 Stat. 2526, related to discharge of Army Reserve officers for failure of promotion to first lieutenant. See section 14503 of this title.

Section 3820, acts Aug. 10, 1956, ch. 1041, 70A Stat. 221; Sept. 2, 1958, Pub. L. 85–861, §1(93)(B), 72 Stat. 1482, related to discharge and withdrawal of Federal recognition of officers of Army National Guard of United States absent without leave. See section 14907 of this title.

Amendments

2021—Pub. L. 116–283, §1834(i)(1), as added by Pub. L. 117–81, §1701(n)(2), transferred subsec. (g) of section 2307 of this title to this section, struck out subsec. (g) designation and heading "Certain Navy Contracts" at beginning, and redesignated pars. (1) to (3) as subsecs. (a) to (c), respectively.

Subsec. (a). Pub. L. 116–283, §1834(i)(2), as added by Pub. L. 117–81, §1701(n)(2), inserted heading and redesignated subpars. (A) and (B) as pars. (1) and (2), respectively.

Subsec. (b). Pub. L. 116–283, §1834(i)(3), as added by Pub. L. 117–81, §1701(n)(2), inserted heading and substituted "this subsection" for "this paragraph" in second sentence.

Subsec. (c). Pub. L. 116–283, §1834(i)(4), as added by Pub. L. 117–81, §1701(n)(2), inserted heading.

Statutory Notes and Related Subsidiaries

Effective Date of 2021 Amendment

Amendment by Pub. L. 117–81 applicable as if included in the enactment of title XVIII of Pub. L. 116–283 as enacted, see section 1701(a)(2) of Pub. L. 117–81, set out in a note preceding section 3001 of this title and Effective Date note below.

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.

CHAPTER 279—CONTRACTOR AUDITS AND ACCOUNTING

        

Editorial Notes

Prior Provisions

A prior chapter 279 "CONTRACTOR AUDITS AND ACCOUNTING", as added by Pub. L. 115–232, div. A, title VIII, §801(a), Aug. 13, 2018, 132 Stat. 1828, and consisting of reserved section 3841, was repealed by Pub. L. 116–283, div. A, title XVIII, §1835(a), Jan. 1, 2021, 134 Stat. 4239.

Amendments

2021—Pub. L. 117–81, div. A, title XVII, §1701(i)(7)(A), Dec. 27, 2021, 135 Stat. 2142, amended Pub. L. 116–283, div. A, title XVIII, §1835(a), Jan. 1, 2021, 134 Stat. 4239, which added this analysis, by substituting "[Reserved]" for "Contractor internal audit reports: Department of Defense access to, use of, and safeguards and protections for" in item 3843, for "Contractor business systems" in item 3844, and for "Defense Contract Audit Agency: legal resources and expertise" in item 3846.

Statutory Notes and Related Subsidiaries

Contractor Business Systems

Pub. L. 115–232, div. A, title VIII, §824(b), Aug. 13, 2018, 132 Stat. 1856, provided that: "Not later than 120 days after the date of the enactment of this Act [Aug. 13, 2018], the Secretary of Defense shall revise the Defense Federal Acquisition Regulation Supplement to conform with the amendments to section 893 of the Ike Skelton National Defense Authorization Act for Fiscal Year 2011 (Public Law 111–383; 10 U.S.C. 2302 note [now 10 U.S.C. 3841 note prec.]) made by this section."

Pub. L. 111–383, div. A, title VIII, §893, Jan. 7, 2011, 124 Stat. 4311, as amended by Pub. L. 112–81, div. A, title VIII, §816, Dec. 31, 2011, 125 Stat. 1493; Pub. L. 113–291, div. A, title X, §1071(b)(1)(C), Dec. 19, 2014, 128 Stat. 3505; Pub. L. 114–328, div. A, title VIII, §893, Dec. 23, 2016, 130 Stat. 2324; Pub. L. 115–91, div. A, title X, §1081(d)(8), Dec. 12, 2017, 131 Stat. 1600; Pub. L. 115–232, div. A, title VIII, §824(a), Aug. 13, 2018, 132 Stat. 1856; Pub. L. 116–283, div. A, title VIII, §806, Jan. 1, 2021, 134 Stat. 3742, provided that:

"(a) Improvement Program.—The Secretary of Defense shall develop and initiate a program for the improvement of contractor business systems to ensure that such systems provide timely, reliable information for the management of Department of Defense programs by the contractor and by the Department.

"(b) Approval or Disapproval of Business Systems.—The program developed pursuant to subsection (a) shall—

"(1) include clear and specific business system requirements that are identified and made publicly available for each type of contractor business system covered by the program;

"(2) establish a process for reviewing contractor business systems and identifying material weaknesses in such systems;

"(3) identify officials of the Department of Defense who are responsible for the approval or disapproval of contractor business systems;

"(4) provide for the approval of any contractor business system that does not have a material weakness; and

"(5) provide for—

"(A) the disapproval of any contractor business system that has a material weakness; and

"(B) reduced reliance on, and enhanced scrutiny of, data provided by a contractor business system that has been disapproved.

"(c) Review by Third-party Independent Auditors.—The review process for contractor business systems pursuant to subsection (b)(2) shall—

"(1) if a registered public accounting firm attests to the internal control assessment of a contractor, pursuant to section 404(b) of the Sarbanes-Oxley Act of 2002 (15 U.S.C. 7262(b)), allow the contractor, subject to paragraph (3), to submit certified documentation from such registered public accounting firm that the contractor business systems of the contractor meet the business system requirements referred to in subsection (b)(1) and to thereby eliminate the need for further review of the contractor business systems by the Secretary of Defense;

"(2) limit the review, subject to paragraph (3), of the contractor business systems of a contractor that is not a covered contractor to confirming that the contractor uses the same contractor business system for its Government and commercial work and that the outputs of the contractor business system based on statistical sampling are reasonable; and

"(3) allow a milestone decision authority to require a review of a contractor business system of a contractor that submits documentation pursuant to paragraph (1) or that is not a covered contractor after determining in writing that such a review is necessary to appropriately manage contractual risk.

"(d) Remedial Actions.—The program developed pursuant to subsection (a) shall provide the following:

"(1) In the event a contractor business system is disapproved pursuant to subsection (b)(5), appropriate officials of the Department of Defense will be available to work with the contractor to develop a corrective action plan defining specific actions to be taken to address the material weaknesses identified in the system and a schedule for the implementation of such actions.

"(2) An appropriate official of the Department of Defense may withhold up to 10 percent of progress payments, performance-based payments, and interim payments under covered contracts from a covered contractor, as needed to protect the interests of the Department and ensure compliance, if one or more of the contractor business systems of the contractor has been disapproved pursuant to subsection (b)(5) and has not subsequently received approval.

"(3) The amount of funds to be withheld under paragraph (2) shall be reduced if a contractor adopts an effective corrective action plan pursuant to paragraph (1) and is effectively implementing such plan.

"(e) Guidance and Training.—The program developed pursuant to subsection (a) shall provide guidance and training to appropriate government officials on the data that is produced by contractor business systems and the manner in which such data should be used to effectively manage Department of Defense programs.

"(f) Rule of Construction.—Nothing in this section shall be construed to prohibit an official of the Department of Defense from reviewing, approving, or disapproving a contractor business system pursuant to any applicable law or regulation in force as of the date of the enactment of this Act during the period between the date of the enactment of this Act and the date on which the Secretary implements the requirements of this section with respect to such system.

"(g) Definitions.—In this section:

"(1) The term 'contractor business system' means an accounting system, estimating system, purchasing system, earned value management system, material management and accounting system, or property management system of a contractor.

"(2) The term 'covered contractor' means a contractor that has covered contracts with the United States Government accounting for greater than 1 percent of its total gross revenue, except that the term does not include any contractor that is exempt, under section 1502 of title 41, United States Code, or regulations implementing that section, from using full cost accounting standards established in that section.

"(3) The term 'covered contract' means a contract that is subject to the cost accounting standards promulgated pursuant to section 1502 of title 41, United States Code, that could be affected if the data produced by a contractor business system has a material weakness.

"(4) The term 'material weakness' means a deficiency or combination of deficiencies in the internal control over information in contractor business systems, such that there is a reasonable possibility that a material misstatement of such information will not be prevented, or detected and corrected, on a timely basis. For purposes of this paragraph, a reasonable possibility exists when the likelihood of an event occurring—

"(A) is probable; or

"(B) is more than remote but less than likely.

"(5) The term 'approved purchasing system' has the meaning given the term in section 44.101 of the Federal Acquisition Regulation (or any similar regulation).

"(h) Defense Contract Audit Agency Legal Resources and Expertise.—

"(1) Requirement.—The Secretary of Defense shall ensure that—

"(A) the Defense Contract Audit Agency has sufficient legal resources and expertise to conduct its work in compliance with applicable Department of Defense policies and procedures; and

"(B) such resources and expertise are provided in a manner that is consistent with the audit independence of the Defense Contract Audit Agency.

"(2) Report.—Not later than 180 days after the date of the enactment of this Act, the Secretary shall submit to the Committees on Armed Services of the Senate and the House of Representatives a report on the steps taken to comply with the requirements of this subsection.

"(i) Consent to Subcontract.—If the contractor on a Department of Defense contract requiring a contracting officer's written consent prior to the contractor entering into a subcontract has an approved purchasing system, the contracting officer may not withhold such consent without the written approval of the program manager."

[Pub. L. 115–91, div. A, title X, §1081(d), Dec. 12, 2017, 131 Stat. 1599, provided that the amendment made by section 1081(d)(8) to section 893(c) of Pub. L. 114–328 (which amended section 893 of Pub. L. 111–383, set out above) is effective as of Dec. 23, 2016, and as if included in Pub. L. 114–328 as enacted.]

§3841. Examination of records of contractor

(a) Records Defined.—In this section, the term "records" includes books, documents, accounting procedures and practices, and other data, regardless of type and regardless of whether such items are in written form, in the form of computer data, or in any other form.

(b) Agency Authority.—

(1) The head of an agency, acting through an authorized representative, is authorized to inspect the plant and audit the records of—

(A) a contractor performing a cost-reimbursement, incentive, time-and-materials, labor-hour, or price-redeterminable contract, or any combination of such contracts, made by that agency under a chapter 137 legacy provision; and

(B) a subcontractor performing any cost-reimbursement, incentive, time-and-materials, labor-hour, or price-redeterminable subcontract or any combination of such subcontracts under a contract referred to in subparagraph (A).

(2) The head of an agency, acting through an authorized representative, is authorized, for the purpose of evaluating the accuracy, completeness, and currency of certified cost or pricing data required to be submitted pursuant to chapter 271 of this title with respect to a contract or subcontract, to examine all records of the contractor or subcontractor related to—

(A) the proposal for the contract or subcontract;

(B) the discussions conducted on the proposal;

(C) pricing of the contract or subcontract; or

(D) performance of the contract or subcontract.

(c) DCAA Subpoena Authority.—

(1) Authority to require the production of records.—The Director of the Defense Contract Audit Agency (or any successor agency) may require by subpoena the production of any records of a contractor that the Secretary of Defense is authorized to audit or examine under subsection (b).

(2) Enforcement of subpoena.—Any such subpoena, in the case of contumacy or refusal to obey, shall be enforceable by order of an appropriate United States district court.

(3) Authority not delegable.—The authority provided by paragraph (1) may not be redelegated.

(d) Comptroller General Authority.—

(1) In general.—Except as provided in paragraph (2), each contract awarded after using procedures other than sealed bid procedures shall provide that the Comptroller General and his representatives are authorized to examine any records of the contractor, or any of its subcontractors, that directly pertain to, and involve transactions relating to, the contract or subcontract and to interview any current employee regarding such transactions.

(2) Exception for foreign contractor or subcontractor.—Paragraph (1) does not apply to a contract or subcontract with a foreign contractor or foreign subcontractor if the head of the agency concerned determines, with the concurrence of the Comptroller General or his designee, that the application of that paragraph to the contract or subcontract would not be in the public interest. However, the concurrence of the Comptroller General or his designee is not required—

(A) where the contractor or subcontractor is a foreign government or agency thereof or is precluded by the laws of the country involved from making its records available for examination; and

(B) where the head of the agency determines, after taking into account the price and availability of the property and services from United States sources, that the public interest would be best served by not applying paragraph (1).

(3) Additional records not required.—Paragraph (1) may not be construed to require a contractor or subcontractor to create or maintain any record that the contractor or subcontractor does not maintain in the ordinary course of business or pursuant to another provision of law.

(e) Limitation on Audits Relating to Indirect Costs.—The head of an agency may not perform an audit of indirect costs under a contract, subcontract, or modification before or after entering into the contract, subcontract, or modification in any case in which the contracting officer determines that the objectives of the audit can reasonably be met by accepting the results of an audit that was conducted by any other department or agency of the Federal Government within one year preceding the date of the contracting officer's determination.

(f) Limitation.—The authority of the head of an agency under subsection (b), and the authority of the Comptroller General under subsection (d), with respect to a contract or subcontract shall expire three years after final payment under such contract or subcontract.

(g) Inapplicability to Certain Contracts.—This section does not apply to the following contracts:

(1) Contracts for utility services at rates not exceeding those established to apply uniformly to the public, plus any applicable reasonable connection charge.

(2) A contract or subcontract that is for an amount not greater than the simplified acquisition threshold.

(h) Forms of Original Record Storage.—Nothing in this section shall be construed to preclude a contractor from duplicating or storing original records in electronic form.

(i) Use of Images of Original Records.—The head of an agency shall not require a contractor or subcontractor to provide original records in an audit carried out pursuant to this section if the contractor or subcontractor provides photographic or electronic images of the original records and meets the following requirements:

(1) The contractor or subcontractor has established procedures to ensure that the imaging process preserves the integrity, reliability, and security of the original records.

(2) The contractor or subcontractor maintains an effective indexing system to permit timely and convenient access to the imaged records.

(3) The contractor or subcontractor retains the original records for a minimum of one year after imaging to permit periodic validation of the imaging systems.

(Added and amended Pub. L. 116–283, div. A, title XVIII, §1835(a), (b), Jan. 1, 2021, 134 Stat. 4239.)

Editorial Notes

Codification

The text of subsecs. (a), (e), (g), (h), and (i) of section 2313 of this title, which were transferred to this section, redesignated as subsecs. (b), (f), (h), (i), and (j), respectively, and amended by Pub. L. 116–283, §1835(b)(1)–(3), (6), was based on Pub. L. 103–355, title II, §2201(a)(1), Oct. 13, 1994, 108 Stat. 3316, which amended section 2313 generally.

The text of subsec. (b) of section 2313 of this title, which was transferred to this section, redesignated as subsec. (c), and amended by Pub. L. 116–283, §1835(b)(1), (4), was based on Pub. L. 103–355, title II, §2201(a)(1), Oct. 13, 1994, 108 Stat. 3316; Pub. L. 104–106, div. A, title XV, §1502(a)(1), Feb. 10, 1996, 110 Stat. 502; Pub. L. 106–65, div. A, title X, §1032(a)(2), Oct. 5, 1999, 113 Stat. 751.

The text of subsec. (c) of section 2313 of this title, which was transferred to this section, redesignated as subsec. (d), and amended by Pub. L. 116–283, §1835(b)(1), (5), was based on Pub. L. 103–355, title II, §2201(a)(1), Oct. 13, 1994, 108 Stat. 3317; Pub. L. 110–417, [div. A], title VIII, §871(b), Oct. 14, 2008, 122 Stat. 4555.

The text of subsec. (d) of section 2313 of this title, which was transferred to this section and redesignated as subsec. (e) by Pub. L. 116–283, §1835(b)(1), was based on Pub. L. 104–201, div. A, title VIII, §808(a), Sept. 23, 1996, 110 Stat. 2607, which amended subsec. (d) generally.

The text of subsec. (f) of section 2313 of this title, which was transferred to this section and redesignated as subsec. (e) by Pub. L. 116–283, §1835(b)(1), was based on Pub. L. 103–355, title II, §2201(a)(1), title IV, §4102(c), Oct. 13, 1994, 108 Stat. 3317, 3340.

Prior Provisions

A prior section 3841, added Pub. L. 85–861, §1(94), Sept. 2, 1958, 72 Stat. 1483, related to separation or transfer to retired reserve of reserve nurses and medical specialists at age 50 if in a reserve grade below major, prior to repeal by Pub. L. 86–559, §1(22), June 30, 1960, 74 Stat. 271.

Amendments

2021—Subsec. (a). Pub. L. 116–283, §1835(b)(2), redesignated subsec. (i) of section 2313 of this title as subsec. (a) of this section.

Subsec. (b). Pub. L. 116–283, §1835(b)(1), (3), redesignated subsec. (a) of section 2313 of this title as subsec. (b) of this section, realigned margins of pars. (1) and (2), and substituted "made by that agency under a chapter 137 legacy provision" for "made by that agency under this chapter" in par. (1)(A) and "chapter 271" for "section 2306a" in par. (2).

Subsec. (c). Pub. L. 116–283, §1835(b)(1), (4), redesignated subsec. (b) of section 2313 of this title as subsec. (c) of this section, inserted heading and substituted "subsection (b)" for "subsection (a)" in par. (1), and inserted headings and realigned margins of pars. (2) and (3).

Subsec. (d). Pub. L. 116–283, §1835(b)(1), (5), redesignated subsec. (c) of section 2313 of this title as subsec. (d) of this section and inserted headings and realigned margins of pars. (1) to (3).

Subsec. (e). Pub. L. 116–283, §1835(b)(1), redesignated subsec. (d) of section 2313 of this title as subsec. (e) of this section.

Subsec. (f). Pub. L. 116–283, §1835(b)(1), (6), redesignated subsec. (e) of section 2313 of this title as subsec. (f) of this section and substituted "subsection (b)" for "subsection (a)" and "subsection (d)" for "subsection (c)".

Subsecs. (g) to (i). Pub. L. 116–283, §1835(b)(1), redesignated subsecs. (f) to (h) of section 2313 of this title as subsecs. (g) to (i), respectively, of this section.

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.

Exception From Records Examination Requirement

Requirements under subsecs. (b)(2)(A)–(C) and (c) of this section (former subsecs. (a)(2)(A)–(C) and (b) of section 2313 of this title) not applicable to certain contracts valued at less than $7,500,000 awarded to small business or nontraditional defense contractors, with certain exceptions, see section 873(b) of Pub. L. 114–92, set out in a Pilot Program for Streamlining Awards for Innovative Technology Projects note under section 3702 of this title.

Department of Defense Access to, Use of, and Safeguards and Protections for Contractor Internal Audit Reports

Pub. L. 112–239, div. A, title VIII, §832, Jan. 2, 2013, 126 Stat. 1844, provided that:

"(a) Revised Guidance Required.—Not later than 180 days after the date of the enactment of this Act [Jan. 2, 2013], the Director of the Defense Contract Audit Agency shall revise guidance on access to defense contractor internal audit reports (including the Contract Audit Manual) to incorporate the requirements of this section.

"(b) Documentation Requirements.—The revised guidance shall ensure that requests for access to defense contractor internal audit reports are appropriately documented. The required documentation shall include, at a minimum, the following:

"(1) Written determination that access to such reports is necessary to complete required evaluations of contractor business systems.

"(2) A copy of any request from the Defense Contract Audit Agency to a contractor for access to such reports.

"(3) A record of response received from the contractor, including the contractor's rationale or justification if access to requested reports was not granted.

"(b) [sic] Safeguards and Protections.—The revised guidance shall include appropriate safeguards and protections to ensure that contractor internal audit reports cannot be used by the Defense Contract Audit Agency for any purpose other than evaluating and testing the efficacy of contractor internal controls and the reliability of associated contractor business systems.

"(c) Risk-based Auditing.—A determination by the Defense Contract Audit Agency that a contractor has a sound system of internal controls shall provide the basis for increased reliance on contractor business systems or a reduced level of testing with regard to specific audits, as appropriate. Internal audit reports provided by a contractor pursuant to this section may be considered in determining whether or not a contractor has a sound system of internal controls, but shall not be the sole basis for such a determination.

"(d) Comptroller General Review.—Not later than one year after the date of the enactment of this Act, the Comptroller General of the United States shall initiate a review of the documentation required by subsection (a). Not later than 90 days after completion of the review, the Comptroller General shall submit to the congressional defense committees [Committees on Armed Services and Appropriations of the Senate and the House of Representatives] a report on the results of the review, with findings and recommendations for improving the audit processes of the Defense Contract Audit Agency."

Executive Documents

Exemption of Functions

Functions with respect to purchases authorized to be made outside limits of United States or District of Columbia under Foreign Assistance Act of 1961, as amended, as exempt, see Ex. Ord. No. 11223, May 12, 1965, 30 F.R. 6635, set out as a note under section 2393 of Title 22, Foreign Relations and Intercourse.

Foreign Contractors

Secretaries of Defense, Army, Navy, or Air Force, or their designees, to determine, prior to exercising authority provided in amendment of this section by Pub. L. 89–607 to exempt certain contracts with foreign contractors from requirement of an examination-of-records clause, that all reasonable efforts have been made to include such examination-of-records clause, as required by par. (11) of Part I of Ex. Ord. No. 10789, and that alternate sources of supply are not reasonably available, see par. (11) of Part I of Ex. Ord. No. 10789, Nov. 14, 1958, 23 F.R. 8897, as amended, set out as a note under section 1431 of Title 50, War and National Defense.

§3842. Performance of incurred cost audits

(a) Compliance With Standards of Risk and Materiality.—Not later than October 1, 2020, the Secretary of Defense shall comply with commercially accepted standards of risk and materiality in the performance of each incurred cost audit of costs associated with a contract of the Department of Defense.

(b) Conditions for the Use of Qualified Auditors to Perform Incurred Cost Audits.—(1) To support the need of the Department of Defense for timely and effective incurred cost audits, and to ensure that the Defense Contract Audit Agency is able to allocate resources to higher-risk and more complex audits, the Secretary of Defense shall use qualified private auditors to perform a sufficient number of incurred cost audits of contracts of the Department of Defense to—

(A) eliminate, by October 1, 2020, any backlog of incurred cost audits of the Defense Contract Audit Agency;

(B) ensure that incurred cost audits are completed not later than one year after the date of receipt of a qualified incurred cost submission;

(C) maintain an appropriate mix of Government and private sector capacity to meet the current and future needs of the Department of Defense for the performance of incurred cost audits;

(D) ensure that qualified private auditors perform incurred cost audits on an ongoing basis to improve the efficiency and effectiveness of the performance of incurred cost audits; and

(E) limit multiyear auditing to ensure that multiyear auditing is conducted only—

(i) to address outstanding incurred cost audits for which a qualified incurred cost submission was submitted to the Defense Contract Audit Agency more than 12 months before the date of the enactment of this section; or

(ii) when the contractor being audited submits a written request, including a justification for the use of multiyear auditing, to the Under Secretary of Defense (Comptroller).

(2) The Secretary of Defense shall consult with Federal agencies that have awarded contracts or task orders to qualified private auditors to ensure that the Department of Defense is using, as appropriate, best practices relating to contracting with qualified private auditors.

(3) The Secretary of Defense shall ensure that a qualified private auditor performing an incurred cost audit under this section—

(A) has no conflict of interest in performing such an audit, as defined by generally accepted government auditing standards;

(B) possesses the necessary independence to perform such an audit, as defined by generally accepted government auditing standards;

(C) signs a nondisclosure agreement, as appropriate, to protect proprietary or nonpublic data;

(D) accesses and uses proprietary or nonpublic data furnished to the qualified private auditor only for the purposes stated in the contract;

(E) takes all reasonable steps to protect proprietary and nonpublic data furnished during the audit; and

(F) does not use proprietary or nonpublic data provided to the qualified private auditor under the authority of this section to compete for Government or nongovernment contracts.

(c) Procedures for the Use of Qualified Private Auditors.—(1) Not later than October 1, 2018, the Secretary of Defense shall submit to the congressional defense committees a plan to implement the requirements of subsection (b). Such plan shall include, at a minimum—

(A) a description of the incurred cost audits that the Secretary determines are appropriate to be conducted by qualified private auditors, including the approximate number and dollar value of such incurred cost audits;

(B) an estimate of the number and dollar value of incurred cost audits to be conducted by qualified private auditors for each of the fiscal years 2019 through 2025 necessary to meet the requirements of subsection (b); and

(C) all other elements of an acquisition plan as required by the Federal Acquisition Regulation.

(2) Not later than April 1, 2019, the Secretary of Defense or a Federal department or agency authorized by the Secretary shall award a contract or issue a task order under an existing contract to two or more qualified private auditors to perform incurred cost audits of costs associated with contracts of the Department of Defense. The Defense Contract Management Agency or a contract administration office of a military department shall use a contract or a task order awarded or issued pursuant to this paragraph for the performance of an incurred cost audit, if doing so will assist the Secretary in meeting the requirements in subsection (b).

(3) To improve the quality of incurred cost audits and reduce duplication of performance of such audits, the Secretary of Defense may provide a qualified private auditor with information on past or ongoing audit results or other relevant information on the entities the qualified private auditor is auditing.

(4) The Secretary of Defense shall consider the results of an incurred cost audit performed under this section without regard to whether the Defense Contract Audit Agency or a qualified private auditor performed the audit.

(5) The contracting officer for a contract that is the subject of an incurred cost audit shall have the sole discretion to determine what action should be taken based on an audit finding on direct costs of the contract.

(d) Qualified Private Auditor Requirements.—(1) A qualified private auditor awarded a contract or issued a task order under subsection (c)(2) shall conduct an incurred cost audit in accordance with the generally accepted government auditing standards.

(2) A qualified private auditor awarded a contract or issued a task order under subsection (c)(2) shall develop and maintain complete and accurate working papers on each incurred cost audit. All working papers and reports on the incurred cost audit prepared by such qualified private auditor shall be the property of the Department of Defense, except that the qualified private auditor may retain a complete copy of all working papers to support such reports made pursuant to this section.

(3) A breach of contract by a qualified private auditor with respect to use of proprietary or nonpublic data may subject the qualified private auditor to—

(A) criminal, civil, administrative, and contractual actions for penalties, damages, and other appropriate remedies by the United States; and

(B) civil actions for damages and other appropriate remedies by the contractor or subcontractor whose data are affected by the breach.

(e) Peer Review.—(1) Effective October 1, 2022, the Defense Contract Audit Agency may issue unqualified audit findings for an incurred cost audit only if the Defense Contract Audit Agency is peer reviewed by a commercial auditor and passes such peer review. Such peer review shall be conducted in accordance with the peer review requirements of generally accepted government auditing standards, including the requirements related to frequency of peer reviews, and shall be deemed to meet the requirements of the Defense Contract Audit Agency for a peer review under such standards.

(2) Not later than October 1, 2019, the Secretary of Defense shall provide to the Committees on Armed Services of the Senate and the House of Representatives an update on the process of securing a commercial auditor to perform the peer review referred to in paragraph (1).

(f) Numeric Materiality Standards for Incurred Cost Audits.—(1) Not later than October 1, 2020, the Department of Defense shall implement numeric materiality standards for incurred cost audits to be used by auditors that are consistent with commercially accepted standards of risk and materiality.

(2) Not later than October 1, 2019, the Secretary of Defense shall submit to the congressional defense committees a report containing proposed numeric materiality standards required under paragraph (1). In developing such standards, the Secretary shall consult with commercial auditors that conduct incurred cost audits, the advisory panel authorized under section 809 of the National Defense Authorization Act for Fiscal Year 2016 (Public Law 114–92; 129 Stat. 889), and other governmental and nongovernmental entities with relevant expertise.

(g) Timeliness of Incurred Cost Audits.—(1) The Secretary of Defense shall ensure that all incurred cost audits performed by qualified private auditors or the Defense Contract Audit Agency are performed in a timely manner.

(2) The Secretary of Defense shall notify a contractor of the Department of Defense within 60 days after receipt of an incurred cost submission from the contractor whether the submission is a qualified incurred cost submission.

(3) With respect to qualified incurred cost submissions received on or after the date of the enactment of this section, audit findings shall be issued for an incurred cost audit not later than one year after the date of receipt of such qualified incurred cost submission.

(4) Not later than October 1, 2020, and subject to paragraph (5), if audit findings are not issued within one year after the date of receipt of a qualified incurred cost submission, the audit shall be considered to be complete and no additional audit work shall be conducted.

(5) The Under Secretary of Defense (Comptroller) may waive the requirements of paragraph (4) on a case-by-case basis if the Director of the Defense Contract Audit Agency submits a written request. The Director of the Defense Contract Audit Agency shall include in the report required under section 3847 of this title the total number of waivers issued and the reasons for issuing each such waiver.

(h) Review of Audit Performance.—Not later than April 1, 2025, the Comptroller General of the United States shall submit to the congressional defense committees a report that evaluates for the period beginning on October 1, 2019, and ending on August 31, 2023—

(1) the timeliness, individual cost, and quality of incurred cost audits, set forth separately by incurred cost audits performed by the Defense Contract Audit Agency and by qualified private auditors;

(2) the cost to contractors of the Department of Defense for incurred cost audits, set forth separately by incurred cost audits performed by the Defense Contract Audit Agency and by qualified private auditors;

(3) the effect, if any, on other types of audits conducted by the Defense Contract Audit Agency that results from incurred cost audits conducted by qualified private auditors; and

(4) the capability and capacity of qualified private auditors to conduct incurred cost audits for the Department of Defense.

(i) Definitions.—In this section:

(1) The term "commercial auditor" means a private entity engaged in the business of performing audits.

(2) The term "incurred cost audit" means an audit of charges to the Government by a contractor under a flexibly priced contract.

(3) The term "flexibly priced contract" has the meaning given the term "flexibly-priced contracts and subcontracts" in part 30 of the Federal Acquisition Regulation (section 30.001 of title 48, Code of Federal Regulations).

(4) The term "generally accepted government auditing standards" means the generally accepted government auditing standards of the Comptroller General of the United States.

(5) The term "numeric materiality standard" means a dollar amount of misstatements, including omissions, contained in an incurred cost audit that would be material if the misstatements, individually or in the aggregate, could reasonably be expected to influence the economic decisions of the Government made on the basis of the incurred cost audit.

(6) The term "qualified incurred cost submission" means a submission by a contractor of costs incurred under a flexibly priced contract that has been qualified by the Department of Defense as sufficient to conduct an incurred cost audit.

(7) The term "qualified private auditor" means a commercial auditor—

(A) that performs audits in accordance with generally accepted government auditing standards; and

(B) that has received a passing peer review rating, as defined by generally accepted government auditing standards.

(Added Pub. L. 115–91, div. A, title VIII, §803(a), Dec. 12, 2017, 131 Stat. 1451, §2313b; amended Pub. L. 115–232, div. A, title X, §1081(a)(19), Aug. 13, 2018, 132 Stat. 1984; Pub. L. 116–92, div. A, title XVII, §1731(a)(41), Dec. 20, 2019, 133 Stat. 1814; renumbered §3842 and amended Pub. L. 116–283, div. A, title XVIII, §1835(c), (d)(1), Jan. 1, 2021, 134 Stat. 4240.)

Editorial Notes

References in Text

The date of the enactment of this section, referred to in subsecs. (b)(1)(E)(i) and (g)(3), is the date of enactment of Pub. L. 115–91, which was approved Dec. 12, 2017.

Section 809 of the National Defense Authorization Act for Fiscal Year 2016, referred to in subsec. (f)(2), is section 809 of Pub. L. 114–92, div. A, title VIII, Nov. 25, 2015, 129 Stat. 889, which relates to the establishment of an advisory panel on streamlining acquisition regulations and is not classified to the Code.

Prior Provisions

A prior section 3842, added Pub. L. 85–861, §1(94), Sept. 2, 1958, 72 Stat. 1483, related to separation or transfer to Retired Reserve of Reserve nurses and medical specialists at age 55 if in a reserve grade above captain, prior to repeal by Pub. L. 86–559, §1(22), June 30, 1960, 74 Stat. 271.

Amendments

2021—Pub. L. 116–283, §1835(c), renumbered section 2313b of this title as this section.

Subsec. (g)(5). Pub. L. 116–283, §1835(d)(1), substituted "section 3847" for "section 2313a".

2019—Subsec. (d)(1), (2). Pub. L. 116–92 substituted "a task order" for "an task order".

2018—Subsec. (b)(1)(E). Pub. L. 115–232 redesignated cls. (A) and (B) as (i) and (ii), respectively.

Statutory Notes and Related Subsidiaries

Effective Date of 2021 Amendment

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 a note preceding section 3001 of this title.

§3843. [Reserved]

(Added Pub. L. 116–283, div. A, title XVIII, §1835(e)(1), Jan. 1, 2021, 134 Stat. 4241; amended Pub. L. 117–81, div. A, title XVII, §1701(i)(7)(B)(i), Dec. 27, 2021, 135 Stat. 2142.)

Editorial Notes

Prior Provisions

A prior section 3843, added Pub. L. 85–861, §1(94), Sept. 2, 1958, 72 Stat. 1483; amended Pub. L. 86–559, §1(23), June 30, 1960, 74 Stat. 271; Pub. L. 99–145, title XIII, §1303(a)(20)(A), Nov. 8, 1985, 99 Stat. 739, related to transfer or discharge of reserve commissioned officers below grade of major general, prior to repeal by Pub. L. 103–337, div. A, title XVI, §§1629(a)(3), 1691(b)(1), Oct. 5, 1994, 108 Stat. 2963, 3026, effective Oct. 1, 1996. See sections 14509 and 14510 of this title.

Amendments

2021—Pub. L. 117–81, §1701(i)(7)(B)(i), amended Pub. L. 116–283, §1835(e)(1), which enacted this section, by adding section 3843 designation and catchline "[Reserved]" and striking out former section 3843 designation and catchline "Contractor internal audit reports: Department of Defense access to, use of, and safeguards and protections for".

Statutory Notes and Related Subsidiaries

Effective Date of 2021 Amendment

Amendment made to Pub. L. 116–283 by Pub. L. 117–81, resulting in omission of this section, applicable as if included in the enactment of title XVIII of Pub. L. 116–283 as enacted, see section 1701(a)(2) of Pub. L. 117–81, set out in a note preceding section 3001 of this title and Effective Date note below.

Effective Date

Section 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.

§3844. [Reserved]

(Added Pub. L. 116–283, div. A, title XVIII, §1835(e)(1), Jan. 1, 2021, 134 Stat. 4241; amended Pub. L. 117–81, div. A, title XVII, §1701(i)(7)(B)(i), Dec. 27, 2021, 135 Stat. 2142.)

Editorial Notes

Prior Provisions

A prior section 3844, added Pub. L. 85–861, §1(94), Sept. 2, 1958, 72 Stat. 1484; amended Pub. L. 86–559, §1(24), June 30, 1960, 74 Stat. 271, related to transfer or discharge of certain reserve major generals and brigadier generals who are 62 years old, prior to repeal by Pub. L. 103–337, div. A, title XVI, §§1629(a)(3), 1691(b)(1), Oct. 5, 1994, 108 Stat. 2963, 3026, effective Oct. 1, 1996. See section 14511 of this title.

Amendments

2021—Pub. L. 117–81, §1701(i)(7)(B)(i), amended Pub. L. 116–283, §1835(e)(1), which enacted this section, by adding section 3844 designation and catchline "[Reserved]" and striking out former section 3844 designation and catchline "Contractor business systems".

Statutory Notes and Related Subsidiaries

Effective Date of 2021 Amendment

Amendment made to Pub. L. 116–283 by Pub. L. 117–81, resulting in omission of this section, applicable as if included in the enactment of title XVIII of Pub. L. 116–283 as enacted, see section 1701(a)(2) of Pub. L. 117–81, set out in a note preceding section 3001 of this title and Effective Date note below.

Effective Date

Section 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.

§3845. Contractor inventory accounting systems: standards

(a) The Secretary of Defense shall prescribe in regulations—

(1) standards for inventory accounting systems used by contractors under contract with the Department of Defense; and

(2) appropriate enforcement requirements with respect to such standards.

(b) The regulations prescribed pursuant to subsection (a) shall not apply to a contract that is for an amount not greater than the simplified acquisition threshold.

(c) The regulations prescribed pursuant to subsection (a) shall not apply to a contract for the purchase of commercial products.

(Added Pub. L. 100–456, div. A, title VIII, §834(a)(1), Sept. 29, 1988, 102 Stat. 2024, §2410b; amended Pub. L. 103–355, title IV, §4102(h), title VIII, §8105(i), Oct. 13, 1994, 108 Stat. 3341, 3393; Pub. L. 104–106, div. D, title XLIII, §4301(a)(1), Feb. 10, 1996, 110 Stat. 656; Pub. L. 104–201, div. A, title X, §1074(b)(3), Sept. 23, 1996, 110 Stat. 2660; Pub. L. 111–350, §5(b)(28), Jan. 4, 2011, 124 Stat. 3845; Pub. L. 115–232, div. A, title VIII, §836(e)(6), Aug. 13, 2018, 132 Stat. 1870; renumbered §3845 and amended Pub. L. 116–283, div. A, title XVIII, §1835(c), (d)(2), Jan. 1, 2021, 134 Stat. 4240.)

Editorial Notes

Prior Provisions

A prior section 3845, added Pub. L. 85–861, §1(94), Sept. 2, 1958, 72 Stat. 1484; amended Pub. L. 100–456, div. A, title XII, §1234(a)(1), Sept. 29, 1988, 102 Stat. 2059, related to transfer or discharge of certain officers of Army National Guard of United States who are 64 years of age, prior to repeal Pub. L. 103–337, div. A, title XVI, §§1629(a)(3), 1691(b)(1), Oct. 5, 1994, 108 Stat. 2963, 3026, effective Oct. 1, 1996. See section 14512(a) of this title.

Amendments

2021—Pub. L. 116–283, §1835(c), renumbered section 2410b of this title as this section.

Subsec. (c). Pub. L. 116–283, §1835(d)(2), struck out "(as defined in section 103 of title 41)" after "commercial products".

2018—Subsec. (c). Pub. L. 115–232 substituted "commercial products" for "commercial items".

2011—Subsec. (c). Pub. L. 111–350 substituted "section 103 of title 41)" for "section 4(12) of the Office of Federal Procurement Policy Act (41 U.S.C. 403(12)))".

1996—Subsec. (a)(2). Pub. L. 104–106, as amended by Pub. L. 104–201, struck out "certification and" after "appropriate".

1994—Subsecs. (a), (b). Pub. L. 103–355, §4102(h), designated existing provisions as subsec. (a) and added subsec. (b).

Subsec. (c). Pub. L. 103–355, §8105(i), added subsec. (c).

Statutory Notes and Related Subsidiaries

Effective Date of 2021 Amendment

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 a note preceding section 3001 of this title.

Effective Date of 2018 Amendment

Amendment 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.

Effective Date of 1996 Amendment

For effective date and applicability of amendment by Pub. L. 104–106, see section 4401 of Pub. L. 104–106, set out as a note under section 2220 of this title.

Effective Date of 1994 Amendment

For effective date and applicability of amendment by Pub. L. 103–355, see section 10001 of Pub. L. 103–355, set out as a note under section 8752 of this title.

Regulations

Pub. L. 100–456, div. A, title VIII, §834(b), Sept. 29, 1988, 102 Stat. 2025, provided that:

"(1) The Secretary of Defense shall prescribe the regulations required by paragraph (1) of section 2410b of title 10, United States Code [now 10 U.S.C. 3845(a)(1)], as added by subsection (a), not later than 30 days after the date of the enactment of this Act [Sept. 29, 1988].

"(2) The Secretary of Defense shall prescribe the regulations required by paragraph (2) of section 2410b of title 10, United States Code [now 10 U.S.C. 3845(a)(2)], as added by subsection (a), not later than 180 days after the date of the enactment of this Act."

§3846. [Reserved]

(Added Pub. L. 116–283, div. A, title XVIII, §1835(e)(2), Jan. 1, 2021, 134 Stat. 4241; amended Pub. L. 117–81, div. A, title XVII, §1701(i)(7)(B)(ii), Dec. 27, 2021, 135 Stat. 2142.)

Editorial Notes

Prior Provisions

A prior section 3846, added Pub. L. 85–861, §1(94), Sept. 2, 1958, 72 Stat. 1484, related to transfer or discharge of reserve first lieutenants, captains, and majors not recommended for promotion by two selection boards, prior to repeal by Pub. L. 103–337, div. A, title XVI, §§1629(a)(3), 1691(b)(1), Oct. 5, 1994, 108 Stat. 2963, 3026, effective Oct. 1, 1996. See section 14501 et seq. of this title.

Amendments

2021—Pub. L. 117–81, §1701(i)(7)(B)(ii), amended Pub. L. 116–283, §1835(e)(1), which enacted this section, by adding section 3846 designation and catchline "[Reserved]" and striking out former section 3846 designation and catchline "Defense Contract Audit Agency: legal resources and expertise".

Statutory Notes and Related Subsidiaries

Effective Date of 2021 Amendment

Amendment made to Pub. L. 116–283 by Pub. L. 117–81, resulting in omission of this section, applicable as if included in the enactment of title XVIII of Pub. L. 116–283 as enacted, see section 1701(a)(2) of Pub. L. 117–81, set out in a note preceding section 3001 of this title and Effective Date note below.

Effective Date

Section 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.

§3847. Defense Contract Audit Agency: annual report

(a) Required Report.—The Director of the Defense Contract Audit Agency shall prepare an annual report of the activities of the Agency during the previous fiscal year. The report shall include, at a minimum—

(1) a description of significant problems, abuses, and deficiencies encountered during the conduct of contractor audits;

(2) statistical tables showing—

(A) the total number and dollar value of audit reports completed and pending, set forth separately by type of audit;

(B) the priority given to each type of audit;

(C) the length of time taken for each type of audit, both from the date of receipt of a qualified incurred cost submission and from the date the audit begins;

(D) the sustained questioned costs, set forth separately by type of audit, both as a total value and as a percentage of the total questioned costs for the audit;

(E) the total number and dollar value of incurred cost audits completed, and the method by which such incurred cost audits were completed;

(F) the aggregate cost of performing audits, set forth separately by type of audit;

(G) the ratio of sustained questioned costs to the aggregate costs of performing audits, set forth separately by type of audit; and

(H) the total number and dollar value of audits that are pending for a period longer than one year as of the end of the fiscal year covered by the report, and the fiscal year in which the qualified submission was received, set forth separately by type of audit;

(3) a summary of any recommendations of actions or resources needed to improve the audit process;

(4) a summary, set forth separately by dollar amount and percentage, of indirect costs for independent research and development incurred by contractors in the previous fiscal year;

(5) a summary, set forth separately by dollar amount and percentage, of indirect costs for bid and proposal costs incurred by contractors in the previous fiscal year;

(6) a description of outreach actions toward industry to promote more effective use of audit resources; and

(7) any other matters the Director considers appropriate.

(b) Submission of Annual Report.—Not later than March 30 of each year, the Director shall submit to the congressional defense committees the report required by subsection (a).

(c) Public Availability.—Not later than 60 days after the submission of an annual report to the congressional defense committees under subsection (b), the Director shall make the report available on the publicly available website of the Agency or such other publicly available website as the Director considers appropriate.

(d) Definitions.—

(1) The terms "incurred cost audit" and "qualified incurred cost submission" have the meaning given those terms in section 3842 of this title.

(2) The term "sustained questioned costs" means questioned costs that were recovered by the Federal Government as a result of contract negotiations related to such questioned costs.

(Added Pub. L. 112–81, div. A, title VIII, §805(a), Dec. 31, 2011, 125 Stat. 1486, §2313a; amended Pub. L. 114–92, div. A, title VIII, §893(b), Nov. 25, 2015, 129 Stat. 952; Pub. L. 114–328, div. A, title VIII, §824(d)(1), Dec. 23, 2016, 130 Stat. 2279; Pub. L. 115–91, div. A, title VIII, §811(d)(1), title X, §1081(d)(5), Dec. 12, 2017, 131 Stat. 1460, 1600; renumbered §3847 and amended Pub. L. 116–283, div. A, title XVIII, §1835(c), (d)(3), Jan. 1, 2021, 134 Stat. 4240.)

Editorial Notes

Prior Provisions

A prior section 3847, added Pub. L. 85–861, §1(94), Sept. 2, 1958, 72 Stat. 1484; Pub. L. 86–559, §1(25), June 30, 1960, 74 Stat. 272, provided for transfer to Retired Reserve or discharge from his reserve appointment, after July 1, 1960, of each officer in a reserve grade below lieutenant colonel with 25 years service assigned to Army Nurse Corps, Army Medical Specialist Corps, or Women's Army Corps who had not been recommended for promotion to reserve grade of lieutenant colonel or who has not remained on active duty since such a recommendation, prior to repeal by Pub. L. 90–130, §1(12)(A), Nov. 8, 1967, 81 Stat. 376.

Amendments

2021—Pub. L. 116–283, §1835(c), renumbered section 2313a of this title as this section.

Subsec. (d)(1). Pub. L. 116–283, §1835(d)(3), substituted "section 3842" for "section 2313b".

2017—Subsec. (a)(2)(A). Pub. L. 115–91, §811(d)(1)(A)(i), inserted "and dollar value" after "number" and ", set forth separately by type of audit" after "pending".

Subsec. (a)(2)(C). Pub. L. 115–91, §811(d)(1)(A)(ii), inserted ", both from the date of receipt of a qualified incurred cost submission and from the date the audit begins" after "audit".

Subsec. (a)(2)(D). Pub. L. 115–91, §811(d)(1)(A)(iii), amended subpar. (D) generally. Prior to amendment, subpar. (D) read as follows: "the total costs of sustained or recovered costs both as a total number and as a percentage of questioned costs; and".

Subsec. (a)(2)(E) to (H). Pub. L. 115–91, §811(d)(1)(A)(iv), (v), added subpars. (E) to (H) and struck out former subpar. (E) which read as follows: "an assessment of the number and types of audits pending for a period longer than allowed pursuant to guidance of the Defense Contract Audit Agency;".

Subsec. (a)(4), (5). Pub. L. 115–91, §1081(d)(5), amended Pub. L. 114–328, §824(d)(1)(B). See 2016 Amendment note below.

Subsec. (d). Pub. L. 115–91, §811(d)(1)(B), added subsec. (d).

2016—Subsec. (a)(4), (5). Pub. L. 114–328, §824(d)(1)(B), as amended by Pub. L. 115–91, §1081(d)(5), added pars. (4) and (5). Former pars. (4) and (5) redesignated (6) and (7), respectively.

Subsec. (a)(6), (7). Pub. L. 114–328, §824(d)(1)(A), redesignated pars. (4) and (5) as (6) and (7), respectively.

2015—Subsec. (a)(2)(D). Pub. L. 114–92, §893(b)(1), amended subpar. (D) generally. Prior to amendment, subpar. (D) read as follows: "the total dollar value of questioned costs (including a separate category for the dollar value of unsupported costs); and".

Subsec. (a)(4), (5). Pub. L. 114–92, §893(b)(2)–(4), added par. (4) and redesignated former par. (4) as (5).

Statutory Notes and Related Subsidiaries

Effective Date of 2021 Amendment

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 a note preceding section 3001 of this title.

Effective Date of 2017 Amendment

Pub. L. 115–91, div. A, title X, §1081(d), Dec. 12, 2017, 131 Stat. 1599, provided that the amendment made by section 1081(d)(5) is effective as of Dec. 23, 2016, and as if included in Pub. L. 114–328 as enacted.

Effective Date of 2016 Amendment

Pub. L. 114–328, div. A, title VIII, §824(d)(2), Dec. 23, 2016, 130 Stat. 2279, provided that: "The amendments made by this subsection [amending this section] shall take effect on October 1, 2018."

§3848. Defense audit agencies: Small Business Ombudsmen

(a) Small Business Ombudsman.—The Secretary of Defense shall designate within each defense audit agency an official as the Small Business Ombudsman to have the duties described in subsection (b) and such other responsibilities as may be determined by the Secretary.

(b) Duties.—The Small Business Ombudsman of a defense audit agency shall—

(1) advise the Director of the defense audit agency on policy issues related to small business concerns;

(2) serve as the defense audit agency's primary point of contact and source of information for small business concerns;

(3) collect and monitor relevant data regarding the defense audit agency's conduct of audits of small business concerns, including—

(A) data regarding the timeliness of audit closeouts for small business concerns; and

(B) data regarding the responsiveness of the defense audit agency to issues or other matters raised by small business concerns; and

(4) make recommendations to the Director regarding policies, processes, and procedures related to the timeliness of audits of small business concerns and the responsiveness of the defense audit agency to issues or other matters raised by small business concerns.

(c) Audit Independence.—The Small Business Ombudsman of a defense audit agency shall be segregated from ongoing audits in the field and shall not engage in activities with regard to particular audits that could compromise the independence of the defense audit agency or undermine compliance with applicable audit standards.

(d) Defense Audit Agency Defined.—In this section, the term "defense audit agency" means the Defense Contract Audit Agency and the Defense Contract Management Agency.

(Added Pub. L. 112–239, div. A, title XVI, §1612(a), Jan. 2, 2013, 126 Stat. 2064, §204; renumbered §3848 and amended Pub. L. 116–283, div. A, title XVIII, §1835(c), (d)(4), Jan. 1, 2021, 134 Stat. 4240.)

Editorial Notes

Prior Provisions

A prior section 3848, added Pub. L. 85–861, §1(94), Sept. 2, 1958, 72 Stat. 1485; amended Pub. L. 86–559, §1(26), June 30, 1960, 74 Stat. 272; Pub. L. 90–130, §1(12)(B), Nov. 8, 1967, 81 Stat. 376; Pub. L. 90–486, §9(1), Aug. 13, 1968, 82 Stat. 760; Pub. L. 95–485, title VIII, §820(h), Oct. 20, 1978, 92 Stat. 1627; Pub. L. 96–513, title V, §512(8), Dec. 12, 1980, 94 Stat. 2929; Pub. L. 99–145, title V, §522(a)(1), title XIII, §1303(a)(20)(B), Nov. 8, 1985, 99 Stat. 631, 739; Pub. L. 100–456, div. A, title XII, §1234(a)(1), Sept. 29, 1988, 102 Stat. 2059, related to transfer or discharge of reserve first lieutenants, captains, majors, and lieutenant colonels with 28 years of service, prior to repeal by Pub. L. 103–337, div. A, title XVI, §§1629(a)(3), 1691(b)(1), Oct. 5, 1994, 108 Stat. 2963, 3026, effective Oct. 1, 1996. See section 14501 et seq. of this title.

A prior section 3849, added Pub. L. 85–861, §1(94), Sept. 2, 1958, 72 Stat. 1485, related to separation or transfer to retired reserve of officers in the reserve grade of lieutenant colonel assigned to the Women's Army Corps upon completion of 28 years of service, prior to repeal by Pub. L. 86–559, §1(27), June 30, 1960, 74 Stat. 272.

Prior sections 3850 to 3855 were repealed by Pub. L. 103–337, div. A, title XVI, §§1629(a)(3), 1691(b)(1), Oct. 5, 1994, 108 Stat. 2963, 3026, effective Oct. 1, 1996.

Section 3850, added Pub. L. 85–861, §1(94), Sept. 2, 1958, 72 Stat. 1485; amended Pub. L. 104–106, div. A, title XV, §1501(c)(25), Feb. 10, 1996, 110 Stat. 499, related to transfer or discharge of excessive reserve commissioned officers in active status with thirty or more years of service. See sections 14514 and 14704 of this title.

Section 3851, added Pub. L. 85–861, §1(94), Sept. 2, 1958, 72 Stat. 1486; amended Pub. L. 86–559, §1(28), June 30, 1960, 74 Stat. 272; Pub. L. 90–486, §9(1), Aug. 13, 1968, 82 Stat. 760; Pub. L. 96–513, title V, §512(8), Dec. 12, 1980, 94 Stat. 2929; Pub. L. 98–525, title V, §513, Oct. 19, 1984, 98 Stat. 2522; Pub. L. 99–145, title V, §522(a)(2), title XIII, §1303(a)(20)(B), Nov. 8, 1985, 99 Stat. 631, 739; Pub. L. 99–661, div. A, title XIII, §1342(g), Nov. 14, 1986, 100 Stat. 3992; Pub. L. 100–456, div. A, title XII, §1234(a)(1), Sept. 29, 1988, 102 Stat. 2059, related to transfer or discharge of reserve colonels and brigadier generals with 30 years of service or five years in grade. See section 14508(a), (e) of this title.

Section 3852, added Pub. L. 85–861, §1(94), Sept. 2, 1958, 72 Stat. 1486; amended Pub. L. 86–559, §1(29), June 30, 1960, 74 Stat. 272; Pub. L. 99–145, title V, §523, title XIII, §1303(a)(20)(B), Nov. 8, 1985, 99 Stat. 632, 739; Pub. L. 100–456, div. A, title XII, §1234(a)(1), Sept. 29, 1988, 102 Stat. 2059, related to transfer or discharge of reserve major generals with 35 years of service or five years in grade. See section 14508(b), (f) of this title.

Section 3853, added Pub. L. 85–861, §1(94), Sept. 2, 1958, 72 Stat. 1486; amended Pub. L. 86–559, §1(30), June 30, 1960, 74 Stat. 273; Pub. L. 86–651, title I, §115, Sept. 7, 1962, 76 Stat. 513; Pub. L. 96–513, title V, §512(9), Dec. 12, 1980, 94 Stat. 2929; Pub. L. 98–94, title X, §1016(a), Sept. 24, 1983, 97 Stat. 668; Pub. L. 103–337, div. A, title XVI, §1635(a), Oct. 5, 1994, 108 Stat. 2968, related to computation of years of service. See section 14706 of this title.

Section 3854, added Pub. L. 85–861, §1(94), Sept. 2, 1958, 72 Stat. 1486, authorized Secretary of the Army to prescribe regulations to carry out this chapter.

Section 3855, added Pub. L. 86–559, §1(31), June 30, 1960, 74 Stat. 273; amended Pub. L. 96–107, title IV, §403(a), Nov. 9, 1979, 93 Stat. 808; Pub. L. 96–513, title II, §215(a), Dec. 12, 1980, 94 Stat. 2885; Pub. L. 100–180, div. A, title VII, §717(a), (d)(1)(A), Dec. 4, 1987, 101 Stat. 1113, 1114; Pub. L. 101–189, div. A, title VII, §§710(a), 711(a), Nov. 29, 1989, 103 Stat. 1476, 1477, related to retention in active status of certain reserve officers. See section 14703(a)(1), (b) of this title.

Amendments

2021—Pub. L. 116–283 renumbered section 204 of this title as this section and substituted "Defense audit agencies: Small Business Ombudsmen" for "Small Business Ombudsman for defense audit agencies" in section catchline.

Statutory Notes and Related Subsidiaries

Effective Date of 2021 Amendment

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 a note preceding section 3001 of this title.

CHAPTER 281—CLAIMS AND DISPUTES

        

Editorial Notes

Prior Provisions

A prior chapter 281 "CLAIMS AND DISPUTES", as added by Pub. L. 115–232, div. A, title VIII, §801(a), Aug. 13, 2018, 132 Stat. 1828, and consisting of reserved section 3861, was repealed by Pub. L. 116–283, div. A, title XVIII, §1836(a), Jan. 1, 2021, 134 Stat. 4241.

Amendments

2022—Pub. L. 117–263, div. A, title VIII, §805(b), Dec. 23, 2022, 136 Stat. 2702, added item 3862 and struck out former item 3862 "Requests for equitable adjustment or other relief: certification".

§3861. Research and development contracts: indemnification provisions

(a) With the approval of the Secretary of the military department concerned, any contract of a military department for research or development, or both, may provide that the United States will indemnify the contractor against either or both of the following, but only to the extent that they arise out of the direct performance of the contract and to the extent not compensated by insurance or otherwise:

(1) Claims (including reasonable expenses of litigation or settlement) by third persons, including employees of the contractor, for death, bodily injury, or loss of or damage to property, from a risk that the contract defines as unusually hazardous.

(2) Loss of or damage to property of the contractor from a risk that the contract defines as unusually hazardous.

(b) A contract, made under subsection (a), that provides for indemnification must also provide for—

(1) notice to the United States of any claim or suit against the contractor for the death, bodily injury, or loss of or damage to property; and

(2) control of or assistance in the defense by the United States, at its election, of that suit or claim.

(c) No payment may be made under subsection (a) unless the Secretary of the department concerned, or an officer or official of his department designated by him, certifies that the amount is just and reasonable.

(d) Upon approval by the Secretary concerned, payments under subsection (a) may be made from—

(1) funds obligated for the performance of the contract concerned;

(2) funds available for research or development, or both, and not otherwise obligated; or

(3) funds appropriated for those payments.

(Aug. 10, 1956, ch. 1041, 70A Stat. 134, §2354; renumbered §3861 and amended Pub. L. 116–283, div. A, title XVIII, §1836(b), (c), Jan. 1, 2021, 134 Stat. 4241.)

Editorial Notes

Amendments

2021—Pub. L. 116–283 renumbered section 2354 of this title as this section and substituted "Research and development contracts: indemnification provisions" for "Contracts: indemnification provisions" in section catchline.

Statutory Notes and Related Subsidiaries

Effective Date of 2021 Amendment

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 a note preceding section 3001 of this title.

§3862. Requests for equitable adjustment or other relief

(a) Certification Requirement.—A request for equitable adjustment to contract terms or request for relief under Public Law 85–804 (50 U.S.C. 1431 et seq.) that exceeds the simplified acquisition threshold may not be paid unless a person authorized to certify the request on behalf of the contractor certifies, at the time the request is submitted, that—

(1) the request is made in good faith, and

(2) the supporting data are accurate and complete to the best of that person's knowledge and belief.

(b) Restriction on Legislative Payment of Claims.—In the case of a contract of an agency named in section 3063 of this title, no provision of a law enacted after September 30, 1994, that directs the payment of a particular claim under such contract, a particular request for equitable adjustment to any term of such contract, or a particular request for relief under Public Law 85–804 (50 U.S.C. 1431 et seq.) regarding such contract may be implemented unless such provision of law—

(1) specifically refers to this subsection; and

(2) specifically states that this subsection does not apply with respect to the payment directed by that provision of law.

(c) Treatment of Certain Clauses Implementing Executive Orders.—The unilateral insertion of a covered clause into an existing Department of Defense contract, order, or other transaction by a contracting officer shall be treated as a change directed by the contracting officer pursuant to, and subject to, the Changes clause of the underlying contract, order, or other transaction.

(d) Definitions.—In this section:

(1) The term "simplified acquisition threshold" has the meaning given that term in section 134 of title 41.

(2) The term "Changes clause" means the clause described in part 52.243–4 of the Federal Acquisition Regulation or any successor regulation.

(3) The term "covered clause" means any clause implementing the requirements of an Executive order issued by the President.

(Added Pub. L. 103–355, title II, §2301(a), Oct. 13, 1994, 108 Stat. 3320, §2410; amended Pub. L. 111–350, §5(b)(27), Jan. 4, 2011, 124 Stat. 3845; renumbered §3862 and amended Pub. L. 116–283, div. A, title XVIII, §§1836(b), 1883(b)(2), Jan. 1, 2021, 134 Stat. 4241, 4294; Pub. L. 117–81, div. A, title XVII, §1701(d)(6), Dec. 27, 2021, 135 Stat. 2136; Pub. L. 117–263, div. A, title VIII, §805(a), Dec. 23, 2022, 136 Stat. 2701.)

Editorial Notes

References in Text

Public Law 85–804, referred to in subsecs. (a) and (b), is Pub. L. 85–804, Aug. 28, 1958, 72 Stat. 972, which is classified generally to chapter 29 (§1431 et seq.) of Title 50, War and National Defense. For complete classification of this Act to the Code, see Tables.

Amendments

2022—Pub. L. 117–263, §805(a)(1), struck out ": certification" after "relief" in section catchline.

Subsec. (c). Pub. L. 117–263, §805(a)(3), added subsec. (c). Former subsec. (c) redesignated (d).

Subsec. (d). Pub. L. 117–263, §805(a)(2), (4), redesignated subsec. (c) as (d), substituted "Definitions" for "Definition" in heading, substituted "In this section:" for "In this section,", designated remainder of existing provisions as par. (1), substituted "The term" for "the term", and added pars. (2) and (3).

2021—Pub. L. 116–283, §1836(b), renumbered section 2410 of this title as this section.

Subsec. (b). Pub. L. 117–81 substituted "section 3063" for "section 2303(a)" in introductory provisions.

Pub. L. 116–283, §1883(b)(2), which directed that each reference in the text of title 10 to a section that was redesignated by title XVIII of Pub. L. 116–283, as such section was in effect before the redesignation, be amended by striking such reference and inserting a reference to the appropriate redesignated section, was not executed with respect to "section 2303(a)", which was redesignated as multiple sections.

2011—Subsec. (c). Pub. L. 111–350 substituted "section 134 of title 41" for "section 4(11) of the Office of Federal Procurement Policy Act".

Statutory Notes and Related Subsidiaries

Effective Date of 2021 Amendment

Amendment by Pub. L. 117–81 to take effect immediately after the amendments made by title XVIII of Pub. L. 116–283 have taken effect, see section 1701(a)(3) of Pub. L. 117–81, set out in a note preceding section 3001 of this title and note below.

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 a note preceding section 3001 of this title.

Effective Date

For effective date and applicability of section, see section 10001 of Pub. L. 103–355, set out as an Effective Date of 1994 Amendment note under section 8752 of this title.

Conforming Regulations

Pub. L. 117–263, div. A, title VIII, §805(c), Dec. 23, 2022, 136 Stat. 2702, provided that: "Not later than 120 days after the date of the enactment of this Act [Dec. 23, 2022], the Secretary of Defense shall revise the Department of Defense Supplement to the Federal Acquisition Regulation to implement the requirements of section 3862 of title 10, United States Code, as amended by subsection (a)."

Conforming Policy Guidance

Pub. L. 117–263, div. A, title VIII, §805(d), Dec. 23, 2022, 136 Stat. 2702, provided that: "Not later than 120 days after the date of the enactment of this Act [Dec. 23, 2022], the Secretary of Defense shall revise applicable policy guidance on other transactions to implement the requirements of section 3862 of title 10, United States Code, as amended by subsection (a)."

§3863. Retention of amounts collected from contractor during the pendency of contract dispute

(a) Retention of Funds.—Notwithstanding sections 1552(a) and 3302(b) of title 31, any amount, including interest, collected from a contractor as a result of a claim made by a military department or Defense Agency under chapter 71 of title 41, shall remain available in accordance with this section to pay—

(1) any settlement of the claim by the parties;

(2) any judgment rendered in the contractor's favor on an appeal of the decision on that claim to the Armed Services Board of Contract Appeals under section 7104(a) of title 41; or

(3) any judgment rendered in the contractor's favor in an action on that claim in a court of the United States.

(b) Period of Availability.—(1) The period of availability of an amount under subsection (a), in connection with a claim—

(A) expires 180 days after the expiration of the period for bringing an action on that claim in the United States Court of Federal Claims under section 7104(b) of title 41 if, within that 180-day period—

(i) no appeal on the claim is commenced at the Armed Services Board of Contract Appeals under section 7104(a) of such title; and

(ii) no action on the claim is commenced in a court of the United States; or

(B) if not expiring under subparagraph (A), expires—

(i) in the case of a settlement of the claim, 180 days after the date of the settlement; or

(ii) in the case of a judgment rendered on the claim in an appeal to the Armed Services Board of Contract Appeals under section 7104(a) of title 41 or an action in a court of the United States, 180 days after the date on which the judgment becomes final and not appealable.

(2) While available under this section, an amount may be obligated or expended only for a purpose described in subsection (a).

(3) Upon the expiration of the period of availability of an amount under paragraph (1), the amount shall be covered into the Treasury as miscellaneous receipts.

(Added Pub. L. 105–85, div. A, title VIII, §831(a), Nov. 18, 1997, 111 Stat. 1841, §2410m; amended Pub. L. 108–136, div. A, title X, §1031(a)(21), Nov. 24, 2003, 117 Stat. 1598; Pub. L. 111–350, §5(b)(32), Jan. 4, 2011, 124 Stat. 3845; Pub. L. 112–81, div. A, title X, §1061(15), Dec. 31, 2011, 125 Stat. 1583; Pub. L. 113–291, div. A, title X, §1071(a)(8), Dec. 19, 2014, 128 Stat. 3504; renumbered §3863, Pub. L. 116–283, div. A, title XVIII, §1836(b), Jan. 1, 2021, 134 Stat. 4241.)

Editorial Notes

Prior Provisions

Prior sections 3881 and 3882 were repealed by Pub. L. 85–155, title IV, §401(1), Aug. 21, 1957, 71 Stat. 390.

Section 3881, act Aug. 10, 1956, ch. 1041, 70A Stat. 222, authorized Secretary of the Army to retire regular commissioned officers of Army Nurse Corps or Women's Medical Specialist Corps whose regular grade is below major.

Section 3882, act Aug. 10, 1956, ch. 1041, 70A Stat. 222, authorized Secretary of the Army to retire regular commissioned officers of Army Nurse Corps or Women's Medical Specialist Corps whose regular grade is above captain.

Prior sections 3883 to 3886 were repealed by Pub. L. 96–513, title II, §216, title VII, §701, Dec. 12, 1980, 94 Stat. 2886, 2955, effective Sept. 15, 1981.

Section 3883, acts Aug. 10, 1956, ch. 1041, 70A Stat. 222; Aug. 6, 1958, Pub. L. 85–600, §1(6), 72 Stat. 522; Nov. 2, 1966, Pub. L. 89–718, §3, 80 Stat. 1115; Oct. 30, 1978, Pub. L. 95–551, §2, 92 Stat. 2069, provided that, unless retired or separated at an earlier date, each commissioned officer whose regular grade is below major general, other than a professor or the director of admissions of the United States Military Academy, be retired when he becomes 60 years of age, except as provided by section 8301 of title 5. See section 1251 of this title.

Section 3884, acts Aug. 10, 1956, ch. 1041, 70A Stat. 222; Nov. 2, 1966, Pub. L. 89–718, §3, 80 Stat. 1115, provided that, unless retired or separated at an earlier date, each commissioned officer whose regular grade is major general, and whose retirement under section 3923 of this title has been deferred under cl. (1) of that section, be retired when he becomes 60 years of age, except as provided by section 8301 of title 5. See section 1251 of this title.

Section 3885, acts Aug. 10, 1956, ch. 1041, 70A Stat. 222; Nov. 2, 1966, Pub. L. 89–718, §3, 80 Stat. 1115, provided that, unless retired or separated at an earlier date or unless retained under section 3923(2) of this title, each commissioned officer whose regular grade is major general be retired when he becomes 62 years of age, except as provided by section 8301 of title 5. See section 1251 of this title.

Section 3886, acts Aug. 10, 1956, ch. 1041, 70A Stat. 222; Aug. 6, 1958, Pub. L. 85–600, §1(7), 72 Stat. 522; Nov. 2, 1966, Pub. L. 89–718, §3, 80 Stat. 1115; Oct. 30, 1978, Pub. L. 95–551, §2, 92 Stat. 2069, provided that, unless retired or separated at an earlier date, each commissioned officer whose regular grade is major general, and whose retirement under section 3923 of this title has been deferred under cl. (2) of that section, and each permanent professor and the director of admissions of the United States Military Academy, be retired when he becomes 64 years of age, except as provided by section 8301 of title 5. See section 1251 of this title.

A prior section 3887, act Aug. 10, 1956, ch. 1041, 70A Stat. 223, related to computation of years of service of commissioned officers of Army Nurse Corps or Women's Medical Specialist Corps for purposes of retirement under former sections 3881 or 3882 of this title, or retirement pay under section 3991 of this title, prior to repeal by Pub. L. 85–155, title IV, §401(1), Aug. 21, 1957, 71 Stat. 390.

Prior sections 3888 and 3889 were repealed by Pub. L. 96–513, title II, §216, title VII, §701, Dec. 12, 1980, 94 Stat. 2886, 2955, effective Sept. 15, 1981.

Section 3888, acts Aug. 10, 1956, ch. 1041, 70A Stat. 223; Aug. 21, 1957, Pub. L. 85–155, title I, §101(18), 71 Stat. 379; May 20, 1958, Pub. L. 85–422, §11(a)(3), 72 Stat. 131; Sept. 2, 1958, Pub. L. 85–861, §1(96), 72 Stat. 1487, related to computation of service for determining retired pay of a commissioned officer of Regular Army retired under former section 3883, 3884, 3885, or 3886 of this title.

Section 3889, act Aug. 10, 1956, ch. 1041, 70A Stat. 224, provided that a member of Army retired under this chapter be entitled to retired pay computed under chapter 745 of this title.

Amendments

2021—Pub. L. 116–283 renumbered section 2410m of this title as this section.

2014—Subsec. (b)(1)(A)(i). Pub. L. 113–291, §1071(a)(8)(A), substituted "section 7104(a) of such title" for "section 7 of such Act".

Subsec. (b)(1)(B)(ii). Pub. L. 113–291, §1071(a)(8)(B), substituted "section 7104(a) of title 41" for "section 7 of the Contract Disputes Act of 1978".

2011—Subsec. (a). Pub. L. 111–350, §5(b)(32)(A), substituted "chapter 71 of title 41" for "the Contract Disputes Act of 1978 (41 U.S.C. 601 et seq.)" in introductory provisions.

Subsec. (a)(2). Pub. L. 111–350, §5(b)(32)(B), substituted "section 7104(a) of title 41" for "section 7 of such Act (41 U.S.C. 606)".

Subsec. (b)(1)(A). Pub. L. 111–350, §5(b)(32)(C), substituted "section 7104(b) of title 41" for "section 10(a) of the Contract Disputes Act of 1978 (41 U.S.C. 609(a))" in introductory provisions.

Subsec. (c). Pub. L. 112–81 struck out subsec. (c), which required submission of annual report on amounts available for obligation.

2003—Subsec. (c). Pub. L. 108–136, §1031(a)(21)(A), substituted "Annual Report" for "Reporting Requirement" in heading and "Not later than 60 days after the end of each fiscal year" for "Each year" in introductory provisions.

Subsec. (c)(1). Pub. L. 108–136, §1031(a)(21)(B), inserted "at the end of such fiscal year" before period at end.

Subsec. (c)(2). Pub. L. 108–136, §1031(a)(21)(C), substituted "under this section during that fiscal year" for "during the year preceding the year in which the report is submitted".

Subsec. (c)(3). Pub. L. 108–136, §1031(a)(21)(D), substituted "under this section during that fiscal year" for "in such preceding year".

Subsec. (c)(4). Pub. L. 108–136, §1031(a)(21)(E), substituted "under this section during that fiscal year" for "in such preceding year".

Statutory Notes and Related Subsidiaries

Effective Date of 2021 Amendment

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 a note preceding section 3001 of this title.

CHAPTER 283—[RESERVED]

Editorial Notes

Prior Provisions

A prior chapter 283 "FOREIGN ACQUISITIONS", as added by Pub. L. 115–232, div. A, title VIII, §801(a), Aug. 13, 2018, 132 Stat. 1828, and consisting of reserved section 3881, was repealed by Pub. L. 116–283, div. A, title XVIII, §1837, Jan. 1, 2021, 134 Stat. 4241, as amended by Pub. L. 117–81, div. A, title XVII, §1701(i)(8)(B), Dec. 27, 2021, 135 Stat. 2142.

Codification

Pub. L. 116–283, div. A, title XVIII, §1837, Jan. 1, 2021, 134 Stat. 4241, enacted this chapter "FOREIGN ACQUISITIONS", which consisted of subchapters I "General" and II "Prohibition on Contracting with the Enemy". Subchapter I consisted of section 3881 "Contracts: consideration of national security objectives", as transferred from section 2327 of this title, and subchapter II consisted of reserved sections 3891 to 3893. Subsequently, Pub. L. 117–81, div. A, title XVII, §1701(i)(8)(B), Dec. 27, 2021, 135 Stat. 2142, generally amended section 1837 of Pub. L. 116–283, effective as if included therein, so that this chapter would consist only of the chapter 283 designation and "[RESERVED]", thereby omitting the contents of this chapter in their entirety.

CHAPTER 287—OTHER CONTRACTING PROGRAMS

        

Editorial Notes

Prior Provisions

A prior chapter 285 "SMALL BUSINESS PROGRAMS", as added by Pub. L. 115–232, div. A, title VIII, §801(a), Aug. 13, 2018, 132 Stat. 1828, and consisting of reserved section 3901, was repealed by Pub. L. 116–283, div. A, title XVIII, §1871(a)(1), Jan. 1, 2021, 134 Stat. 4287.

A prior chapter 287 "SOCIOECONOMIC PROGRAMS", as added by Pub. L. 115–232, div. A, title VIII, §801(a), Aug. 13, 2018, 132 Stat. 1829, and consisting of reserved section 3961, was repealed by Pub. L. 116–283, div. A, title XVIII, §1838(a), Jan. 1, 2021, 134 Stat. 4242.

Amendments

2021—Pub. L. 117–81, div. A, title XVII, §1701(l)(1)(B), (v)(2)(B), Dec. 27, 2021, 135 Stat. 2144, 2154, amended Pub. L. 116–283, div. A, title XVIII, §1838(a), Jan. 1, 2021, 134 Stat. 4242, which added this analysis, by substituting "OTHER CONTRACTING" for "SOCIOECONOMIC" in chapter heading and "[Reserved]" for "Research and educational programs and activities: historically black colleges and universities and minority-serving institutions of higher education" in item 3904.

Statutory Notes and Related Subsidiaries

Demonstration Project for Contractors Employing Persons With Disabilities

Pub. L. 115–232, div. A, title VIII, §888, Aug. 13, 2018, 132 Stat. 1916, provided that: "Not later than 180 days after the date of the enactment of this Act [Aug. 13, 2018], the Secretary of Defense shall update the Defense Federal Acquisition Regulatory Supplement to include an instruction on the pilot program regarding employment of persons with disabilities authorized under section 853 of the National Defense Authorization Act for Fiscal Year 2004 (Public Law 108–136; 10 U.S.C. 2302 note)."

Pub. L. 108–136, div. A, title VIII, §853, Nov. 24, 2003, 117 Stat. 1557, as amended by Pub. L. 108–199, div. H, §110, Jan. 23, 2004, 118 Stat. 438; Pub. L. 115–232, div. A, title VIII, §812(a)(2)(C)(i), Aug. 13, 2018, 132 Stat. 1846, provided that:

"(a) Authority.—The Secretary of Defense may carry out a demonstration project by entering into one or more contracts with an eligible contractor for the purpose of providing defense contracting opportunities for severely disabled individuals.

"(b) Evaluation Factor.—In evaluating an offer for a contract under the demonstration program, the percentage of the total workforce of the offeror consisting of severely disabled individuals employed by the offeror shall be one of the evaluation factors.

"(c) Credit Toward Certain Small Business Contracting Goals.—Department of Defense contracts entered into with eligible contractors under the demonstration project under this section, and subcontracts entered into with eligible contractors under such contracts, shall be credited toward the attainment of goals established under section 15(g)(1) of the Small Business Act (15 U.S.C. 644(g)(1)) regarding the extent of the participation of disadvantaged small business concerns in contracts of the Department of Defense and subcontracts under such contracts.

"(d) Definitions.—In this section:

"(1) Eligible contractor.—The term 'eligible contractor' means a business entity operated on a for-profit or nonprofit basis that—

"(A) employs severely disabled individuals at a rate that averages not less than 33 percent of its total workforce over a period prescribed by the Secretary;

"(B) pays not less than the minimum wage prescribed pursuant to section 6 of the Fair Labor Standards Act of 1938 (29 U.S.C. 206) to the employees who are severely disabled individuals; and

"(C) provides for its employees health insurance and a retirement plan comparable to those provided for employees by business entities of similar size in its industrial sector or geographic region.

"(2) Severely disabled individual.—The term 'severely disabled individual' means an individual with a disability (as defined in section 3 of the Americans with Disabilities Act of 1990 (42 U.S.C. 12102)) who has a severe physical or mental impairment that seriously limits one or more functional capacities."

§3901. Contracts: prohibition on competition between Department of Defense and small businesses

(a) Exclusion.—In any case in which the Secretary of Defense plans to use competitive procedures for a procurement, if the procurement is to be conducted as described in subsection (b), then the Secretary shall exclude the Department of Defense from competing in the procurement.

(b) Procurement Description.—The requirement to exclude the Department of Defense under subsection (a) applies in the case of a procurement to be conducted by excluding from competition entities in the private sector other than small business concerns in furtherance of section 8 or 15 of the Small Business Act (15 U.S.C. 637 or 644).

(Added Pub. L. 103–160, div. A, title VIII, §848(a)(1), Nov. 30, 1993, 107 Stat. 1724, §2304a; renumbered §2304e, Pub. L. 104–106, div. D, title XLIII, §4321(b)(6)(A), Feb. 10, 1996, 110 Stat. 672; amended Pub. L. 115–232, div. A, title VIII, §812(a)(2)(C)(vi), Aug. 13, 2018, 132 Stat. 1847; Pub. L. 116–92, div. A, title XVII, §1731(a)(39)(A), Dec. 20, 2019, 133 Stat. 1814; renumbered §3901, Pub. L. 116–283, div. A, title XVIII, §1838(b), Jan. 1, 2021, 134 Stat. 4242; Pub. L. 117–81, div. A, title XVII, §1701(v)(2)(A), Dec. 27, 2021, 135 Stat. 2154.)

Editorial Notes

Amendments

2021—Pub. L. 116–283, §1838(b), as amended by Pub. L. 117–81, §1701(v)(2)(A), renumbered section 2304e of this title as this section.

2018—Subsec. (b). Pub. L. 115–232 substituted "other than" for "other than—", struck out par. (1) designation before "small business", and struck out par. (2) which read as follows: "entities described in subsection (a)(1) of section 2323 of this title in furtherance of the goal specified in that subsection."

1996—Pub. L. 104–106 renumbered section 2304a of this title as this section.

Statutory Notes and Related Subsidiaries

Effective Date of 2021 Amendment

Amendment by Pub. L. 117–81 applicable as if included in the enactment of title XVIII of Pub. L. 116–283 as enacted, see section 1701(a)(2) of Pub. L. 117–81, set out in a note preceding section 3001 of this title and note below.

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 a note preceding section 3001 of this title.

Effective Date

Pub. L. 103–160, div. A, title VIII, §848(b), Nov. 30, 1993, 107 Stat. 1725, provided that: "Section 2304a of title 10, United States Code [now 10 U.S.C. 3901], as added by subsection (a), shall take effect on the date of the enactment of this Act [Nov. 30, 1993]."

§3902. Credit for Indian contracting in meeting certain subcontracting goals for small disadvantaged businesses

(a) Regulations.—Subject to subsections (b) and (c), in any case in which a subcontracting goal is specified in a Department of Defense contract in the implementation of section 8(d) of the Small Business Act (15 U.S.C. 637(d)), credit toward meeting that subcontracting goal shall be given for—

(1) work performed in connection with that Department of Defense contract, and work performed in connection with any subcontract awarded under that Department of Defense contract, if such work is performed on any Indian lands and meets the requirements of paragraph (1) of subsection (b); or

(2) work performed in connection with that Department of Defense contract, and work performed in connection with any subcontract awarded under that Department of Defense contract, if the performance of such contract or subcontract is undertaken as a joint venture that meets the requirements of paragraph (2) of that subsection.

(b) Eligible Work.—(1) Work performed on Indian lands meets the requirements of this paragraph if—

(A) not less than 40 percent of the workers directly engaged in the performance of the work are Indians; or

(B) the contractor or subcontractor has an agreement with the tribal government having jurisdiction over such Indian lands that provides goals for training and development of the Indian workforce and Indian management.

(2) A joint venture undertaking to perform a contract or subcontract meets the requirements of this paragraph if—

(A) an Indian tribe or tribally owned corporation owns at least 50 percent of the joint venture;

(B) the activities of the joint venture under the contract or subcontract provide employment opportunities for Indians either directly or through the purchase of products or services for the performance of such contract or subcontract; and

(C) the Indian tribe or tribally owned corporation manages the performance of such contract or subcontract.

(c) Extent of Credit.—The amount of the credit given toward the attainment of any subcontracting goal under subsection (a) shall be—

(1) in the case of work performed as described in subsection (a)(1), the value of the work performed; and

(2) in the case of a contract or subcontract undertaken to be performed by a joint venture as described in subsection (a)(2), an amount equal to the amount of the contract or subcontract multiplied by the percentage of the tribe's or tribally owned corporation's ownership interest in the joint venture.

(d) Regulations.—The Secretary of Defense shall prescribe regulations for the implementation of this section.

(e) Definitions.—In this section:

(1) The term "Indian lands" has the meaning given that term by section 4(4) of the Indian Gaming Regulatory Act (25 U.S.C. 2703(4)).

(2) The term "Indian" has the meaning given that term by section 4(d) of the Indian Self-Determination and Education Assistance Act (25 U.S.C. 5304(d)).

(3) The term "Indian tribe" has the meaning given that term by section 4(e) of the Indian Self-Determination and Education Assistance Act (25 U.S.C. 5304(e)).

(4) The term "tribally owned corporation" means a corporation owned entirely by an Indian tribe.

(Added Pub. L. 102–484, div. A, title VIII, §801(g)(1), Oct. 23, 1992, 106 Stat. 2445, §2323a; amended Pub. L. 104–201, div. A, title X, §1074(a)(13), Sept. 23, 1996, 110 Stat. 2659; Pub. L. 115–232, div. A, title VIII, §812(a)(2)(C)(vii), Aug. 13, 2018, 132 Stat. 1847; Pub. L. 116–92, div. A, title XVII, §1731(a)(39)(B), Dec. 20, 2019, 133 Stat. 1814; renumbered §3902, Pub. L. 116–283, div. A, title XVIII, §1838(b), Jan. 1, 2021, 134 Stat. 4242; Pub. L. 117–81, div. A, title XVII, §1701(v)(2)(A), Dec. 27, 2021, 135 Stat. 2154.)

Editorial Notes

Codification

Section, as added by Pub. L. 102–484, consists of text of Pub. L. 101–189, div. A, title VIII, §832, Nov. 29, 1989, 103 Stat. 1508, revised by Pub. L. 102–484 by substituting "section 2323 of this title" for "section 1207 of the National Defense Authorization Act for Fiscal Year 1987 (10 U.S.C. 2301 note)" in subsec. (a). Section 832 of Pub. L. 101–189, which was formerly set out as a note under section 2301 of this title, was repealed by Pub. L. 102–484, div. A, title VIII, §801(h)(5), Oct. 23, 1992, 106 Stat. 2445.

Amendments

2021—Pub. L. 116–283, §1838(b), as amended by Pub. L. 117–81, §1701(v)(2)(A), renumbered section 2323a of this title as this section.

2019—Pub. L. 116–92, §1731(a)(39)(B)(i), struck out "and certain institutions of higher education" after "businesses" in section catchline.

Subsec. (e)(1). Pub. L. 116–92, §1731(a)(39)(B)(ii)(I), struck out "102 Stat. 2468;" before "25 U.S.C. 2703(4))."

Subsec. (e)(2). Pub. L. 116–92, §1731(a)(39)(B)(ii)(II), substituted "(25 U.S.C. 5304(d))" for "(25 U.S.C. 450b(d))".

Subsec. (e)(3). Pub. L. 116–92, §1731(a)(39)(B)(ii)(III), substituted "(25 U.S.C. 5304(e))" for "(25 U.S.C. 450b(e))".

2018—Subsec. (a). Pub. L. 115–232 struck out "section 2323 of this title and" after "implementation of".

1996—Subsec. (a). Pub. L. 104–201, which directed amendment of subsec. (a) by substituting "section 2323 of this title" for "section 1207 of the National Defense Authorization Act for Fiscal Year 1987 (10 U.S.C. 2301 note)", could not be executed because the language "section 1207 of the National Defense Authorization Act for Fiscal Year 1987 (10 U.S.C. 2301 note)" did not appear. See Codification note above.

Statutory Notes and Related Subsidiaries

Effective Date of 2021 Amendment

Amendment by Pub. L. 117–81 applicable as if included in the enactment of title XVIII of Pub. L. 116–283 as enacted, see section 1701(a)(2) of Pub. L. 117–81, set out in a note preceding section 3001 of this title and note below.

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 a note preceding section 3001 of this title.

§3903. Subcontracting plans: credit for certain purchases

(a) Purchases Benefiting Severely Handicapped Persons.—In the case of a business concern that has negotiated a small business subcontracting plan with a military department or a Defense Agency, purchases made by that business concern from qualified nonprofit agencies for the blind or other severely handicapped shall count toward meeting the subcontracting goal provided in that plan.

(b) Definitions.—In this section:

(1) The term "small business subcontracting plan" means a plan negotiated pursuant to section 8(d) of the Small Business Act (15 U.S.C. 637(d)) that establishes a goal for the participation of small business concerns as subcontractors under a contract.

(2) The term "qualified nonprofit agency for the blind or other severely handicapped" means—

(A) a qualified nonprofit agency for the blind, as defined in section 8501(7) of title 41;

(B) a qualified nonprofit agency for other severely disabled, as defined in section 8501(6) of title 41; and

(C) a central nonprofit agency designated by the Committee for Purchase from People Who Are Blind or Severely Disabled under section 8503(c) of title 41.

(Added Pub. L. 102–484, div. A, title VIII, §808(b)(1), Oct. 23, 1992, 106 Stat. 2449, §2410d; amended Pub. L. 103–337, div. A, title VIII, §804, Oct. 5, 1994, 108 Stat. 2815; Pub. L. 104–106, div. D, title XLIII, §4321(b)(15), Feb. 10, 1996, 110 Stat. 673; Pub. L. 105–85, div. A, title VIII, §835, Nov. 18, 1997, 111 Stat. 1843; Pub. L. 106–65, div. A, title VIII, §807, Oct. 5, 1999, 113 Stat. 705; Pub. L. 111–350, §5(b)(29), Jan. 4, 2011, 124 Stat. 3845; renumbered §3903, Pub. L. 116–283, div. A, title XVIII, §1838(b), Jan. 1, 2021, 134 Stat. 4242; Pub. L. 117–81, div. A, title XVII, §1701(v)(2)(A), Dec. 27, 2021, 135 Stat. 2154.)

Editorial Notes

Amendments

2021—Pub. L. 116–283, §1838(b), as amended by Pub. L. 117–81, §1701(v)(2)(A), renumbered section 2410d of this title as this section.

2011—Subsec. (b)(2)(A). Pub. L. 111–350, §5(b)(29)(A), substituted "section 8501(7) of title 41" for "section 5(3) of the Javits-Wagner-O'Day Act (41 U.S.C. 48b(3))".

Subsec. (b)(2)(B). Pub. L. 111–350, §5(b)(29)(B), substituted "disabled, as defined in section 8501(6) of title 41" for "handicapped, as defined in section 5(4) of such Act (41 U.S.C. 48b(4))".

Subsec. (b)(2)(C). Pub. L. 111–350, §5(b)(29)(C), substituted "section 8503(c) of title 41" for "section 2(c) of such Act (41 U.S.C. 47(c))".

1999—Subsec. (c). Pub. L. 106–65 struck out heading and text of subsec. (c). Text read as follows: "Subsection (a) shall cease to be effective at the end of September 30, 1999."

1997—Subsec. (c). Pub. L. 105–85 substituted "September 30, 1999" for "September 30, 1997".

1996—Subsec. (b)(3). Pub. L. 104–106 struck out par. (3) which read as follows: "The term 'Javits-Wagner-O'Day Act' means the Act entitled 'An Act to create a Committee on Purchases of Blind-made Products, and for other purposes', approved June 25, 1938 (41 U.S.C. 46–48c), commonly referred to as the Wagner-O'Day Act, that was revised and reenacted in the Act of June 23, 1971 (85 Stat. 77), commonly referred to as the Javits-Wagner-O'Day Act."

1994—Subsec. (b)(2)(C). Pub. L. 103–337, §804(1)(A), added subpar. (C).

Subsec. (b)(3), (4). Pub. L. 103–337, §804(1)(B), (C), redesignated par. (4) as (3) and struck out former par. (3) which read as follows: "The terms 'approved commodity' and 'approved service' mean a commodity and a service, respectively, that has been determined by the Committee for Purchase from the Blind and Other Severely Handicapped under section 2 of such Act (41 U.S.C. 47) to be suitable for procurement by the Federal Government."

Subsec. (c). Pub. L. 103–337, §804(2), substituted "September 30, 1997" for "September 30, 1994".

Statutory Notes and Related Subsidiaries

Effective Date of 2021 Amendment

Amendment by Pub. L. 117–81 applicable as if included in the enactment of title XVIII of Pub. L. 116–283 as enacted, see section 1701(a)(2) of Pub. L. 117–81, set out in a note preceding section 3001 of this title and note below.

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 a note preceding section 3001 of this title.

Effective Date of 1997 Amendment

Pub. L. 105–85, div. A, title VIII, §835, Nov. 18, 1997, 111 Stat. 1843, provided that the amendment made by that section is effective as of Sept. 30, 1997.

Effective Date of 1996 Amendment

For effective date and applicability of amendment by Pub. L. 104–106, see section 4401 of Pub. L. 104–106, set out as a note under section 2220 of this title.

Effective Date

Pub. L. 102–484, div. A, title VIII, §808(c), Oct. 23, 1992, 106 Stat. 2450, provided that: "Sections 2301(d) [repealed] and 2410d [now 10 U.S.C. 3903] of title 10, United States Code (as added by subsections (a) and (b), respectively), shall take effect on October 1, 1993."

Contract Participation by Agencies for the Blind or Other Severely Handicapped

Pub. L. 108–87, title VIII, §8025, Sept. 30, 2003, 117 Stat. 1077, as amended by Pub. L. 113–291, div. A, title X, §1071(b)(6), Dec. 19, 2014, 128 Stat. 3507, provided that:

"(a) Of the funds for the procurement of supplies or services appropriated by this Act [see Tables for classification] and hereafter, qualified nonprofit agencies for the blind or other severely handicapped shall be afforded the maximum practicable opportunity to participate as subcontractors and suppliers in the performance of contracts let by the Department of Defense.

"(b) During the current fiscal year and hereafter, a business concern which has negotiated with a military service or defense agency a subcontracting plan for the participation by small business concerns pursuant to section 8(d) of the Small Business Act (15 U.S.C. 637(d)) shall be given credit toward meeting that subcontracting goal for any purchases made from qualified nonprofit agencies for the blind or other severely handicapped.

"(c) For the purpose of this section, the phrase 'qualified nonprofit agency for the blind or other severely handicapped' means a nonprofit agency for the blind or other severely handicapped that has been approved by the Committee for the Purchase from the Blind and Other Severely Handicapped under chapter 85 of title 41, United States Code."

Similar provisions were contained in the following prior appropriation acts:

Pub. L. 107–248, title VIII, §8025, Oct. 23, 2002, 116 Stat. 1542.

Pub. L. 107–117, div. A, title VIII, §8028, Jan. 10, 2002, 115 Stat. 2253.

Pub. L. 106–259, title VIII, §8028, Aug. 9, 2000, 114 Stat. 680.

Pub. L. 106–79, title VIII, §8030, Oct. 25, 1999, 113 Stat. 1237.

Pub. L. 105–262, title VIII, §8030, Oct. 17, 1998, 112 Stat. 2303.

Pub. L. 105–56, title VIII, §8031, Oct. 8, 1997, 111 Stat. 1226.

Pub. L. 104–208, div. A, title I, §101(b) [title VIII, §8033], Sept. 30, 1996, 110 Stat. 3009–71, 3009-95.

Pub. L. 104–61, title VIII, §8042, Dec. 1, 1995, 109 Stat. 660.

Pub. L. 103–335, title VIII, §8048, Sept. 30, 1994, 108 Stat. 2628.

Pub. L. 103–139, title VIII, §8055, Nov. 11, 1993, 107 Stat. 1452.

Pub. L. 102–396, title IX, §9077, Oct. 6, 1992, 106 Stat. 1918.

Pub. L. 102–172, title VIII, §8082, Nov. 26, 1991, 105 Stat. 1190.

Pub. L. 101–511, title VIII, §8117, Nov. 5, 1990, 104 Stat. 1905.

[§3904. Omitted]

Editorial Notes

Codification

Pub. L. 116–283, div. A, title XVIII, §1838(b), Jan. 1, 2021, 134 Stat. 4242, initially transferred section 2362 of this title to this section, to become effective Jan. 1, 2022. Subsequently, Pub. L. 117–81, div. A, title XVII, §1701(v)(2)(A), Dec. 27, 2021, 135 Stat. 2154, amended section 1838(b) of Pub. L. 116–283, effective as if included therein, by striking out the directive to make the transfer, thereby omitting this section before it took effect. Another amendment by Pub. L. 117–81 resulted in the transfer of section 2362 to section 4144 of this title.

§3905. Products of Federal Prison Industries: procedural requirements

(a) Products for Which Federal Prison Industries Does Not Have Significant Market Share.—(1) Before purchasing a product listed in the latest edition of the Federal Prison Industries catalog under section 4124(d) of title 18 for which Federal Prison Industries does not have a significant market share, the Secretary of Defense shall conduct market research to determine whether the product is comparable to products available from the private sector that best meet the needs of the Department in terms of price, quality, and time of delivery.

(2) If the Secretary determines that a Federal Prison Industries product described in paragraph (1) is not comparable in price, quality, or time of delivery to products of the private sector that best meets the needs of the Department in terms of price, quality, and time of delivery, the Secretary shall use competitive procedures for the procurement of the product, or shall make an individual purchase under a multiple award contract in accordance with the competition requirements applicable to such contract. In conducting such a competition, the Secretary shall consider a timely offer from Federal Prison Industries.

(b) Products for Which Federal Prison Industries Has Significant Market Share.—(1) The Secretary of Defense may purchase a product listed in the latest edition of the Federal Prison Industries catalog for which Federal Prison Industries has a significant market share only if the Secretary uses competitive procedures for the procurement of the product or makes an individual purchase under a multiple award contract in accordance with the competition requirements applicable to such contract. In conducting such a competition, the Secretary shall consider a timely offer from Federal Prison Industries.

(2) For purposes of this subsection, Federal Prison Industries shall be treated as having a significant share of the market for a product if the Secretary, in consultation with the Administrator of Federal Procurement Policy, determines that the Federal Prison Industries share of the Department of Defense market for the category of products including such product is greater than 5 percent.

(c) Implementation by Secretary of Defense.—The Secretary of Defense shall ensure that—

(1) the Department of Defense does not purchase a Federal Prison Industries product or service unless a contracting officer of the Department determines that the product or service is comparable to products or services available from the private sector that best meet the Department's needs in terms of price, quality, and time of delivery; and

(2) Federal Prison Industries performs its contractual obligations to the same extent as any other contractor for the Department of Defense.

(d) Market Research Determination Not Subject to Review.—A determination by a contracting officer regarding whether a product or service offered by Federal Prison Industries is comparable to products or services available from the private sector that best meet the Department's needs in terms of price, quality, and time of delivery shall not be subject to review pursuant to section 4124(b) of title 18.

(e) Performance as a Subcontractor.—(1) A contractor or potential contractor of the Department of Defense may not be required to use Federal Prison Industries as a subcontractor or supplier of products or provider of services for the performance of a Department of Defense contract by any means, including means such as—

(A) a contract solicitation provision requiring a contractor to offer to make use of products or services of Federal Prison Industries in the performance of the contract;

(B) a contract specification requiring the contractor to use specific products or services (or classes of products or services) offered by Federal Prison Industries in the performance of the contract; or

(C) any contract modification directing the use of products or services of Federal Prison Industries in the performance of the contract.

(2) In this subsection, the term "contractor", with respect to a contract, includes a subcontractor at any tier under the contract.

(f) Protection of Classified and Sensitive Information.—The Secretary of Defense may not enter into any contract with Federal Prison Industries under which an inmate worker would have access to—

(1) any data that is classified;

(2) any geographic data regarding the location of—

(A) surface and subsurface infrastructure providing communications or water or electrical power distribution;

(B) pipelines for the distribution of natural gas, bulk petroleum products, or other commodities; or

(C) other utilities; or

(3) any personal or financial information about any individual private citizen, including information relating to such person's real property however described, without the prior consent of the individual.

(g) Definitions.—In this section:

(1) The term "competitive procedures" has the meaning given such term in section 3012 of this title.

(2) The term "market research" means obtaining specific information about the price, quality, and time of delivery of products available in the private sector through a variety of means, which may include—

(A) contacting knowledgeable individuals in government and industry;

(B) interactive communication among industry, acquisition personnel, and customers; and

(C) interchange meetings or pre-solicitation conferences with potential offerors.

(Added Pub. L. 107–107, div. A, title VIII, §811(a)(1), Dec. 28, 2001, 115 Stat. 1180, §2410n; amended Pub. L. 107–314, div. A, title VIII, §819(a)(1), Dec. 2, 2002, 116 Stat. 2612; Pub. L. 109–163, div. A, title X, §1056(c)(4), Jan. 6, 2006, 119 Stat. 3439; Pub. L. 110–181, div. A, title VIII, §827(a)(1), Jan. 28, 2008, 122 Stat. 228; renumbered §3905 and amended Pub. L. 116–283, div. A, title XVIII, §§1838(b), 1883(b)(2), Jan. 1, 2021, 134 Stat. 4242, 4294; Pub. L. 117–81, div. A, title XVII, §1701(v)(2)(A), Dec. 27, 2021, 135 Stat. 2154.)

Editorial Notes

Prior Provisions

A prior section 3911 was renumbered section 7311 of this title.

A prior section 3912, act Aug. 10, 1956, ch. 1041, 70A Stat. 225, permitted the Secretary of the Army, upon the officer's request, to retire a commissioned officer of the Regular Army in the Army Nurse Corps or Women's Medical Specialist Corps who has at least 20 years of service computed under former section 3928 of this title, prior to repeal by Pub. L. 85–155, title IV, §401(1), Aug. 21, 1957, 71 Stat. 390.

A prior section 3913, acts Aug. 10, 1956, ch. 1041, 70A Stat. 225; July 12, 1960, Pub. L. 86–616, §4, 74 Stat. 390; Nov. 2, 1966, Pub. L. 89–718, §3, 80 Stat. 1115, provided for retirement of deferred officers not recommended for promotion after twenty years or more of service, except as provided in section 8301 of title 5, prior to repeal by Pub. L. 96–513, title II, §217(a), title VII, §701, Dec. 12, 1980, 94 Stat. 2886, 2955, effective Sept. 15, 1981. See section 627 et seq. of this title.

A prior section 3914 was renumbered section 7314 of this title.

A prior section 3915, acts Aug. 10, 1956, ch. 1041, 70A Stat. 225; Aug. 21, 1967, Pub. L. 85–155, title I, §101(19), 71 Stat. 379; Sept. 30, 1966, Pub. L. 89–609, §1(5), 80 Stat. 852; Nov. 2, 1966, Pub. L. 89–718, §3, 80 Stat. 1115, provided for retirement after 25 years' service of regular majors in Women's Army Corps, Army Nurse Corps, and Army Medical Specialist Corps, prior to repeal by Pub. L. 90–130, §1(13), Nov. 8, 1967, 81 Stat. 376.

A prior section 3916, acts Aug. 10, 1956, ch. 1041, 70A Stat. 226; Aug. 21, 1957, Pub. L. 85–155, title I, §101(21), 71 Stat. 380; Nov. 2, 1966, Pub. L. 89–718, §3, 80 Stat. 1115; Oct. 20, 1978, Pub. L. 95–485, title VIII, §820(i), 92 Stat. 1628, provided for retirement of a promotion-list lieutenant colonel, except as provided by section 8301 of title 5, on 30th day after he completes 28 years of service, with authority for Secretary of the Army to defer retirement in certain cases, prior to repeal by Pub. L. 96–513, title II, §217(a), title VII, §701, Dec. 12, 1980, 94 Stat. 2886, 2955, effective Sept. 15, 1981. See section 633 of this title.

Prior sections 3917 and 3918 were renumbered sections 7317 and 7318 of this title, respectively.

A prior section 3919, act Aug. 10, 1956, ch. 1041, 70A Stat. 226, authorized Secretary of the Army, when he determined that there were too many commissioned officers on active list of Regular Army in any grade who have at least 30 years of service, to convene a board of at least five general officers of Regular Army to make recommendations for retirement and to retire any officer so recommended, prior to repeal by Pub. L. 96–513, title II, §217(a), title VII, §701, Dec. 12, 1980, 94 Stat. 2886, 2955, effective Sept. 15, 1981.

A prior section 3920 was renumbered section 7320 of this title.

A prior section 3921 was renumbered section 7321 of this title.

Another prior section 3921, acts Aug. 10, 1956, ch. 1041, 70A Stat. 226; Nov. 2, 1966, Pub. L. 89–718, §3, 80 Stat. 1115, provided for retirement of a promotion-list colonel, except as provided by section 8301 of title 5, on the 30th day after he completes 30 years of service or the 5th anniversary of the date of his appointment in that regular grade, whichever is later, with authority for the Secretary of the Army to defer retirement in certain cases, prior to repeal by Pub. L. 96–513, title II, §217(a), title VII, §701, Dec. 12, 1980, 94 Stat. 2886, 2955, effective Sept. 15, 1981. See section 634 of this title.

Prior sections 3922 and 3923 were repealed by Pub. L. 96–513, title II, §217(a), title VII, §701, Dec. 12, 1980, 94 Stat. 2886, 2955, effective Sept. 15, 1981.

Section 3922, acts Aug. 10, 1956, ch. 1041, 70A Stat. 227; Nov. 2, 1966, Pub. L. 89–718, §3, 80 Stat. 1115, provided for retirement of a regular grade brigadier general, other than a professor of the United States Military Academy, except as provided by section 8301 of title 5, on the 30th day after he completes 30 years of service or the 5th anniversary of the date of his appointment in that regular grade, whichever is later, with authority for the Secretary of the Army to defer retirement in certain cases. See section 635 of this title.

Section 3923, acts Aug. 10, 1956, ch. 1041, 70A Stat. 227; Nov. 2, 1966, Pub. L. 89–718, §3, 80 Stat. 1115, provided for retirement of a regular grade major general, except as provided by section 8301 of title 5, on the 30th day after he completes 35 years of service or the 5th anniversary of his appointment in that regular grade, whichever is later, with authority for the Secretary of the Army to defer retirement in certain cases. See section 636 of this title.

Prior sections 3924 to 3926 were renumbered sections 7324 to 7326 of this title, respectively.

A prior section 3927, acts Aug. 10, 1956, ch. 1041, 70A Stat. 228; Aug. 21, 1957, Pub. L. 85–155, title I, §101(22), 71 Stat. 380; May 20, 1958, Pub. L. 85–422, §11(a)(4), 72 Stat. 131; Sept. 2, 1958, Pub. L. 85–861, §1(98), 72 Stat. 1488, related to computation of years of service for determining whether a regular commissioned officer should be retired under section 3913, 3915, 3916, 3919, 3921, 3922, or 3923 of this title and for determining the retired pay of officers of the Regular Army retired under section 3913, 3915, 3916, 3919, 3921, 3922, or 3923 of this title, prior to repeal by Pub. L. 96–513, title II, §217(a), title VII, §701, Dec. 12, 1980, 94 Stat. 2886, 2955, effective Sept. 15, 1981. See section 1405 of this title.

A prior section 3928, act Aug. 10, 1956, ch. 1041, 70A Stat. 229, related to computation of years of service of commissioned officers of the Army Nurse Corps or Women's Medical Specialist Corps for the purposes of retirement under former section 3912 of this title, or retirement pay under section 3991 of this title, prior to repeal by Pub. L. 85–155, title IV, §401(1), Aug. 21, 1957, 71 Stat. 390.

A prior section 3929 was renumbered section 7329 of this title.

Prior sections 3961 and 3962 were renumbered sections 7341 and 7342 of this title, respectively.

A prior section 3963 was renumbered section 7343 of this title.

Another prior section 3963, acts Aug. 10, 1956, ch. 1041, 70A Stat. 230; Sept. 2, 1958, Pub. L. 85–861, §1(60), (100), 72 Stat. 1462, 1489; Dec. 12, 1980, Pub. L. 96–513, title V, §502(20), 94 Stat. 2910, related to higher grade for service during certain periods for regular and reserve commissioned officers, prior to repeal by Pub. L. 99–145, title XIII, §1301(b)(2)(A), (C), Nov. 8, 1985, 99 Stat. 735, with such repeal not applicable in the case of a member of the Regular Army described in section 3963 of this title, as such section was in effect on the day before Nov. 8, 1985.

Prior sections 3964 to 3966, 3991, and 3992 were renumbered sections 7344 to 7346, 7361, and 7362 of this title, respectively.

Amendments

2021—Pub. L. 116–283, §1838(b), as amended by Pub. L. 117–81, §1701(v)(2)(A), renumbered section 2410n of this title as this section.

Subsec. (g)(1). Pub. L. 116–283, §1883(b)(2), substituted "section 3012" for "section 2302(2)".

2008—Subsecs. (a), (b). Pub. L. 110–181 added subsecs. (a) and (b) and struck out former subsecs. (a) and (b) which read as follows:

"(a) Market Research.—Before purchasing a product listed in the latest edition of the Federal Prison Industries catalog under section 4124(d) of title 18, the Secretary of Defense shall conduct market research to determine whether the Federal Prison Industries product is comparable to products available from the private sector that best meet the Department's needs in terms of price, quality, and time of delivery.

"(b) Competition Requirement.—If the Secretary determines that a Federal Prison Industries product is not comparable in price, quality, or time of delivery to products available from the private sector that best meet the Department's needs in terms of price, quality, and time of delivery, the Secretary shall use competitive procedures for the procurement of the product or shall make an individual purchase under a multiple award contract. In conducting such a competition or making such a purchase, the Secretary shall consider a timely offer from Federal Prison Industries."

2006—Subsec. (b). Pub. L. 109–163 substituted "competition" for "compeititon" in text.

2002—Subsec. (a). Pub. L. 107–314, §819(a)(1)(A), substituted "Market Research" for "Market Research Before Purchase" in heading and "comparable to products available from the private sector that best meet the Department's needs in terms of price, quality, and time of delivery" for "comparable in price, quality, and time of delivery to products available from the private sector".

Subsec. (b). Pub. L. 107–314, §819(a)(1)(B), added subsec. (b) and struck out heading and text of former subsec. (b). Text read as follows: "If the Secretary determines that a Federal Prison Industries product is not comparable in price, quality, and time of delivery to products available from the private sector, the Secretary shall use competitive procedures for the procurement of the product. In conducting such a competition, the Secretary shall consider a timely offer from Federal Prison Industries for award in accordance with the specifications and evaluation factors specified in the solicitation."

Subsecs. (c) to (g). Pub. L. 107–314, §819(a)(1)(C), added subsecs. (c) to (g).

Statutory Notes and Related Subsidiaries

Effective Date of 2021 Amendment

Amendment by Pub. L. 117–81 applicable as if included in the enactment of title XVIII of Pub. L. 116–283 as enacted, see section 1701(a)(2) of Pub. L. 117–81, set out in a note preceding section 3001 of this title and note below.

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 a note preceding section 3001 of this title.

Effective Date of 2008 Amendment

Pub. L. 110–181, div. A, title VIII, §827(a)(2), Jan. 28, 2008, 122 Stat. 228, as amended by Pub. L. 111–383, div. A, title X, §1075(f)(4), Jan. 7, 2011, 124 Stat. 4376, provided that: "The amendment made by paragraph (1) [amending this section] shall take effect 60 days after the date of the enactment of this Act [Jan. 28, 2008]."

Effective Date of 2002 Amendment

Pub. L. 107–314, div. A, title VIII, §819(a)(2), Dec. 2, 2002, 116 Stat. 2613, provided that: "Paragraph (1) [amending this section] and the amendments made by such paragraph shall take effect as of October 1, 2001."

Effective Date

Pub. L. 107–107, div. A, title VIII, §811(b), Dec. 28, 2001, 115 Stat. 1181, provided that: "Section 2410n of title 10, United States Code [now 10 U.S.C. 3905] (as added by subsection (a)), shall apply to purchases initiated on or after October 1, 2001."

Regulatory Implementation

Pub. L. 107–314, div. A, title VIII, §819(b), Dec. 2, 2002, 116 Stat. 2613, provided that:

"(1) Proposed revisions to the Department of Defense Supplement to the Federal Acquisition Regulation to implement this section shall be published not later than 90 days after the date of the enactment of this Act [Dec. 2, 2002], and not less than 60 days shall be provided for public comment on the proposed revisions.

"(2) Final regulations shall be published not later than 180 days after the date of the enactment of this Act and shall be effective on the date that is 30 days after the date of the publication."

List of Products for Which Federal Prison Industries Has Significant Market Share

Pub. L. 110–181, div. A, title VIII, §827(b), Jan. 28, 2008, 122 Stat. 228, provided that:

"(1) Initial list.—Not later than 60 days after the date of the enactment of this Act [Jan. 28, 2008], the Secretary of Defense shall publish a list of product categories for which Federal Prison Industries' share of the Department of Defense market is greater than 5 percent, based on the most recent fiscal year for which data is available.

"(2) Modification.—The Secretary may modify the list published under paragraph (1) at any time if the Secretary determines that new data require adding a product category to the list or omitting a product category from the list.

"(3) Consultation.—The Secretary shall carry out this subsection in consultation with the Administrator for Federal Procurement Policy."

Subpart E—Research and Engineering

Editorial Notes

Prior Provisions

A prior subpart E "Special Categories of Contracting: Major Defense Acquisition Programs and Major Systems", consisting of chapters 301 to 305, was repealed by Pub. L. 116–283, div. A, title XVIII, §1841(a)(1)(A), Jan. 1, 2021, 134 Stat. 4242.

CHAPTER 301—RESEARCH AND ENGINEERING GENERALLY

SUBCHAPTER I—GENERAL

        

SUBCHAPTER II—AGREEMENTS

        

Editorial Notes

Prior Provisions

A prior chapter 301 "MAJOR DEFENSE ACQUISITION PROGRAMS", consisting of reserved section 4001, was repealed by Pub. L. 116–283, div. A, title XVIII, §1841(a)(1)(A), Jan. 1, 2021, 134 Stat. 4242.

A prior chapter 301 was renumbered chapter 701 of this title.

Amendments

2021—Pub. L. 117–81, div. A, title II, §214(b), title XVII, §1701(e)(4)(B), Dec. 27, 2021, 135 Stat. 1591, 2139, added items 4010 and 4027.

Pub. L. 117–81, div. A, title XVII, §1701(u)(2)(A), Dec. 27, 2021, 135 Stat. 2150, amended Pub. L. 116–283, div. A, title XVIII, §1841(a)(1)(B), Jan. 1, 2021, 134 Stat. 4242, which added this analysis, by adding item for subchapter I, by substituting "[Reserved]" for "Research projects: transactions other than contracts and grants" in item 4002 and for "Authority of the Department of Defense to carry out certain prototype projects" in item 4003, by substituting "Contract authority for development and demonstration of initial or additional prototype units" for "Procurement for experimental purposes" in item 4004, by substituting "[Reserved]" for "Merit-based award of grants for research and development" in item 4008 and for "Technology protection features activities" in item 4009, by striking out item 4015 "Award of grants and contracts to colleges and universities: requirement of competition", and by adding item for subchapter II and items 4021 to 4026.

SUBCHAPTER I—GENERAL

Editorial Notes

Amendments

2021—Pub. L. 116–283, div. A, title XVIII, §1841(c)(1), as added by Pub. L. 117–81, div. A, title XVII, §1701(u)(2)(D), Dec. 27, 2021, 135 Stat. 2151, added subchapter heading. Heading was editorially conformed to the style used in this title.

§4001. Research and development projects

(a) Authority.—The Secretary of Defense or the Secretary of a military department may engage in basic research, applied research, advanced research, and development projects that—

(1) are necessary to the responsibilities of such Secretary's department in the field of research and development; and

(2) either—

(A) relate to weapon systems and other military needs; or

(B) are of potential interest to the Department of Defense.

(b) Authorized Means.—The Secretary of Defense or the Secretary of a military department may perform research and development projects—

(1) by contract, cooperative agreement, or grant, in accordance with chapter 63 of title 31;

(2) through one or more military departments;

(3) by using employees and consultants of the Department of Defense;

(4) by mutual agreement with the head of any other department or agency of the Federal Government;

(5) by transactions (other than contracts, cooperative agreements, and grants) entered into pursuant to section 4021 or 4022 of this title; or

(6) by purchases through procurement for experimental purposes pursuant to section 4023 of this title.

(c) Requirement of Potential Department of Defense Interest.—Funds appropriated to the Department of Defense or to a military department may not be used to finance any research project or study unless the project or study is, in the opinion of the Secretary of Defense or the Secretary of that military department, respectively, of potential interest to the Department of Defense or to such military department, respectively.

(d) Additional Provisions Applicable to Cooperative Agreements.—Additional authorities, conditions, and requirements relating to certain cooperative agreements authorized by this section are provided in sections 4021 and 4026 of this title.

(Added Pub. L. 87–651, title II, §208(a), Sept. 7, 1962, 76 Stat. 523, §2358; amended Pub. L. 97–86, title IX, §910, Dec. 1, 1981, 95 Stat. 1120; Pub. L. 100–370, §1(g)(3), July 19, 1988, 102 Stat. 846; Pub. L. 103–160, div. A, title VIII, §827(a), Nov. 30, 1993, 107 Stat. 1712; Pub. L. 103–355, title I, §1301(a), Oct. 13, 1994, 108 Stat. 3284; Pub. L. 104–201, div. A, title II, §267(c)(2), Sept. 23, 1996, 110 Stat. 2468; Pub. L. 115–91, div. A, title VIII, §862, Dec. 12, 2017, 131 Stat. 1494; renumbered §4001 and amended Pub. L. 116–283, div. A, title XVIII, §1841(b)(1), (2)(A), Jan. 1, 2021, 134 Stat. 4243; Pub. L. 117–81, div. A, title XVII, §1701(u)(2)(B), (C), (F)(i)(I), (II), Dec. 27, 2021, 135 Stat. 2151.)

Historical and Revision Notes
1962 Act

Revised section	Source (U.S. Code)	Source (Statutes at Large)
2358	5:171c(b)(2), (3).	July 26, 1947, ch. 343, §203(b)(2), (3); added Aug. 6, 1958, Pub. L. 85–599, §9(a) (3d and 4th pars.), 72 Stat. 520.

5 U.S.C. 171c(b)(3) is omitted as unnecessary since the authorization for appropriations is implied in 5 U.S.C. 171c(b)(2).

1988 Act

In the existing text of 10 U.S.C. 2358, the bill would in two instances strike the phrase "or his designee" appearing after "Secretary of Defense" (section 1(g)(3)). The change is made for consistency in the Code, and no substantive change is intended. The committee notes that the Secretary of Defense has general authority to delegate functions under 10 U.S.C. 113(d).

Subsection (b) is based on Pub. L. 91–441, title II, §204, Oct. 7, 1970, 84 Stat. 908.

Editorial Notes

Amendments

2021—Pub. L. 116–283, §1841(b)(1), as amended by Pub. L. 117–81, §1701(u)(2)(B), renumbered section 2358 of this title as this section.

Subsec. (b)(5). Pub. L. 116–283, §1841(b)(2)(A)(i), as amended by Pub. L. 117–81, §1701(u)(2)(C), substituted "section 4021 or 4022" for "section 2371 or 2371b".

Subsec. (b)(6). Pub. L. 116–283, §1841(b)(2)(A)(ii), as amended by Pub. L. 117–81, §1701(u)(2)(F)(i)(I), substituted "section 4023" for "section 2373".

Subsec. (d). Pub. L. 116–283, §1841(b)(2)(A)(iii), as amended by Pub. L. 117–81, §1701(u)(2)(F)(i)(II), substituted "sections 4021 and 4026" for "sections 2371 and 2371a".

2017—Subsec. (b)(5), (6). Pub. L. 115–91 added pars. (5) and (6).

1996—Subsec. (d). Pub. L. 104–201 substituted "sections 2371 and 2371a" for "section 2371".

1994—Pub. L. 103–355 amended section generally, inserting reference to development projects in section catchline, and in text specifying that relevant Secretary may perform research and development projects in accordance with chapter 63 of title 31, and adding subsec. (d) relating to additional provisions applicable to cooperative agreements.

1993—Pub. L. 103–160 amended section generally. Prior to amendment, section read as follows:

"(a) In General.—Subject to approval by the President, the Secretary of Defense may engage in basic and applied research projects that are necessary to the responsibilities of the Department of Defense in the field of basic and applied research and development and that relate to weapons systems and other military needs. Subject to approval by the President, the Secretary may perform assigned research and development projects—

"(1) by contract with, or by grant to, educational or research institutions, private businesses, or other agencies of the United States;

"(2) through one or more of the military departments; or

"(3) by using employees and consultants of the Department of Defense.

"(b) Requirement of Potential Military Relationship.—Funds appropriated to the Department of Defense may not be used to finance any research project or study unless the project or study has, in the opinion of the Secretary of Defense, a potential relationship to a military function or operation."

1988—Pub. L. 100–370 designated existing provisions as subsec. (a), inserted heading, struck out "or his designee" after "Secretary of Defense" and "President, the Secretary", and added subsec. (b).

1981—Par. (1). Pub. L. 97–86 substituted "by contract with, or by grant to," for "by contract with".

Statutory Notes and Related Subsidiaries

Change of Name

Pub. L. 115–91, div. A, title II, §214(a), Dec. 12, 2017, 131 Stat. 1325, provided that: "The joint technology office on hypersonics in the Office of the Secretary of Defense is redesignated as the 'Joint Hypersonics Transition Office'. Any reference in a law (other than this section), map, regulation, document, paper, or other record of the United States to the joint technology office on hypersonics shall be deemed to be a reference to the Joint Hypersonics Transition Office."

Effective Date of 2021 Amendment

Amendment by Pub. L. 117–81 applicable as if included in the enactment of title XVIII of Pub. L. 116–283 as enacted, see section 1701(a)(2) of Pub. L. 117–81, set out in a note preceding section 3001 of this title and note below.

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 a note preceding section 3001 of this title.

Effective Date of 1994 Amendment

For effective date and applicability of amendment by Pub. L. 103–355, see section 10001 of Pub. L. 103–355, set out as a note under section 8752 of this title.

National Defense Economic Competition Research Council

Pub. L. 118–159, div. A, title II, §228, Dec. 23, 2024, 138 Stat. 1832, provided that:

"(a) Establishment of Council.—

"(1) In general.—Not later than 90 days after the date of the enactment of this Act [Dec. 23, 2024], the Secretary of Defense shall establish a council to identify, evaluate, and coordinate existing research efforts, or propose new research topics, relating to economic competition activities, such as economic coercion, manipulation, or other uses of economic power to undermine the national defense strategy of the United States and the partners and allies of the United States.

"(2) Designation.—The council established pursuant to paragraph (1) shall be known as the 'National Defense Economic Competition Research Council' (referred to in this section as the 'Council').

"(b) Charter and Mission.—Not later than 120 days after the date of the enactment of this Act, the Secretary of Defense shall issue a charter for the Council with a mission that includes the following:

"(1) Conducting analysis of ongoing or proposed government and academic research relating to economic competition.

"(2) Making proposals for new areas of research to increase understanding of adversarial uses of economic tools in support of military objectives to improve understanding of threats, vulnerabilities, and defensive options to mitigate such threats and vulnerabilities.

"(3) Informing the tools available to the Department of Defense to defend against such economic competition, coercion and manipulation activities, including the use of adversarial capital to acquire technology, real estate, or other infrastructure, or to preemptively deny access by the United States.

"(4) Assessing current data needs or shortfalls impairing understanding of threats and vulnerabilities relating to economic competition.

"(5) Convening groups, which may include academic institutions, nonprofit organizations, commercial entities, other departments and agencies of the Federal Government, and international partners, to better understand regional requirements or inform the understanding of regional partners on the threats and vulnerabilities relating to military objectives as a result of increasing economic competition.

"(6) Carrying out such other activities relating to economic competition as the Secretary deems appropriate.

"(c) Participants.—

"(1) Co-chairs.—The co-chairs of the Council shall be the Under Secretary of Defense for Policy, the Under Secretary of Defense for Research and Engineering, and the Under Secretary of Defense for Acquisition and Sustainment.

"(2) In general.—The co-chairs of the Council shall ensure that the Council includes participation from each of the following:

"(A) The Office of Commercial and Economic Assessment of the Air Force.

"(B) The Office of Expanded Competition.

"(C) The Office of Strategic Capital.

"(D) The Defense Innovation Unit.

"(E) The Strategic Capabilities Office.

"(F) The Joint Warfighting Analysis Center (JWAC).

"(G) The Office of Global Economic and Investment Security [probably should be "Office of Global Investment and Economic Security"] under the Assistant Secretary of Defense for Industrial Base Policy.

"(H) The Office of Naval Research, including ONR-Global.

"(I) The Army Research Office.

"(J) The Air Force Office of Scientific Research.

"(K) The Defense Advanced Research Projects Agency.

"(L) The Office of Strategic Intelligence and Analysis under the Under Secretary of Defense for Research and Engineering.

"(M) The program office of the Minerva Research Initiative.

"(N) Other relevant organizations as determined by the Secretary of Defense.

"(d) Input From the Joint Staff and Combatant Commands.—The Council shall regularly solicit input from the Joint Staff and combatant commands on needs, problem statements, or other topics relating to economic competition activities described in subsection (a)(1) affecting their areas of responsibility.

"(e) Termination.—The Council shall terminate on December 31, 2035."

Quantum Benchmarking Initiative

Pub. L. 118–159, div. A, title II, §231(a), (b), Dec. 23, 2024, 138 Stat. 1837, provided that:

"(a) Initiative Required.—

"(1) In general.—The Director of the Defense Advanced Research Projects Agency shall establish and carry out an initiative to rapidly expand and support efforts to evaluate concepts, development plans, and prototypes, components, and subsystems needed to develop a utility-scale quantum computing capability available to the Department of Defense.

"(2) Designation.—The initiative established pursuant to paragraph (1) shall be known as the 'Quantum Benchmarking Initiative' (referred to in this section as the 'Initiative').

"(b) Elements.—The Initiative shall include the following:

"(1) Activities to broaden existing efforts of the Department of Defense to verify and validate commercial efforts to design and build utility-scale quantum computers, including through collaboration with key partners in the Air Force Research Laboratory, the Office of Strategic Capital, the Defense Innovation Unit, and such other partners and organizations of the Department of Defense as the Director of the Defense Advanced Research Projects Agency deems appropriate.

"(2) Working with the Office of Strategic Capital to establish regular interactions with the venture capital and finance community to help accelerate commercial efforts to develop concepts, plans, prototypes, components, and subsystems needed to develop viable utility-scale quantum computers.

"(3) Working with the Office of the Assistant Secretary of Defense for Industrial Base Policy to connect key performers in fault-tolerant utility-scale quantum computing with support for industrial bases analysis, manufacturing support, and other analysis support to help foster and grow the broader industrial base supporting fault-tolerant utility-scale quantum computing.

"(4) Working with the military departments and other components of the Department of Defense to refine use cases for militarily relevant applications of utility-scale quantum computers."

Pilot Program on Development of Near-Term Use Cases and Demonstration of Artificial Intelligence Toward Biotechnology Applications for National Security

Pub. L. 118–159, div. A, title II, §236, Dec. 23, 2024, 138 Stat. 1840, provided that:

"(a) Pilot Program Required.—The Secretary of Defense shall carry out a pilot program to develop near-term use cases and demonstrations of artificial intelligence for national security-related biotechnology applications.

"(b) Public-private Partnerships.—The Secretary of Defense shall carry out the pilot program required by subsection (a) through one or more public-private partnerships entered into for purposes of the pilot program.

"(c) Laboratory Support and Infrastructure.—In support of a public-private partnership entered into under subsection (b), the Secretary of Defense may, on a reimbursable basis, make available—

"(1) the facilities and services of a Department of Defense laboratory to perform experimentation for biotechnology applications to aid in the validation of artificial intelligence models; and

"(2) computing and data storage infrastructure and capabilities of the Department of Defense.

"(d) Duration.—The pilot program required by subsection (a) shall—

"(1) commence not later than one year after the date of the enactment of this Act [Dec. 23, 2024]; and

"(2) terminate five years after the date of the on which the program commences under paragraph (1).

"(e) Annual Report.—

"(1) In general.—Not later than one year after the date of the enactment of this Act, and not later than December 1 of every other year thereafter until the termination date specified in subsection (d)(2), the Secretary of Defense shall submit to the congressional defense committees [Committees on Armed Services and Appropriations of the Senate and the House of Representatives] a report on the pilot program.

"(2) Contents.—Each report submitted under paragraph (1) shall include, for the period covered by the report, the following:

"(A) An assessment of existing Department of Defense biotechnology-related data resources and how they may be used in the pilot program.

"(B) An assessment of required cybersecurity measures for users under the pilot program.

"(C) A description of any mechanisms developed for collaboration among different parties associated with projects under the pilot program, including intellectual property agreements, funding agreements, and material transfer agreements.

"(D) An assessment of the role that artificial intelligence is playing in developing biotechnology applications for national security purposes, including identification of commercial or academic applications used in the pilot program.

"(E) A description of near-term use cases developed under the pilot program for artificial intelligence-enabled biotechnology applications for national security.

"(F) A description of planned, ongoing, and completed demonstrations or other pilot programs funded under the pilot program required by subsection (a) or otherwise funded by the Department of Defense.

"(G) An assessment of the viability of transitioning technology developed under the pilot program into operational use within the Department, including assessment of—

"(i) the resources needed for further development and scaling of such technology; and

"(ii) the potential benefits of such technology.

"(3) Form.—Each report under paragraph (1) shall be submitted in unclassified form, but may include a classified annex.

"(f) Transition Plan.—Not later than one year before the date on which the pilot program terminates under subsection (d)(2), the Secretary of Defense shall submit to the congressional defense committees a plan that outlines what steps the Department could take to turn the pilot program into an operational program if authorized and funded by Congress to do so. The plan shall include the following:

"(1) A transition timeline.

"(2) Associated projected annual cost of operating the program.

"(3) Additional infrastructure that might be needed, including associated costs.

"(4) A descriptive analysis of the relevant technical, engineering and commercial biotechnology ecosystem, including entities within the Department and external stakeholders.

"(5) Examples of projects from the pilot phase of the program and their outcomes.

"(6) The potential impact to Department capabilities of transitioning the program.

"(7) Any other details deemed necessary to include by the Secretary."

Biotechnology Roadmap

Pub. L. 118–159, div. A, title II, §242, Dec. 23, 2024, 138 Stat. 1845, provided that:

"(a) Roadmap Required.—Not later than one year after the date of the enactment of this Act [Dec. 23, 2024], the Secretary of Defense, in coordination with the Under Secretary of Defense for Research and Engineering, the Under Secretary of Defense for Acquisition and Sustainment, and the Secretaries of the military departments, shall submit to the congressional defense committees [Committees on Armed Services and Appropriations of the Senate and the House of Representatives] a biotechnology roadmap.

"(b) Elements.—In the roadmap required by subsection (a), the Secretary of Defense shall—

"(1) identify the strategic objectives of the Department of Defense relating to biotechnology;

"(2) for each strategic objective, establish specific goals and milestones for the achievement of such objective, including timelines for meeting such goals and milestones;

"(3) in the case of each updated version of the roadmap following submittal of the initial roadmap under subsection (a), include—

"(A) a review of the goals and milestones established under paragraph (2) to ensure such goals and milestones continue to align with strategic objectives under paragraph (1); and

"(B) a description of any goals and milestones that changed as a result of such review;

"(4) identify the biotechnology development needs and priorities for national security applications based on the strategic objectives identified in paragraph (1);

"(5) assess the technology maturity of each priority identified pursuant to paragraph (4);

"(6) describe funding sources for each priority identified pursuant to paragraph (4), including both current sources and sources covered by the future-years defense program submitted to Congress under section 221 of title 10, United States Code;

"(7) provide a plan, timeline, and metrics for research, development, testing, and evaluation activities for the priorities identified pursuant to paragraph (4);

"(8) assess opportunities for rapid acquisition and fielding of biotechnology in support of the priorities identified pursuant to paragraph (4);

"(9) identify and describe the role of each organization of the Department with responsibilities relating to biotechnology under the strategy, including investment priorities for the Office of Strategic Capital and the Defense Advanced Research Projects Agency;

"(10) assess the overall risk to the security of the United States of the biotechnology efforts covered by the strategy;

"(11) analyze any requirements of the Federal Government that hinder the ability of the Department to advance and use biotechnology;

"(12) provide for the development and support of the biotechnology workforce of the Department, including personnel with responsibilities relating directly to biotechnology and personnel who indirectly support the biotechnology efforts of the Department such as personnel involved program management, acquisition, investment, and legal matters;

"(13) with respect to the biotechnology workforce described in paragraph (12)—

"(A) identify the total number of biotechnology positions required to support the objectives of the roadmap—

"(i) as of the date of the roadmap; and

"(ii) over the periods of five and 10 years following such date;

"(B) indicate the number of such positions that have been filled as of the date of the roadmap;

"(C) describe the positions included in the biotechnology workforce, including a description of—

"(i) the role of each position in supporting the objectives under paragraph (1); and

"(ii) the qualifications required for each position, including any qualifications relating to seniority level, education, training, and security clearances;

"(D) identify any challenges affecting the ability of the Department to develop the biotechnology workforce and propose solutions to those challenges;

"(E) assess whether the codes used to define positions and roles within the workforce of the Department adequately cover the range of positions and personnel that comprise the biotechnology workforce, such as personnel in research, engineering, and testing;

"(F) identify mechanisms to enable the Department to access outside expertise relating to biotechnology, including mechanisms to assemble a pool of outside experts who have been prequalified (including by obtaining any necessary security clearances) to provide advice and assistance to the Department on matters relating to biotechnology on an as-needed basis; and

"(G) assess whether personnel occupying existing positions in the Department could be used to meet biotechnology workforce needs with additional training and, if so, the nature and scope of the training required; and

"(14) address collaboration between the Department and international partners to advance research on biotechnology, which shall include—

"(A) a description of any international partnerships under which the United States is collaborating with partners to conduct biotechnology research and development for defense purposes, including a description of any investment priorities for the Office of Strategic Capital and the Defense Advanced Research Projects Agency relating to such partnerships;

"(B) a description of any new international partnerships that may be entered into, or existing partnerships that may be modified, to provide for such collaboration; and

"(C) identification of any challenges affecting the ability of the Department engage in such collaboration with international partners, including—

"(i) any limitations on co-investments within international partnerships;

"(ii) any United States export controls or other technology protections that hinder information sharing within such partnerships; and

"(iii) any other challenges that may prevent the full utilization of such partnerships for such collaboration.

"(c) Biennial Updates.—Not less frequently than once every two years following the submittal of the initial roadmap under subsection (a) until the termination date specified in subsection (h), the Secretary shall—

"(1) review and update the roadmap; and

"(2) submit an updated version of the roadmap to the congressional defense committees.

"(d) Form.—Each version of the roadmap required to be submitted under this section may be submitted in classified form, but if so submitted, shall include an unclassified executive summary.

"(e) Public Availability.—On annual basis, the Secretary shall make an unclassified version of the most recent roadmap submitted under this section available on a publicly accessible website of the Department of Defense.

"(f) GAO Evaluation and Report.—Not later than 180 days after the date on which the Secretary of Defense submits the initial roadmap pursuant to subsection (a), the Comptroller General of the United States shall—

"(1) complete an evaluation of the roadmap; and

"(2) submit to the congressional defense committees a report on the findings of the Comptroller General with respect to such evaluation.

"(g) Biotechnology Defined.—In this section, the term 'biotechnology' means the application of science and technology to living organisms and to parts, products, and models of such organisms to alter living or non-living materials for the production of knowledge, goods, or services.

"(h) Sunset.—This section shall terminate on the date that is 10 years after the date of the enactment of this Act [Dec. 23, 2024]."

Artificial Intelligence Human Factors Integration Initiative

Pub. L. 118–159, div. A, title XV, §1531, Dec. 23, 2024, 138 Stat. 2142, provided that:

"(a) Initiative Required.—

"(1) In general.—The Under Secretary of Defense for Research and Engineering, in coordination with the Under Secretary of Defense for Acquisition and Sustainment and the Chief Digital and Artificial Intelligence Officer of the Department of Defense, shall establish an initiative—

"(A) to improve the human usability of artificial intelligence systems and information derived from such systems through the application of cognitive ergonomics techniques; and

"(B) to improve the human usability and cognitive effectiveness of artificial intelligence systems adopted by the Department of Defense by ensuring that design tools and metrics are available for artificial intelligence and machine learning programs that ensure human factors considerations are included for such systems.

"(2) Designation.—The initiative established pursuant to paragraph (1) shall be known as the 'Artificial Intelligence Human Factors Integration Initiative' (in this section the 'Initiative').

"(b) Briefing.—Not later than one year after the date of the enactment of this Act [Dec. 23, 2024], the Under Secretary of Defense for Research and Engineering, the Under Secretary of Defense for Acquisition and Sustainment, and the Chief Digital and Artificial Intelligence Officer of the Department of Defense shall jointly brief the Committee on Armed Services of the Senate and the Committee on Armed Services of the House of Representatives on the following:

"(1) Existing research and development work within the Department of Defense laboratories relating to human-machine teaming, human-centered design, cognitive load, cognitive ergonomics, and similar topics that are currently being used or could be used to inform or enhance Department personnel usability of artificial intelligence systems and artificial intelligence-derived information.

"(2) Identification of gaps in research with respect to interactions of personnel of the Department with artificial intelligence systems in warfighting and nonwarfighting environments that may necessitate additional research within the Federal Government, industry, or academia.

"(3) Identification of relevant tools, methodologies, testing processes or systems, and evaluation metrics that may be of use to the Department in improving the cognitive ergonomic and human usability features of artificial intelligence systems for personnel of the Department.

"(c) Plan.—Not later than 90 days after the date on which the briefing required by subsection (b) is provided, the Under Secretary of Defense for Research and Engineering, the Under Secretary of Defense for Acquisition and Sustainment, and the Chief Digital and Artificial Intelligence Officer of the Department of Defense shall jointly develop and implement a plan to—

"(1) work with the military departments (as defined in section 101(a) of title 10, United States Code) and other components of the Department to ensure human factors and human systems integration elements are considered early in the development or evaluation process with respect to the procurement, adoption, or use of artificial intelligence systems or artificial intelligence-derived information;

"(2) convene research meetings or other forums to coordinate cognitive ergonomics research or related research challenges with a broad community of academic, commercial, and international partners;

"(3) work with the Chief Digital and Artificial Intelligence Officer of the Department of Defense to review commercial toolsets to assess the level of human factors integration investment of such commercial toolsets; and

"(4) develop guidance based on the research and development work identified pursuant to subsection (b)(1) regarding how to create a framework or taxonomy for characterizing the exercise of appropriate levels of human judgment within Department of Defense Directive 3000.09 (relating to Autonomy in Weapons Systems), or successor directive, for artificial intelligence programs in the Department.

"(d) Rule of Construction.—Nothing in this section shall be construed to prohibit or otherwise limit the authority of the Secretary of Defense to research, develop, improve, or acquire any weapon system or other capability that is enabled, empowered, enhanced, or improved by artificial intelligence, machine learning, or a large language model."

Advanced Computing Infrastructure To Enable Advanced Artificial Intelligence Capabilities

Pub. L. 118–159, div. A, title XV, §1532, Dec. 23, 2024, 138 Stat. 2144, provided that:

"(a) In General.—The Secretary of Defense shall establish a program, or designate an existing program, to meet the testing and processing requirements for next generation advanced artificial intelligence capabilities.

"(b) Development and Expansion of High-performance Computing Infrastructure.—

"(1) In general.—Under the program established or designated under subsection (a), the Secretary of Defense shall expand the infrastructure of the Department of Defense for development and deployment of military applications of high-performance computing and artificial intelligence capabilities that are located at installations of the Department or accessible through commercial cloud or hybrid-cloud environments.

"(2) Artificial intelligence applications.—(A) The Secretary of Defense shall ensure that a portion of the infrastructure added pursuant to paragraph (1) is—

"(i) dedicated to providing access to modern artificial intelligence accelerators for training, fine-tuning, modifying, and deploying large artificial intelligence systems; and

"(ii) configured in accordance with industry best practices.

"(B) In carrying out subparagraph (A), the Secretary of Defense shall ensure, to the extent practical, that the Department of Defense does not use the portion of the infrastructure described in such subparagraph for the development of new artificial intelligence systems to the extent that such infrastructure is duplicative of readily available commercial or open source products or services that meet or are reasonably capable of meeting the physical and data security standards of the Department.

"(c) High-performance Computing Roadmap.—

"(1) In general.—Under the program established or designated under subsection (a), the Secretary of Defense shall develop a roadmap that describes the high-performance computing infrastructure needed for the Department of Defense to research, test, develop, and evaluate advanced artificial intelligence applications projected over the period covered by the future-years defense program.

"(2) Assessment.—The roadmap required by paragraph (1) shall include assessments of the following:

"(A) The anticipated processing for advanced artificial intelligence applications of the Department of Defense during the period covered by the roadmap, including the computing needs associated with the development of such advanced artificial intelligence applications.

"(B) The physical and data security standards required for the infrastructure for the research, development, testing, and evaluation of advanced artificial intelligence applications, including data handling requirements.

"(C) The evaluation, milestones, and resourcing needs to maintain and expand the computing infrastructure necessary for the computing needs described in subparagraph (A).

"(d) Artificial Intelligence System Development.—

"(1) In general.—Using the infrastructure added under the program established or designated under subsection (a), the Secretary of Defense shall develop advanced artificial intelligence systems that have general-purpose military applications for multiple data formats, including text, audio, and graphical.

"(2) Training of systems.—The Secretary of Defense shall ensure that advanced artificial intelligence systems developed pursuant to paragraph (1) are trained using datasets curated by the Department of Defense using general, openly or commercially available sources of such data, or data owned by the Department, depending on the appropriate use case. Such systems may use openly or commercially available artificial intelligence systems, including those available through infrastructure located at installations of the Department or cloud or hybrid-cloud environments, for development or fine-tuning.

"(e) Coordination and Duplication.—In establishing or designating the program under subsection (a), the Secretary of Defense shall consult with the Secretary of Energy to ensure that none of the activities carried out under this section are duplicative of any activity of a research entity of the Department of Energy, including the following:

"(1) The National Laboratories.

"(2) The Advanced Scientific Computing Research program.

"(3) The Advanced Simulation and Computing program."

Pilot Program on Near-Term Quantum Computing Applications

Pub. L. 118–31, div. A, title II, §231, Dec. 22, 2023, 137 Stat. 203, provided that:

"(a) Pilot Program.—The Secretary of Defense may carry out a pilot program under which the Secretary, in partnership with the entities specified in subsection (b), establishes and operates a program that enables organizations of the Department of Defense, including the Armed Forces, to test and evaluate how quantum and quantum-hybrid applications may be used—

"(1) to solve technical problems and research challenges identified under section 234(e) of the John S. McCain National Defense Authorization Act for Fiscal Year 2019 (Public Law 115–232; 10 U.S.C. 4001 note) and such other near-term technical problems and challenges facing the Department and the Armed Forces as the Secretary may identify; and

"(2) to provide capabilities needed by the Department and the Armed Forces in the near-term.

"(b) Entities Specified.—The Secretary of Defense shall seek to carry out the pilot program under subsection (a) in partnership with—

"(1) a federally funded research and development center, university affiliated research center, center of excellence, or similar entity; and

"(2) one or more private-sector entities with expertise in quantum computing and quantum information science.

"(c) Activities.—Under the pilot program, the Secretary of Defense, in partnership with the entities specified in subsection (b), may—

"(1) convene a group of experts and organizations to identify and articulate challenges faced by the Department of Defense, including the Armed Forces, that have the potential to be addressed by quantum and quantum-hybrid applications;

"(2) develop and mature demonstrations, proofs of concept, pilot programs, and other measures to address the challenges identified under paragraph (1) using quantum and quantum-hybrid applications;

"(3) develop pathways through which successful demonstrations, proofs of concept, pilot programs, and other measures developed and matured under paragraph (2) may be transitioned to more advanced stages of research and development or into operational use within the Department;

"(4) ensure that any quantum-based or quantum-hybrid application-based solutions identified under the program are capable of development and deployment within the period covered by the most recent future-years defense program submitted to Congress under section 221 of title 10, United States Code (as of the time of the pilot program);

"(4) [sic] assess the utility of commercial quantum and quantum-hybrid applications for meeting the near-term needs of warfighters; and

"(5) seek to build and strengthen relationships between the Department of Defense, academic institutions, small businesses, and nontraditional defense contractors (as defined in section 3014 of title 10, United States Code) in the technology industry that may have unused or underused solutions to specific operational challenges of the Department relating to quantum and quantum-hybrid applications.

"(d) Briefing and Reports.—

"(1) Interim briefing.—Not later than 30 days before commencing the pilot program under subsection (a), the Secretary of Defense shall provide to the Committees on Armed Services of the Senate and the House of Representatives a briefing that—

"(A) identifies the entities the Secretary intends to partner with for the purposes of carrying out the pilot program, including—

"(i) any entities specified in subsection (b);

"(ii) any of the Armed Forces; and

"(iii) any other departments and agencies of the Federal Government with pre-existing quantum technology research efforts; and

"(B) describes the plan of the Secretary for developing and operating the program.

"(2) Annual report.—By December 1 of each year in which the pilot program under subsection (a) is carried out, the Secretary of Defense shall submit to the Committees on Armed Services of the Senate and the House of Representatives a report that includes—

"(A) a description of the problem sets and capabilities that were evaluated by organizations of the Department of Defense under the program;

"(B) an explanation of whether and to what extent the program resulted in the identification of potential solutions based on quantum and quantum-hybrid applications;

"(C) any potential barriers to the use of quantum and quantum-hybrid applications to solve near-term problems for the Department of Defense, including the Armed Forces; and

"(D) recommendations regarding how the Department of Defense can better leverage and deploy quantum and quantum-hybrid applications to address near-term military applications and operational needs.

"(e) Termination.—The authority to carry out the pilot program under subsection (a) shall terminate on September 30, 2026.

"(f) Definition.—In this section, the term 'quantum and quantum-hybrid applications' means algorithms and applications which use quantum mechanics through quantum processing units, including—

"(1) quantum-classical hybrid applications which are applications that use both quantum computing and classical computing hardware systems;

"(2) annealing and gate systems; and

"(3) all qubit modalities (including superconducting, trapped-ion, neutral atom, and photonics)."

Pilot Program on Optimization of Aerial Refueling and Fuel Management in Contested Logistics Environments Through Use of Artificial Intelligence

Pub. L. 118–31, div. A, title III, §346, Dec. 22, 2023, 137 Stat. 226, provided that:

"(a) Design of Pilot Program.—

"(1) Design.—Not later than 90 days after the date of the enactment of this Act [Dec. 22, 2023], the Chief Digital and Artificial Intelligence Officer of the Department of Defense, in collaboration with the Under Secretary of Defense for Acquisition and Sustainment and the Chief of Staff of the Air Force, shall design a pilot program to optimize the logistics of aerial refueling and fuel management in the context of contested logistics environments through the use of advanced digital technologies and artificial intelligence (in this section referred to as the 'pilot program').

"(2) Coordination and consultation.—In designing the pilot program, the Chief Digital and Artificial Intelligence Officer shall—

"(A) coordinate with the Commander of the United States Transportation Command and the Commander of the United States Indo-Pacific Command regarding the activities to be carried out under the pilot program, to ensure the pilot program will align with existing operational requirements; and

"(B) seek to consult with relevant experts in the fields of artificial intelligence, logistics, aviation, and fuel management.

"(b) Objectives.—The objectives of the pilot program shall include the following:

"(1) Assessing the feasibility and effectiveness of artificial intelligence-driven approaches in enhancing aerial refueling operations and fuel management processes compared to existing mission planning processes executed by members of the Air Force with relevant training.

"(2) Identifying opportunities to reduce fuel consumption, decrease operational costs, and minimize the environmental impact of fuel management while maintaining military readiness.

"(3) Evaluating the interoperability and compatibility of artificial intelligence-enabled systems with the existing logistics infrastructure of the Department of Defense.

"(4) Enhancing situational awareness and decision-making capabilities through real-time data analysis and predictive modeling.

"(5) Addressing potential challenges and risks associated with the integration of artificial intelligence and other advanced digital technologies, including challenges and risks involving cybersecurity concerns.

"(c) Commencement.—Not later than one year after the date of the enactment of this Act, the Chief Digital and Artificial Intelligence Officer, in collaboration with the Under Secretary of Defense for Acquisition and Sustainment and the Chief of Staff of the Air Force, shall commence the pilot program.

"(d) Report.—Not later than one year after the date of the enactment of this Act, the Chief Digital and Artificial Intelligence Officer shall submit to the Committees on Armed Services of the House of Representatives and the Senate a report on—

"(1) the design of the pilot program under subsection (a);

"(2) the status of any efforts underway to commence the pilot program under subsection (c); and

"(3) any planned future activities to be carried out under the pilot program to test expected outcomes regarding improved efficiencies or other benefits that may be derived from artificial intelligence-driven approaches to aerial refueling operations and fuel management.

"(e) Termination.—The authority to conduct the pilot program under this section shall terminate on January 1, 2027."

Control and Management of Department of Defense Data

Pub. L. 118–31, div. A, title XV, §1521(a), Dec. 22, 2023, 137 Stat. 551, provided that: "The Chief Digital and Artificial Intelligence Officer of the Department of Defense may access and control, on behalf of the Secretary of Defense, any data collected, acquired, accessed, or used by a component (as such term is defined in section 1513 of the James M. Inhofe National Defense Authorization Act for Fiscal Year 2023 (Public Law 117–263; 10 U.S.C. 4001 note)), consistent with such section."

Artificial Intelligence Bug Bounty Programs

Pub. L. 118–31, div. A, title XV, §1542, Dec. 22, 2023, 137 Stat. 573, provided that:

"(a) Program for Foundational Artificial Intelligence Products Being Integrated Within Department of Defense.—

"(1) Development required.—Not later than 180 days after the date of the enactment of this Act [Dec. 22, 2023] and subject to the availability of appropriations, the Chief Digital and Artificial Intelligence Officer of the Department of Defense shall develop a bug bounty program for foundational artificial intelligence models being integrated into the missions and operations of the Department of Defense.

"(2) Collaboration.—In developing the program under paragraph (1), the Chief Digital and Artificial Intelligence Officer may collaborate with the heads of other Federal departments and agencies with expertise in cybersecurity and artificial intelligence.

"(3) Implementation authorized.—The Chief Digital and Artificial Intelligence Officer may carry out the program developed under subsection (a).

"(4) Contracts.—The Secretary of Defense shall ensure, as may be appropriate, that whenever the Secretary enters into any contract, such contract allows for participation in the bug bounty program developed under paragraph (1).

"(5) Rule of construction.—Nothing in this subsection shall be construed to require—

"(A) the use of any foundational artificial intelligence model; or

"(B) the implementation of the program developed under paragraph (1) for the purpose of the integration of a foundational artificial intelligence model into the missions or operations of the Department of Defense.

"(b) Briefing.—Not later than one year after the date of the enactment of this Act, the Chief Digital and Artificial Intelligence Officer shall provide to the congressional defense committees [Committees on Armed Services and Appropriations of the Senate and the House of Representatives] a briefing on—

"(1) the development and implementation of bug bounty programs the Chief Digital and Artificial Intelligence Officer considers relevant to the matters covered by this section; and

"(2) long-term plans of the Chief Digital and Artificial Intelligence Officer with respect to such bug bounty programs.

"(c) Foundational Artificial Intelligence Model Defined.—In this section, the term 'foundational artificial intelligence model' means an adaptive generative model that is trained on a broad set of unlabeled data sets that may be used for different tasks with minimal fine-tuning."

Plans, Strategies, and Other Matters Relating to Artificial Intelligence

Pub. L. 118–31, div. A, title XV, §1544, Dec. 22, 2023, 137 Stat. 574, provided that:

"(a) In General.—The Secretary of Defense, in consultation with the Deputy Secretary of Defense, shall—

"(1) establish and document procedures, including timelines, for the periodic review of the 2018 Department of Defense Artificial Intelligence Strategy, or any successor strategy, and associated annexes of the military departments to assess the implementation of such strategy and whether any revision is necessary;

"(2) issue Department of Defense-wide guidance that defines outcomes of near-term and long-term strategies and plans relating to—

"(A) the adoption of artificial intelligence;

"(B) the adoption and enforcement of policies on the ethical use of artificial intelligence systems; and

"(C) the identification and mitigation of bias in artificial intelligence algorithms;

"(3) issue Department-wide guidance regarding methods to monitor accountability for artificial intelligence-related activity, including artificial intelligence performance indicators and metrics;

"(4) develop a strategic plan for the development, use, and cybersecurity of generative artificial intelligence, including a policy governing the use of, and the defense against adversarial use of, generative artificial intelligence;

"(5) assess technical workforce needs across the future years defense plan to support the continued development of artificial intelligence capabilities, including recruitment and retention policies and programs;

"(6) assess the availability and adequacy of the basic artificial intelligence training and education curricula, including efforts developed or authorized pursuant to section 256 of the National Defense Authorization Act for Fiscal Year 2020 (133 Stat. 1290; Public Law 116–92), available to the broader civilian workforce of the Department and military personnel to promote artificial intelligence literacy to the nontechnical workforce and senior leadership with responsibilities adjacent to artificial intelligence technical development;

"(7) develop and issue a timeline and guidance for the Chief Digital and Artificial Intelligence Officer of the Department and the Secretaries of the military departments to establish a common lexicon for artificial intelligence-related activities;

"(8) develop and implement a plan to protect and secure the integrity, availability, and privacy of artificial intelligence systems and models, including large language models, data libraries, data repositories, and algorithms, in training, development, and production environments;

"(9) ensure the fulfilment of the statutory requirement to establish data repositories under section 232 of the National Defense Authorization Act for Fiscal Year 2022 (Public Law 117–81; 10 U.S.C. 4001 note), as amended by section 212 of the National Defense Authorization Act for Fiscal Year 2023 (Public Law 117–263; 136 Stat. 2466);

"(10) develop and implement a plan—

"(A) to identify commercially available and relevant large language models; and

"(B) to make such models available, as appropriate, on classified networks;

"(11) develop a plan to defend the personnel, organizations, and systems of the Department against adversarial artificial intelligence, including an identification of organizations within the Department capable of providing to cyber red teams of the Department capabilities for operational and developmental needs;

"(12) develop and implement a policy for use by contracting officials to protect the intellectual property of commercial entities that provide artificial intelligence algorithms to a data repository specified in paragraph (9), including a policy for how to address data rights in situations in which governmental and commercial intellectual property may be mixed when such artificial intelligence algorithms are deployed in an operational environment;

"(13) issue guidance and directives governing how the Chief Digital and Artificial Intelligence Officer of the Department shall exercise authority to access, control, and maintain, on behalf of the Secretary, data collected, acquired, accessed, or used by components of the Department consistent with section 1513 of the James M. Inhofe National Defense Authorization Act for Fiscal Year 2023 (Public Law 117–263; 10 U.S.C. 4001 note); and

"(14) clarify guidance on the instances for, and the role of human intervention and oversight in, the exercise of artificial intelligence algorithms for use in the generation of offensive or lethal courses of action for tactical operations.

"(b) Ethical and Responsible Artificial Intelligence.—

"(1) Process.—The Secretary of Defense, acting through the Chief Digital and Artificial Intelligence Officer, shall develop and implement a process—

"(A) to assess whether a given artificial intelligence technology used by the Department of Defense is in compliance with a test, evaluation, verification, and validation framework that—

"(i) operationalizes responsible artificial intelligence principles; and

"(ii) is validated and selected by the Chief Digital and Artificial Intelligence Officer for purposes of this subsection;

"(B) to report and remediate any artificial intelligence technology that is determined not to be in compliance with the framework selected pursuant to subparagraph (A); and

"(C) in a case in which efforts to remediate such technology have been unsuccessful, to discontinue the use of the technology until effective remediation is achievable.

"(2) Additional requirements.—In developing and implementing the process under paragraph (1), the Secretary of Defense shall—

"(A) develop clear criteria against which the compliance of an artificial intelligence technology with the framework selected pursuant to subparagraph (A) of such paragraph may be assessed under such subparagraph, taking into consideration—

"(i) similar criteria previously developed by the Secretary; and

"(ii) the identification of potential vulnerabilities in systems and infrastructure of the Armed Forces that could be exploited by adversarial artificial intelligence applications used by the People's Republic of China, the Russian Federation, or other foreign adversaries;

"(B) take steps to integrate such process across the elements of the Department of Defense, including the combatant commands; and

"(C) provide information on such process to members of the Armed Forces and civilian personnel of the Department that are—

"(i) responsible for developing and deploying artificial intelligence technologies;

"(ii) end users of such technologies, including members of the Army, Navy, Air Force, Marine Corps, or Space Force who use such technologies in military operations; or

"(iii) otherwise determined relevant by the Secretary.

"(c) Deadline; Briefing.—

"(1) Deadline.—The Secretary shall complete the requirements under this section by not later than 120 days after the date of enactment of this Act [Dec. 22, 2023].

"(2) Briefing.—Not later than 150 days after the date of the enactment of this Act, the Secretary shall provide to the congressional defense committees [Committees on Armed Services and Appropriations of the Senate and the House of Representatives] a briefing on the implementation of this section."

Pilot Program To Facilitate the Development of Battery Technologies for Warfighters

Pub. L. 117–263, div. A, title II, §225, Dec. 23, 2022, 136 Stat. 2484, provided that:

"(a) Establishment.—

"(1) In general.—The Secretary of Defense may establish and carry out a pilot program to assess the feasibility and advisability of providing support to battery producers—

"(A) to facilitate the research and development of safe and secure battery technologies for existing and new or novel battery chemistry configurations, including through the research and development of new or updated manufacturing processes and technologies;

"(B) to assess commercial battery offerings within the marketplace for viability and utility for warfighter applications; and

"(C) to transition battery technologies, including technologies developed under other pilot programs, prototype projects, or other research and development programs, from the prototyping phase to manufacturing production.

"(2) Designation.—The pilot program established under paragraph (1) shall be known as the 'Warfighter Electric Battery Transition Project' (referred to in this section as the 'Project').

"(3) Administration.—The Under Secretary of Defense for Research and Engineering shall administer the Project.

"(b) Grants, Contracts, and Other Agreements.—The Secretary of Defense may carry out the Project through the award of support, as described in subsection (a)(1), in the form of grants to, or contracts or other agreements with, battery producers.

"(c) Coordination.—The Secretary of Defense shall ensure that activities under the Project are coordinated with the Strategic Environmental Research and Development Program under section 2901 of title 10, United States Code.

"(d) Use of Grant and Contract Amounts.—A battery producer who receives a grant, contract, or other agreement under the Project may use the amount of the grant, contract, or other agreement to carry out one or more of the following activities:

"(1) Conducting research and development to validate new or novel battery chemistry configurations, including through—

"(A) experimentation;

"(B) prototyping;

"(C) testing;

"(D) adapting battery technology to integrate with other technologies and systems; or

"(E) addressing manufacturing or other production challenges.

"(2) Providing commercially available battery technologies to each Secretary of a military department and the commanders of the combatant commands to support utility assessments or other testing by warfighters.

"(3) Expanding, validating, or assessing battery recycling capabilities that may provide operational utility to the Department of Defense.

"(4) Building and strengthening relationships of the Department of Defense with nontraditional defense contractors in the technology industry that may have unused or underused solutions to specific operational challenges of the Department relating to battery technology.

"(e) Priority of Awards.—In awarding grants, contracts, or other agreements under the Project, the Secretary shall give preference to battery producers that meet one or more of the following criteria:

"(1) The producer manufactures, designs, or develops battery cells, packs, modules, or other related capabilities in the United States.

"(2) The producer manufactures, designs, or develops battery cells, packs, modules, or other related capabilities in the national technology and industrial base (as defined in section 4801 of title 10, United States Code).

"(3) The technology made available by the producer provides modularity to support diverse applications.

"(4) The technology made available by the producer facilitates safety in tactical and combat applications by using battery chemistries and configurations that reduce thermal runaway and minimize oxygen liberation.

"(5) The producer demonstrates new or novel battery chemistry configurations, safety characteristics, or form-factor configurations.

"(6) The producer facilitates the domestic supply chain for raw materials needed for battery production.

"(7) The producer offers battery-related commercial products or commercial services.

"(f) Planning, Reporting and Data Collection.—

"(1) Plan required before implementation.—

"(A) In general.—The Secretary of Defense may not commence the Project until the Secretary has completed a plan for the implementation of the Project.

"(B) Elements.—The plan under subparagraph (A) shall provide for—

"(i) collecting, analyzing, and retaining Project data;

"(ii) developing and sharing best practices for achieving the objectives of the Project;

"(iii) identification of any policy or regulatory impediments inhibiting the execution of the Project; and

"(iv) sharing results from the Project across the Department of Defense and with other departments and agencies of the Federal Government and Congress.

"(C) Submittal to congress.—Not later than 180 days after the date of the enactment of this Act [Dec. 23, 2022], the Secretary of Defense shall submit to the congressional defense committees [Committees on Armed Services and Appropriations of the Senate and the House of Representatives] the implementation plan developed under subparagraph (A).

"(2) Final report.—Not later than one year after the date on which the Project terminates under subsection (g), the Secretary of Defense shall submit to the congressional defense committees a final report on the results of the Project. Such report shall include—

"(A) a summary of the objectives achieved by the Project; and

"(B) recommendations regarding the steps that may be taken to promote battery technologies that are not dependent on foreign competitors to meet the needs of the Armed Forces.

"(g) Termination.—The authority to carry out the Project shall terminate on December 31, 2028."

Plan for Investments To Support the Development of Novel Processing Approaches for Defense Applications

Pub. L. 117–263, div. A, title II, §233, Dec. 23, 2022, 136 Stat. 2486, provided that:

"(a) Investment Plans Required.—Not later than November 1, 2023, and not less frequently than once every three years thereafter until December 31, 2035, the Secretary of Defense shall submit to the congressional defense committees [Committees on Armed Services and Appropriations of the Senate and the House of Representatives] a plan for making investments to support the development of novel processing approaches for defense applications.

"(b) Elements.—Each investment plan required by subsection (a) shall—

"(1) identify any investments the Secretary has made, and any future investments the Secretary intends to make, in research and technology development to support the use and fielding of novel processing approaches for defense applications;

"(2) identify any investments the Secretary has made, and any future investments the Secretary intends to make, to accelerate the development of novel processing approaches for defense applications, including investments in—

"(A) personnel and workforce capabilities;

"(B) facilities and infrastructure to host systems utilizing novel processing approaches;

"(C) algorithm developments necessary to expand the functionality of each novel processing approach;

"(D) other Federal agencies and federally funded laboratories; and

"(E) appropriate international and commercial sector organizations and activities;

"(3) describe mechanisms to coordinate and leverage investments in novel processing approaches within the Department and with non-Federal partners;

"(4) describe the technical goals to be achieved and capabilities to be developed under the plan; and

"(5) include recommendations for such legislative or administration actions as may support the effective execution of the investment plan.

"(c) Form.—Each plan submitted under subsection (a) shall be submitted in such form as the Secretary considers appropriate, which may include classified, unclassified, and publicly releasable formats.

"(d) Novel Processing Approaches Defined.—In this section, the term 'novel processing approaches' means—

"(1) emerging techniques in computation, such as biocomputing, exascale computing, utility scale quantum computing; and

"(2) associated algorithm and hardware development needed to implement such techniques."

Strategy and Plan for Fostering and Strengthening the Defense Innovation Ecosystem

Pub. L. 117–263, div. A, title II, §236, Dec. 23, 2022, 136 Stat. 2490, as amended by Pub. L. 118–159, div. B, title XXVIII, §2871(c)(3), Dec. 23, 2024, 138 Stat. 2281, provided that:

"(a) Strategy and Implementation Plan Required.—Not later than 180 days after the date of the enactment of this Act [Dec. 23, 2022], the Secretary of Defense, acting through the Under Secretary of Defense for Research and Engineering, shall develop—

"(1) a strategy fostering and strengthening the defense innovation ecosystem; and

"(2) a plan for implementing such strategy.

"(b) Purposes.—

"(1) Strategy.—The purpose of the strategy required by subsection (a)(1) is to provide a framework for identifying, assessing, and tracking innovation ecosystems that are beneficial to advancing the defense, national security, and warfighting missions of the Department of Defense.

"(2) Implementation plan.—The purpose of the implementation plan required by subsection (a)(2) is to provide—

"(A) concrete steps and measures of effectiveness to gauge the effect of the innovation ecosystems described in paragraph (1) on the Department; and

"(B) a means for assessing the effectiveness of the strategy developed under subsection (a)(1), including the approaches taken by the Department to grow, foster, and sustain such innovation ecosystems.

"(c) Elements.—The strategy and the implementation plan required by subsection (a) shall include the following elements:

"(1) A process for defining, assessing, and selecting innovation ecosystems with potential to provide benefit to the Department of Defense.

"(2) Metrics for measuring the performance and health of innovation ecosystems being supported by the Department, including identification of criteria to determine when to support or cease supporting identified ecosystems.

"(3) Identification of the authorities and Department of Defense research, development, test, and evaluation assets that can be used to identify, establish, sustain, and expand innovation ecosystems.

"(4) For each innovation ecosystem supported by the Department—

"(A) a description of the core competencies or focus areas of the ecosystem;

"(B) identification of any organizations or elements of the Department that engage with the ecosystem;

"(C) identification of the private sector assets that are being used to support, sustain, and expand the identified innovation ecosystem; and

"(D) a description of any challenges and successes associated with such ecosystem.

"(5) Such other elements as the Secretary considers appropriate.

"(d) Interim Briefing.—Not later than 90 days after the date of the enactment of this Act, the Secretary of Defense shall provide to the congressional defense committees [Committees on Armed Services and Appropriations of the Senate and the House of Representatives] a briefing on the strategy and implementation plan developed under subsection (a).

"(e) Submittal of Strategy and Plan.—Not later than 180 days after the date of the enactment of this Act, the Secretary of Defense shall submit to the congressional defense committees the strategy and implementation plan developed under subsection (a).

"(f) Quadrennial Updates.—Not later than March 1, 2027, and not less frequently than once ever four years thereafter until December 31, 2039, the Secretary shall—

"(1) update the strategy and plan developed under subsection (a); and

"(2) submit the updated strategy and plan to the congressional defense committees.

"(g) Definitions.—In this section:

"(1) The term 'Department of Defense research, development, test, and evaluation assets' includes the following:

"(A) The Department of Defense science and technology reinvention laboratories designated under section 4121 of title 10, United States Code.

"(B) The Major Range and Test Facility Base (as defined in section 4173 of such title).

"(C) Department of Defense sponsored manufacturing innovation institutes.

"(D) The organic industrial base.

"(E) Defense Agencies and Department of Defense Field Activities (as defined in section 101(a) of title 10, United States Code) that carry out activities using funds appropriated for research, development, test, and evaluation.

"(F) Any other organization or element of the Department of Defense that carries out activities using funds appropriated for research, development, test, and evaluation.

"(2) The term 'innovation ecosystem' refers to a regionally based network of private sector, academic, and government institutions in a network of formal and informal institutional relationships that contribute to technological and economic development in a defined technology sector or sectors."

Establishing Projects for Data Management, Artificial Intelligence, and Digital Solutions

Pub. L. 117–263, div. A, title XV, §1513, Dec. 23, 2022, 136 Stat. 2894, provided that:

"(a) Establishment of Priority Projects.—The Deputy Secretary of Defense shall—

"(1) establish priority enterprise projects for data management, artificial intelligence, and digital solutions for both business efficiency and warfighting capabilities intended to accelerate decision advantage; and

"(2) assign responsibilities for execution and funding of the projects established under paragraph (1).

"(b) Actions Required.—To ensure implementation of the priority projects of the Deputy Secretary of Defense under subsection (a), and to instill data science and technology as a core discipline in the Department of Defense, the Deputy Secretary shall—

"(1) hold the heads of components accountable for—

"(A) making their component's data available for use pursuant to the memorandum of the Deputy Secretary of Defense dated May 5, 2021, and titled 'Creating Data Advantage', in accordance with plans developed and approved by the head of the component and the Deputy Secretary;

"(B) developing, implementing, and reporting measurable actions to acquire, preserve, and grow the population of government and contractor personnel with expertise in data management, artificial intelligence, and digital solutions;

"(C) making their components use data management practices, analytics processes, enterprise cloud computing environments, and operational test environments that are made available and specifically approved by the head of the component and the Deputy Secretary;

"(D) identifying and reporting on an annual basis for Deputy Secretary approval those ongoing programs and activities and new initiatives within their components to which the component head determines should be applied advanced analytics, digital technology, and artificial intelligence; and

"(E) developing and implementing cybersecurity and artificial intelligence security solutions, including preventative and mitigative technical solutions, red team assessments, to protect artificial intelligence systems, data, development processes, and applications from adversary actions;

"(2) require the Chief Digital and Artificial Intelligence Officer, in coordination with the heads of components, to develop and report on an actionable plan for the Deputy Secretary to reform the technologies, policies, and processes used to support accreditation and authority to operate decisions to enable rapid deployment into operational environments of newly developed government, contractor, and commercial data management, artificial intelligence, and digital solutions software;

"(3) require the Under Secretary of Defense for Personnel and Readiness, in coordination with the Chief Digital and Artificial Intelligence Officer and heads of components to define and establish career paths, work roles, and occupational specialties for civilian and military personnel in the fields of data management, artificial intelligence, and digital solutions for the Deputy Secretary's approval; and

"(4) establish a Departmental management reform goal for adoption and integration artificial intelligence or machine learning into business and warfighting processes, including the tracking of metrics, milestones, and initiatives to measure the progress of the Department in meeting that goal.

"(c) Briefings Required.—Not later than 180 days after the date of the enactment of this Act [Dec. 23, 2022], and annually thereafter until December 31, 2025, the Deputy Secretary shall provide to the congressional defense committees [Committees on Armed Services and Appropriations of the Senate and the House of Representatives] a briefing on directives issued by the Deputy Secretary to implement the requirements of this section and the status of implementation actions.

"(d) Component Defined.—In this section, the term 'component' means a military department, a combatant command, or a Defense Agency of the Department of Defense."

Review of Artificial Intelligence Applications and Establishment of Performance Metrics

Pub. L. 117–81, div. A, title II, §226, Dec. 27, 2021, 135 Stat. 1607, as amended by Pub. L. 117–263, div. A, title II, §212(b), Dec. 23, 2022, 136 Stat. 2467, provided that:

"(a) In General.—Not later than 180 days after the date of the enactment of this Act [Dec. 27, 2021], the Secretary of Defense shall—

"(1) review the potential applications of artificial intelligence and digital technology to the platforms, processes, and operations of the Department of Defense; and

"(2) establish performance objectives and accompanying metrics for the incorporation of artificial intelligence and digital readiness into such platforms, processes, and operations.

"(b) Performance Objectives and Accompanying Metrics.—

"(1) Skill gaps.—In carrying out subsection (a), the Secretary of Defense shall require each Secretary of a military department and the heads of such other organizations and elements of the Department of Defense as the Secretary of Defense determines appropriate to—

"(A) conduct a comprehensive review and assessment of—

"(i) skill gaps in the fields of software development, software engineering, data science, and artificial intelligence;

"(ii) the qualifications of civilian personnel needed for both management and specialist tracks in such fields; and

"(iii) the qualifications of military personnel (officer and enlisted) needed for both management and specialist tracks in such fields; and

"(B) establish recruiting, training, and talent management performance objectives and accompanying metrics for achieving and maintaining staffing levels needed to fill identified gaps and meet the needs of the Department for skilled personnel.

"(2) AI modernization activities.—In carrying out subsection (a), the Secretary of Defense shall—

"(A) assess investment by the Department of Defense in artificial intelligence innovation, science and technology, and research and development;

"(B) assess investment by the Department in test and evaluation of artificial intelligence capabilities; and

"(C) establish performance objectives and accompanying metrics for artificial intelligence modernization activities of the Department.

"(3) Exercises, wargames, and experimentation.—In conjunction with the activities of the Secretary of Defense under subsection (a), the Chairman of the Joint Chiefs of Staff, in coordination with the official designated under subsection (b) of section 238 of the John S. McCain National Defense Authorization Act for Fiscal Year 2019 (Public Law 115–232; 10 U.S.C. note prec. 4061), shall—

"(A) assess the integration of artificial intelligence into war-games, exercises, and experimentation; and

"(B) develop performance objectives and accompanying metrics for such integration.

"(4) Logistics and sustainment.—In carrying out subsection (a), the Secretary of Defense shall require the Under Secretary of Defense for Acquisition and Sustainment, with support from the official designated under subsection (b) of section 238 of the John S. McCain National Defense Authorization Act for Fiscal Year 2019 (Public Law 115–232; 10 U.S.C. note prec. 4061), to—

"(A) assess the application of artificial intelligence in logistics and sustainment systems; and

"(B) establish performance objectives and accompanying metrics for integration of artificial intelligence in the Department of Defense logistics and sustainment enterprise.

"(5) Business applications.—In carrying out subsection (a), the Secretary of Defense shall require the Under Secretary of Defense (Comptroller), in coordination with the official designated under subsection (b) of section 238 of the John S. McCain National Defense Authorization Act for Fiscal Year 2019 (Public Law 115–232; 10 U.S.C. note prec. 4061), to—

"(A) assess the integration of artificial intelligence for administrative functions that can be performed with robotic process automation and artificial intelligence-enabled analysis; and

"(B) establish performance objectives and accompanying metrics for the integration of artificial intelligence in priority business process areas of the Department of Defensee, including the following:

"(i) Human resources.

"(ii) Budget and finance, including audit.

"(iii) Retail.

"(iv) Real estate.

"(v) Health care.

"(vi) Logistics.

"(vii) Such other business processes as the Secretary considers appropriate.

"(c) Report to Congress.—Not later than 120 days after the completion of the review required by subsection (a)(1), the Secretary of Defense shall submit to the congressional defense committees [Committees on Armed Services and Appropriations of the Senate and the House of Representatives] a report on—

"(1) the findings of the Secretary with respect to the review and any action taken or proposed to be taken by the Secretary to address such findings; and

"(2) the performance objectives and accompanying metrics established under subsections (a)(2) and (b)."

Modification of the Joint Common Foundation Program

Pub. L. 117–81, div. A, title II, §227, Dec. 27, 2021, 135 Stat. 1609, as amended by Pub. L. 117–263, div. A, title II, §212(c), Dec. 23, 2022, 136 Stat. 2467, provided that:

"(a) Modification of Joint Common Foundation.—The Secretary of Defense shall modify the Joint Common Foundation program conducted by the the [sic] office of the official designated under subsection (b) of section 238 of the John S. McCain National Defense Authorization Act for Fiscal Year 2019 (Public Law 115–232; 10 U.S.C. note prec. 4061) to ensure that Department of Defense components can more easily contract with leading commercial artificial intelligence companies to support the rapid and efficient development and deployment of applications and capabilities.

"(b) Qualifying Commercial Companies.—The Secretary of Defense shall take such actions as may be necessary to increase the number of commercial artificial intelligence companies eligible to provide support to Department of Defense components, including with respect to requirements for cybersecurity protections and processes, to achieve automatic authority to operate and provide continuous delivery, security clearances, data portability, and interoperability.

"(c) Use of FAR Part 12.—The Secretary of Defense shall ensure that, to the maximum extent practicable, commercial artificial intelligence companies are able to offer platforms, services, applications, and tools to Department of Defense components through processes and procedures under part 12 of the Federal Acquisition Regulation.

"(d) Objectives of the Joint Common Foundation Program.—The objectives of the Joint Common Foundation program shall include the following:

"(1) Relieving Department of Defense components of the need to design or develop or independently contract for the computing and data hosting platforms and associated services on and through which the component at issue would apply its domain expertise to develop specific artificial intelligence applications.

"(2) Providing expert guidance to components in selecting commercial platforms, tools, and services to support the development of component artificial intelligence applications.

"(3) Ensuring that leading commercial artificial intelligence technologies and capabilities are easily and rapidly accessible to components through streamlined contracting processes.

"(4) Assisting components in designing, developing, accessing, or acquiring commercial or non-commercial capabilities that may be needed to support the operational use of artificial intelligence applications.

"(5) Enabling companies to develop software for artificial intelligence applications within secure software development environments that are controlled, sponsored, required, or specified by the Department of Defense, including PlatformOne of the Department of the Air Force[.]

"(e) Briefing.—Not later than 120 days after the date of the enactment of this Act [Dec. 27, 2021], the Secretary of Defense shall provide to the congressional defense committees [Committees on Armed Services and Appropriations of the Senate and the House of Representatives] a briefing on actions taken to carry out this section."

Activities To Accelerate Development and Deployment of Dual-Use Quantum Technologies

Pub. L. 117–81, div. A, title II, §229, Dec. 27, 2021, 135 Stat. 1610, as amended by Pub. L. 118–159, div. A, title II, §231(c), Dec. 23, 2024, 138 Stat. 1837, provided that:

"(a) Activities Required.—The Secretary of Defense shall establish a set of activities—

"(1) to accelerate the development and deployment of dual-use quantum capabilities;

"(2) to ensure the approach of the United States to investments of the Department of Defense in quantum information science research and development reflects an appropriate balance between scientific progress and the potential economic and security implications of such progress;

"(3) to ensure that the Department of Defense is fully aware and has a technical understanding of the maturity and operational utility of new and emerging quantum technologies; and

"(4) to ensure the Department of Defense consistently has access to the most advanced quantum capabilities available in the commercial sector to support research and modernization activities.

"(b) Assistance Program.—

"(1) Program required.—In carrying out subsection (a) and subject to the availability of appropriations for such purpose, the Secretary of Defense shall, acting through the Director of the Defense Advanced Research Projects Agency and in consultation with appropriate public and private sector organizations, establish a program under which the Secretary may award assistance to one or more organizations—

"(A) to identify defense applications for which dual-use quantum technologies provide a clear advantage over competing technologies;

"(B) to accelerate development of such quantum technologies; and

"(C) to accelerate the deployment of dual-use quantum capabilities.

"(2) Form of assistance.—Assistance awarded under the program required by paragraph (1) may consist of a grant, a contract, a cooperative agreement, other transaction, or such other form of assistance as the Secretary of Defense considers appropriate.

"(3) Authorities and acquisition approaches.—The Secretary of Defense may use the following authorities and approaches for the program required by paragraph (1):

"(A) Section 2374a of title 10, United States Code [now 10 U.S.C. 4025], relating to prizes for advanced technology achievements.

"(B) Section 2373 of such title [now 10 U.S.C. 4023], relating to procurement for experimental purposes.

"(C) Sections 2371 [now 10 U.S.C. 4021] and 2371b [now 10 U.S.C. 4022] of such title, relating to transactions other than contracts and grants and authority of the Department of Defense to carry out certain prototype projects, respectively.

"(D) Section 2358 of such title [now 10 U.S.C. 4001], relating to research and development projects.

"(E) Section 879 of the National Defense Authorization Act for Fiscal Year 2017 (Public Law 114–328; [former] 10 U.S.C. 2302 note), relating to defense pilot program for authority to acquire innovative commercial products, technologies, and services using general solicitation competitive procedures.

"(F) Requirement for milestone payments based on technical achievements.

"(G) Requirement for cost share from private sector participants in the program.

"(H) Commercial procurement authority under part 12 of the Federal Acquisition Regulation.

"(I) Such other authorities or approaches as the Secretary considers appropriate.

"(4) Policies and procedures.—The Secretary of Defense shall, in consultation with such experts from government and industry as the Secretary considers appropriate, establish policies and procedures to carry out the program required by paragraph (1)."

Data Repositories To Facilitate the Development of Artificial Intelligence Capabilities for the Department of Defense

Pub. L. 117–81, div. A, title II, §232, Dec. 27, 2021, 135 Stat. 1613, as amended by Pub. L. 117–263, div. A, title II, §212(d), Dec. 23, 2022, 136 Stat. 2467, provided that:

"(a) Establishment of Data Repositories.—The Secretary of Defense, acting through the official designated under subsection (b) of section 238 of the John S. McCain National Defense Authorization Act for Fiscal Year 2019 (Public Law 115–232; 10 U.S.C. note prec. 4061) (and such other officials as the Secretary determines appropriate), shall—

"(1) establish data repositories containing Department of Defense data sets relevant to the development of artificial intelligence software and technology; and

"(2) allow appropriate public and private sector organizations to access such data repositories for the purpose of developing improved artificial intelligence and machine learning software capabilities that may, as determined appropriate by the Secretary, be procured by the Department to satisfy Department requirements and technology development goals.

"(b) Elements.—The data repositories established under subsection (a)—

"(1) may include unclassified training quality data sets and associated labels representative of diverse types of information, representing Department of Defense missions, business processes, and activities; and

"(2) shall—

"(A) be categorized and annotated to support development of a common evaluation framework for artificial intelligence models and other technical software solutions;

"(B) be made available to appropriate public and private sector organizations to support rapid development of software and artificial intelligence capabilities;

"(C) include capabilities and tool sets to detect, evaluate, and correct errors in data annotation, identify gaps in training data used in model development that would require additional data labeling, and evaluate model performance across the life cycle of the data repositories; and

"(D) be developed to support other missions and activities as determined by the Secretary.

"(c) Briefing.—Not later than July 1, 2023, the Secretary of Defense shall provide to the congressional defense committees [Committees on Armed Services and Appropriations of the Senate and the House of Representatives] a briefing on—

"(1) the types of information the Secretary determines are feasible and advisable to include in the data repositories established under subsection (a); and

"(2) the progress of the Secretary in establishing such data repositories."

Authority for Activities To Improve Next Generation Radar Systems Capabilities

Pub. L. 117–81, div. A, title III, §380, Dec. 27, 2021, 135 Stat. 1670, provided that:

"(a) Authority.—The Secretary of Defense may undertake activities to enhance future radar systems capabilities, including the following:

"(1) Designating specific industry, academic, government, or public-private partnership entities to provide expertise in the repair, sustainment, and support of radar systems to meet current and future defense requirements, as appropriate.

"(2) Facilitating collaboration among academia, the Federal Government, the defense industry, and the commercial sector, including with respect to radar system repair and sustainment activities.

"(3) Establishing advanced research and workforce training and educational programs to enhance future radar systems capabilities.

"(4) Establishing goals for research in areas of study relevant to advancing technology and facilitating better understanding of radar systems in defense systems and operational activities, including continuing education and training goals.

"(5) Increasing communications and personnel exchanges with radar systems experts in industry to support adoption of state-of-the-art technologies and operational practices, especially to support meeting future defense needs related to radar systems in autonomous systems.

"(6) Establishing agreements with one or more institutions of higher education or other organizations in academia or industry to provide for activities authorized under this section.

"(7) Partnering with nonprofit institutions and private industry with expertise in radar systems to support activities authorized under this section.

"(8) Establishing research centers and facilities, including centers of excellence, as appropriate to support activities authorized under this section, especially to promote partnerships between government, industry, and academia.

"(b) Institution of Higher Education Defined.—The term 'institution of higher education' has the meaning given that term in section 101 of the Higher Education Act of 1965 (20 U.S.C. 1001)."

Pilot Program on Systems Engineering Determinations

Pub. L. 117–81, div. A, title VIII, §823, Dec. 27, 2021, 135 Stat. 1826, provided that:

"(a) Requirement.—As soon as practicable but not later than September 30, 2023, the Secretary of Defense shall ensure that each covered entity enters into at least two covered transactions under an authority described in subsection (b), where each such covered transaction includes the system engineering determinations described under subsection (c).

"(b) Covered Authorities.—The authorities described under this subsection are as follows:

"(1) Section 2371 of title 10, United States Code [now 10 U.S.C. 4021], with respect to applied and advanced research project transactions relating to weapons systems.

"(2) Section 2371b of such title [now 10 U.S.C. 4022], with respect to transactions relating to weapons systems.

"(3) Section 2373 of such title [now 10 U.S.C. 4023].

"(4) Section 2358 of such title [now 10 U.S.C. 4001], with respect to transactions relating to weapons systems.

"(c) Systems Engineering Determinations.—

"(1) First determination.—

"(A) Success criteria.—The head of a covered entity that enters into a covered transaction under this section shall identify, in writing, not later than 30 days after entering into such covered transaction, measurable success criteria related to potential military applications of such covered transaction, to be demonstrated not later than the last day of the period of performance for such covered transaction.

"(B) Types of determinations.—Not later than 30 days after the end of such period of performance, the head of the covered entity shall make one of the following determinations:

"(i) A 'Discontinue' determination, under which such head discontinues support of the covered transaction and provides a rationale for such determination.

"(ii) A 'Retain and Extend' determination, under which such head ensures continued performance of such covered transaction and extends the period of performance for a specified period of time in order to achieve the success criteria described under subparagraph (A).

"(iii) An 'Endorse and Refer' determination, under which such head endorses the covered transaction and refers it to the most appropriate Service Systems Engineering Command, based on the technical attributes of the covered transaction and the associated potential military applications, based on meeting or exceeding the success criteria.

"(C) Written notice.—A determination made pursuant to subparagraph (B) shall be documented in writing and provided to the person performing the covered transaction to which the determination relates.

"(D) Further determination.—If the head of a covered entity issued a 'Retain and Extend' determination described in subparagraph (B)(ii), such head shall, at the end of the extension period—

"(i) issue an 'Endorse and Refer' determination described in subparagraph (B)(iii) if the success criteria are met; or

"(ii) issue a 'Discontinue' determination described in subparagraph (B)(i) if the success criteria are not met.

"(2) Second determination.—

"(A) Systems engineering plan.—The head of the Service Systems Engineering Command that receives a referral from an 'Endorse and Refer' determination described in paragraph (1)(B)(iii) shall, not later than 30 days after receipt of such referral, formulate a systems engineering plan with the person performing the referred covered transaction, technical experts of the Department of Defense, and any prospective program executive officers.

"(B) Elements.—The systems engineering plan required under subparagraph (A) shall include the following:

"(i) Measurable baseline technical capability, based on meeting the success criteria described in paragraph (1)(A).

"(ii) Measurable transition technical capability, based on the technical needs of the prospective program executive officers to support a current or future program of record.

"(iii) Discrete technical development activities necessary to progress from the baseline technical capability to the transition technical capability, including an approximate cost and schedule, including activities that provide resolution to issues relating to—

     "(I) interfaces;

     "(II) data rights;

     "(III) Federal Government technical requirements;

     "(IV) specific platform technical integration;

     "(V) software development;

     "(VI) component, subsystem, or system prototyping;

     "(VII) scale models;

     "(VIII) technical manuals;

     "(IX) lifecycle sustainment needs; and

     "(X) other needs identified by the relevant program executive officer.

"(iv) Identification and commitment of funding sources to complete the activities under clause (iii).

"(C) Types of determinations.—Not later than 30 days after the end of the schedule required by subparagraph (B)(iii), the head of the Service Systems Engineering Command shall make one of the following determinations:

"(i) A 'Discontinue' determination, under which such head discontinues support of the covered transaction and provides a rationale for such determination.

"(ii) A 'Retain and Extend' determination, under which such head ensures continued performance of such covered transaction within the Service Systems Engineering Command and extends the period of performance for a specified period of time in order to—

     "(I) successfully complete the systems engineering plan required under subparagraph (A); and

     "(II) issue specific remedial or additional activities to the person performing the covered transaction.

"(iii) An 'Endorse and Refer' determination, under which such head endorses the covered transaction and refers it to a program executive officer, based on successful completion of the systems engineering plan required under subparagraph (A).

"(D) Written notice.—A determination made pursuant to subparagraph (C) shall be documented in writing and provided to the person performing the covered transaction to which the determination relates and any prospective program executive officers for such covered transaction.

"(E) Further determination.—If the head of the Service Systems Engineering Command issued a 'Retain and Extend' determination described in subparagraph (C)(ii), such head shall, at the end of the extension period—

"(i) issue an 'Endorse and Refer' determination described in subparagraph (C)(iii) if the transition technical capability criteria are met; or

"(ii) issue a 'Discontinue' determination described in subparagraph (B)(i) if the success criteria are not met.

"(d) Priority for Covered Transaction Selection.—In selecting a covered transaction under this section, the Secretary shall prioritize those covered transactions that—

"(1) are being initially demonstrated at a covered entity;

"(2) demonstrate a high potential to be further developed by a Service Systems Engineering Command; and

"(3) demonstrate a high potential to be used in a program of the Department of Defense.

"(e) Notifications.—

"(1) In general.—Not later than 30 days after a covered transaction is entered into pursuant to subsection (a), the Secretary of Defense shall notify the congressional defense committees [Committees on Armed Services and Appropriations of the Senate and the House of Representatives] of such covered transaction.

"(2) Updates.—Not later than 120 days after such a covered transaction is entered into, and every 120 days thereafter until the action specified in subsection (c)(1)(B)(i), (c)(2)(C)(i), or (c)(2)(C)(iii) occurs, the Secretary of Defense shall provide written updates to the congressional defense committees on the actions being taken by the Department to comply with the requirements of this section.

"(f) Briefing Required.—Not later than 60 days after the date of the enactment of this Act [Dec. 27, 2021], the Secretary of Defense shall provide a briefing to the Committees on Armed Services of the Senate and the House of Representatives with a detailed plan to implement the requirements of this section.

"(g) Definitions.—In this section:

"(1) The term 'covered entity' means—

"(A) the Defense Innovation Unit;

"(B) the Strategic Capabilities Office; or

"(C) the Defense Advanced Research Projects Agency.

"(2) The term 'covered transaction' means a transaction, procurement, or project conducted pursuant to an authority listed in subsection (b).

"(3) The term 'Service Systems Engineering Command' means the specific Department of Defense command that reports through a chain of command to the head of a military department that specializes in the systems engineering of a system, subsystem, component, or capability area."

Pilot Program on Acquisition Practices for Emerging Technologies

Pub. L. 117–81, div. A, title VIII, §833, Dec. 27, 2021, 135 Stat. 1833, provided that:

"(a) In General.—Not later than 180 days after the date of the enactment of this Act [Dec. 27, 2021], the Secretary of Defense, acting through the Under Secretary of Defense for Acquisition and Sustainment or the Under Secretary's designee, shall establish a pilot program (in this section referred to as the 'Pilot Program') to develop and implement unique acquisition mechanisms for emerging technologies in order to increase the speed of transition of emerging technologies into acquisition programs or into operational use.

"(b) Elements.—In carrying out the Pilot Program, the Under Secretary of Defense for Acquisition and Sustainment shall—

"(1) identify, and award agreements to, not less than four new projects supporting high-priority defense modernization activities, consistent with the National Defense Strategy, with consideration given to—

"(A) offensive missile capabilities;

"(B) space-based assets;

"(C) personnel and quality of life improvement;

"(D) energy generation and storage; and

"(E) any other area activities the Under Secretary determines appropriate;

"(2) develop a unique acquisition plan for each project identified pursuant to paragraph (1) that is significantly novel from standard Department of Defense acquisition practices, including the use of—

"(A) alternative price evaluation models;

"(B) alternative independent cost estimation methodologies;

"(C) alternative market research methods;

"(D) continuous assessment of performance metrics to measure project value for use in program management and oversight;

"(E) alternative intellectual property strategies, including activities to support modular open system approaches (as defined in section 2446a(b) of title 10, United States Code [now 10 U.S.C. 4401(b)]) and reduce life-cycle and sustainment costs; and

"(F) other alternative practices identified by the Under Secretary;

"(3) execute the acquisition plans described in paragraph (2) and award agreements in an expedited manner; and

"(4) determine if existing authorities are sufficient to carry out the activities described in this subsection and, if not, submit to the congressional defense committees [Committees on Armed Services and Appropriations of the Senate and the House of Representatives] recommendations for statutory reforms that will provide sufficient authority.

"(c) Regulation Waiver.—The Under Secretary of Defense for Acquisition and Sustainment shall establish mechanisms for the Under Secretary to waive, upon request, regulations, directives, or policies of the Department of Defense, a military service, or a Defense Agency with respect to a project awarded an agreement under the Pilot Program if the Under Secretary determines that such a waiver furthers the purposes of the Pilot Program, unless such waiver would be prohibited by a provision of a Federal statute or common law.

"(d) Agreement Termination.—

"(1) In general.—The Secretary of Defense may establish procedures to terminate agreements awarded under the Pilot Program.

"(2) Notification required.—Any procedure established under paragraph (1) shall require that, not later than 30 days prior to the termination of any agreement under such procedure, notice of such termination shall be provided to the congressional defense committees.

"(e) Pilot Program Advisory Group.—

"(1) In general.—The Under Secretary of Defense for Acquisition and Sustainment shall establish a Pilot Program advisory group to advise the Under Secretary on—

"(A) the selection, management and elements of projects under the Pilot Program;

"(B) the collection of data regarding the use of the Pilot Program; and

"(C) the termination of agreements under the Pilot Program.

"(2) Membership.—

"(A) In general.—The members of the advisory group established under paragraph (1) shall be appointed as follows:

"(i) One member from each military department (as defined under section 101(a) of title 10, United States Code), appointed by the Secretary of the military department concerned.

"(ii) One member appointed by the Under Secretary of Defense for Research and Engineering.

"(iii) One member appointed by the Under Secretary of Defense for Acquisition and Sustainment.

"(iv) One member appointed by the Director of the Strategic Capabilities Office of the Department of Defense.

"(v) One member appointed by the Director of the Defense Advanced Research Projects Agency.

"(vi) One member appointed by the Director of Cost Assessment and Program Evaluation.

"(vii) One member appointed by the Director of Operational Test and Evaluation.

"(B) Deadline for appointment.—Members of the advisory group shall be appointed not later than 30 days after the date of the establishment of the pilot program under subsection (a).

"(3) FACA non-applicability.—The Federal Advisory Committee Act ([former] 5 U.S.C. App.) [see 5 U.S.C. 1001 et seq.] shall not apply to the advisory group established under paragraph (1).

"(f) Information to Congress.—

"(1) Briefing requirement.—Not later than 180 days after the date of the enactment of this Act, and not less than annually thereafter, the Secretary of Defense shall provide to the congressional defense committees a briefing on activities performed under this section.

"(2) Budget justification materials.—The Secretary shall establish procedures to clearly identify all projects under the Pilot Program in budget justification materials submitted to Congress.

"(g) Data Requirements.—

"(1) Collection and analysis of data.—The Secretary shall establish mechanisms to collect and analyze data on the execution of the Pilot Program for the purpose of—

"(A) developing and sharing best practices for achieving goals established for the Pilot Program;

"(B) providing information to the Secretary and the congressional defense committees on the execution of the Pilot Program; and

"(C) providing information to the Secretary and the congressional defense committees on related policy issues.

"(2) Data strategy required.—The Secretary may not establish the Pilot Program prior to completion of a plan for—

"(A) meeting the requirements of this subsection;

"(B) collecting the data required to carry out an evaluation of the lessons learned from the Pilot Program; and

"(C) conducting such evaluation.

"(h) Termination.—The Pilot Program shall terminate on the earlier of—

"(1) the date on which each project identified under subsection (b)(1) has either been completed or has had all agreements awarded to such project under the Pilot Program terminated; or

"(2) the date that is five years after the date of the enactment of this Act."

Designation of Senior Officials for Critical Technology Areas Supportive of the National Defense Strategy

Pub. L. 116–283, div. A, title II, §217(a)–(d), Jan. 1, 2021, 134 Stat. 3460, 3461, provided that:

"(a) Designation of Senior Officials.—The Under Secretary of Defense for Research and Engineering shall—

"(1) identify technology areas that the Under Secretary considers critical for the support of the National Defense Strategy; and

"(2) for each such technology area, designate a senior official of the Department of Defense to coordinate research and engineering activities in that area.

"(b) Duties.—The duties of each senior official designated under subsection (a) shall include, with respect to the technology area overseen by such official—

"(1) developing and continuously updating research and technology development roadmaps, funding strategies, and technology transition strategies to ensure—

"(A) the effective and efficient development of new capabilities in the area; and

"(B) the operational use of appropriate technologies;

"(2) conducting annual assessments of workforce, infrastructure, and industrial base capabilities and capacity to support—

"(A) the roadmaps developed under paragraph (1); and

"(B) the goals of the National Defense Strategy;

"(3) reviewing the relevant research and engineering budgets of appropriate organizations within the Department of Defense, including the Armed Forces, and advising the Under Secretary on—

"(A) the consistency of the budgets with the roadmaps developed under paragraph (1);

"(B) any technical and programmatic risks to the achievement of the research and technology development goals of the National Defense Strategy;

"(C) programs, projects, and activities that demonstrate—

"(i) unwanted or inefficient duplication, including duplication with activities of other government agencies and the commercial sector;

"(ii) lack of appropriate coordination with other organizations; or

"(iii) inappropriate alignment with organizational missions and capabilities;

"(4) coordinating the research and engineering activities of the Department with appropriate international, interagency, and private sector organizations; and

"(5) tasking appropriate intelligence agencies of the Department to develop a direct comparison between the capabilities of the United States in the technology area concerned and the capabilities of adversaries of the United States in that area.

"(c) Annual Reports.—

"(1) In general.—Not later than December 1, 2021, and not later than December 1 of each year thereafter through December 1, 2025, the Under Secretary shall submit to the congressional defense committees [Committees on Armed Services and Appropriations of the Senate and the House of Representatives] a report on research and engineering activities and on the status of the technology areas identified under subsection (a)(1), including a description of any programs, projects, or activities in such areas, that have, in the year preceding the date of the report—

"(A) achieved significant technical progress;

"(B) transitioned from the research and development phase to formal acquisition programs;

"(C) transitioned from the research and development phase into operational use; or

"(D) been transferred from the Department of Defense to private sector organizations for further commercial development or commercial sales.

"(2) Form.—Each report under paragraph (1) shall [sic] submitted in unclassified form that can be made available to the public, but may include a classified annex.

"(d) Coordination of Research and Engineering Activities.—The Service Acquisition Executive for each military department and the Director of the Defense Advanced Research Projects Agency shall each identify senior officials to ensure coordination of appropriate research and engineering activities with each of the senior officials designated under subsection (a)."

Social Science, Management Science, and Information Science Research Activities

Pub. L. 116–283, div. A, title II, §220, Jan. 1, 2021, 134 Stat. 3464, provided that:

"(a) Establishment.—The Secretary of Defense, acting through the Under Secretary of Defense for Research and Engineering, shall carry out a program of research and development in social science, management science, and information science.

"(b) Purposes.—The purposes of the program under subsection (a) are as follows:

"(1) To ensure that the Department of Defense has access to innovation and expertise in social science, management science, and information science to enable the Department to improve the effectiveness, efficiency, and agility of the Department's operational and management activities.

"(2) To develop and manage a portfolio of research initiatives in fundamental and applied social science, management science, and information science that is stable, consistent, and balanced across relevant disciplines.

"(3) To enhance cooperation and collaboration on research and development in the fields of social science, management science, and information science between the Department of Defense and appropriate private sector and international entities that are involved in research and development in such fields.

"(4) To accelerate the development of a research community and industry to support Department of Defense missions in the fields of social science, management science, and information science, including the development of facilities, a workforce, infrastructure, and partnerships in support of such missions.

"(5) To coordinate all research and development within the Department of Defense in the fields of social science, management science, and information science.

"(6) To collect, synthesize, and disseminate critical information on research and development in the fields of social science, management science, and information science.

"(7) To assess and appropriately share, with other departments and agencies of the Federal Government and appropriate entities in the private sector—

"(A) challenges within the Department of Defense that may be addressed through the application of advances in social science, management science, and information science; and

"(B) datasets related to such challenges.

"(8) To support the identification of organizational and institutional barriers to the implementation of management and organizational enhancements and best practices.

"(9) To accelerate efforts—

"(A) to transition, and deploy within the Department of Defense, technologies and concepts derived from research and development in the fields of social science, management science, and information science; and

"(B) to establish policies, procedures, and standards for measuring the success of such efforts.

"(10) To integrate knowledge from cross-disciplinary research on—

"(A) how factors relating to social science, management science, and information science affect the global security environment; and

"(B) best practices for management in the public and private sectors.

"(11) To apply principles, tools, and methods from social science, management science, and information science—

"(A) to ensure the Department of Defense is more agile, efficient, and effective in organizational management and in deterring and countering current and emerging threats; and

"(B) to support the National Defense Strategy.

"(c) Administration.—The Under Secretary of Defense for Research and Engineering shall supervise the planning, management, and coordination of the program under subsection (a).

"(d) Activities.—The Under Secretary of Defense for Research and Engineering, in consultation with the Under Secretary of Defense for Policy, the Secretaries of the military departments, and the heads of relevant Defense Agencies, shall—

"(1) prescribe a set of long-term challenges and a set of specific technical goals for the program, including—

"(A) optimization of analysis of national security data sets;

"(B) development of innovative defense-related management activities;

"(C) improving the operational use of social science, management science, and information science innovations by military commanders and civilian leaders;

"(D) improving understanding of the fundamental social, cultural, and behavioral forces that shape the strategic interests of the United States; and

"(E) developing a Department of Defense workforce capable of developing and leveraging innovations and best practices in the fields of social science, management science, and information science to support defense missions;

"(2) develop a coordinated and integrated research and investment plan for meeting near-term, mid-term, and long-term national security, defense-related, and Departmental management challenges that—

"(A) includes definitive milestones;

"(B) provides for achieving specific technical goals;

"(C) establishes pathways to address the operational and management missions of the Department through—

"(i) the evaluation of innovations and advances in social science, management science, and information science for potential implementation within the Department; and

"(ii) implementation of such innovations and advances within the Department, as appropriate; and

"(C) [(D)] builds upon the investments of the Department, other departments and agencies of the Federal Government, and the commercial sector in the fields of social science, management science, and information science;

"(3) develop plans for—

"(A) the development of the Department's workforce in social science, management science, and information science; and

"(B) improving awareness of—

"(i) the fields of social science, management science, and information science;

"(ii) advances and innovations in such fields; and

"(iii) and the ability of such advances and innovations to enhance the efficiency and effectiveness of the Department; and

"(4) develop memoranda of agreement, joint funding agreements, and such other cooperative arrangements as the Under Secretary determines necessary—

"(A) to carry out the program under subsection (a); and

"(B) to transition appropriate products, services, and innovations relating social science, management science, and information science into use within the Department.

"(e) Guidance Required.—

"(1) In general.—Not later than one year after the date of the enactment of this Act [Jan. 1, 2021], the Under Secretary of Defense for Research and Engineering shall develop and issue guidance for defense-related social science, management science, and information science activities, including—

"(A) classification and data management plans for such activities;

"(B) policies for control of personnel participating in such activities to protect national security interests; and

"(C) ensuring that research findings and innovations in the fields of social science, management science, and information science are incorporated into the activities and strategic documents of the Department.

"(2) Updates.—The Under Secretary of Defense for Research and Engineering shall regularly update the guidance issued under paragraph (1).

"(f) Designation of Entity.—The Secretary of each military department may establish or designate an entity or activity under the jurisdiction of such Secretary, which may include a Department of Defense Laboratory, an academic institution, or another appropriate organization, to support interdisciplinary research and development activities in the fields of social science, management science, and information science, and engage with appropriate public and private sector organizations, including academic institutions, to enhance and accelerate the research, development, and deployment of social science, management science, and information science within the Department.

"(g) Use of Other Authority.—The Secretary of Defense shall use the authority provided under section 217 of the National Defense Authorization Act for Fiscal Year 2018 (Public Law 115–91; 10 U.S.C. 2358 note [now 10 U.S.C. 4001 note, set out below]) to enhance the ability of the Department of Defense to access technical talent and expertise at academic institutions in support of the purposes of this section.

"(h) Report.—

"(1) In general.—Not later than December 31, 2022, the Secretary of Defense shall submit to the congressional defense committees [Committees on Armed Services and Appropriations of the Senate and the House of Representatives] a report on the program under subsection (a).

"(2) Form of report.—The report required under paragraph (1) shall be submitted in unclassified form, but may include a classified annex."

Activities To Improve Fielding of Air Force Hypersonic Capabilities

Pub. L. 116–283, div. A, title II, §222, Jan. 1, 2021, 134 Stat. 3469, provided that:

"(a) Improvement of Ground-based Test Facilities.—The Secretary of Defense shall take such actions as may be necessary to improve ground-based test facilities used for the research, development, test, and evaluation of hypersonic capabilities.

"(b) Increasing Flight Test Rate.—The Secretary of Defense shall increase the rate at which hypersonic capabilities are flight tested to expedite the maturation and fielding of such capabilities.

"(c) Strategy and Plan.—Not later than 60 days after the date of the enactment of this Act [Jan. 1, 2021], the Chief of Staff of the Air Force, in consultation with the Under Secretary of Defense for Research and Engineering, shall submit to the congressional defense committees [Committees on Armed Services and Appropriations of the Senate and the House of Representatives] a strategy and plan for fielding air-launched and air-breathing hypersonic weapons capabilities within the period of three years following such date of enactment.

"(d) Report.—In addition to the strategy and plan required under subsection (c), not later than 60 days after the date of the enactment of this Act, the Under Secretary of Defense for Research and Engineering, in consultation with the Director of Operational Test and Evaluation, shall submit to the congressional defense committees a report on the testing capabilities and infrastructure used for hypersonic weapons development. The report shall include—

"(1) an assessment of the sufficiency of the testing capabilities and infrastructure used for fielding hypersonic weapons; and

"(2) a description of any investments in testing capabilities and infrastructure that may be required to support in-flight and ground-based testing for such weapons."

Research, Development, and Deployment of Technologies To Support Water Sustainment

Pub. L. 116–283, div. A, title II, §226, Jan. 1, 2021, 134 Stat. 3476, provided that:

"(a) In General.—The Secretary of Defense shall research, develop, and deploy advanced water harvesting technologies to support and improve water sustainment within the Department of Defense and in geographic regions where the Department operates.

"(b) Required Activities.—In carrying out subsection (a), the Secretary shall—

"(1) develop advanced water harvesting systems that reduce weight and logistics support needs compared to conventional water supply systems, including—

"(A) modular water harvesting systems that are easily transportable; and

"(B) trailer mounted water harvesting systems that reduce resupply needs;

"(2) develop and implement storage requirements for water harvesting systems at forward operating bases; and

"(3) establish cross functional teams to identify geographic regions where the deployment of water harvesting systems could reduce conflict and potentially eliminate the need for the presence of the Armed Forces.

"(c) Additional Activities.—In addition to the activities required under subsection (b), the Secretary shall—

"(1) seek to leverage existing water harvesting techniques and technologies and apply such techniques and technologies to military operations carried out by the United States;

"(2) consider using commercially available off-the-shelf items (as defined in section 104 of title 41, United States Code) and near-ready deployment technologies to achieve cost savings and improve the self sufficiency of warfighters; and

"(3) seek to enter into information sharing arrangements with foreign militaries and other organizations that have the proven ability to operate in water constrained areas for the purpose of sharing lessons learned and best practices relating to water harvesting.

"(d) Implementation.—The Secretary shall deploy technologies developed under subsection (b)(1) for use by expeditionary forces not later than January 1, 2025.

"(e) Water Harvesting Defined.—In this section, the term 'water harvesting', when used with respect to a system or technology, means a system or technology that is capable of creating useable water by—

"(1) harvesting water from underutilized environmental sources, such as by capturing water from ambient humidity; or

"(2) recycling or otherwise reclaiming water that has previously been used."

Board of Advisors for the Office of the Senior Official With Principal Responsibility for Artificial Intelligence and Machine Learning

Pub. L. 116–283, div. A, title II, §233, Jan. 1, 2021, 134 Stat. 3483, as amended by Pub. L. 117–263, div. A, title II, §212(f), Dec. 23, 2022, 136 Stat. 2468, provided that:

"(a) Establishment.—The Secretary of Defense shall establish a board of advisors for the office of the official designated under subsection (b) of section 238 of the John S. McCain National Defense Authorization Act for Fiscal Year 2019 (Public Law 115–232; 10 U.S.C. note prec. 4061) (referred to in this section as the 'Official').

"(b) Duties.—The duties of the board of advisors shall include the following:

"(1) Provide independent strategic advice and technical expertise to the Secretary and the Official on matters relating to the development and use of artificial intelligence by the Department of Defense.

"(2) Evaluate and advise the Secretary and the Official on ethical matters relating to the development and use of artificial intelligence by the Department.

"(3) Conduct long-term and long-range studies on matters relating to artificial intelligence, as required.

"(4) Evaluate and provide recommendations to the Secretary and the Official regarding the Department's development of a robust workforce proficient in artificial intelligence.

"(5) Assist the Secretary and the Official in developing strategic level guidance on artificial intelligence-related hardware procurement, supply-chain matters, and other technical matters relating to artificial intelligence.

"(c) Membership.—The board of advisors shall be composed of appropriate experts from academic or private sector organizations outside the Department of Defense, who shall be appointed by the Secretary.

"(d) Chairperson.—The chairperson of the board of advisors shall be selected by the Secretary.

"(e) Meetings.—The board of advisors shall meet not less than once each fiscal quarter and may meet at other times at the call of the chairperson or a majority of its members.

"(f) Reports.—Not later than September 30 of each year through September 30, 2026, the board of advisors shall submit to the congressional defense committees [Committees on Armed Services and Appropriations of the Senate and the House of Representatives] a report that summarizes the activities of the board over the preceding year.

"(g) Definitions.—In this section:

"(1) The term 'artificial intelligence' has the meaning given that term in section 238(g) of the John S. McCain National Defense Authorization Act for Fiscal Year 2019 (Public Law 115–232; 10 U.S.C. 2358 note [now 10 U.S.C. 4061 note prec.]).

"(2) The term 'Secretary' means the Secretary of Defense."

Steering Committee on Emerging Technology

Pub. L. 116–283, div. A, title II, §236, Jan. 1, 2021, 134 Stat. 3485, as amended by Pub. L. 117–81, div. A, title II, §216, Dec. 27, 2021, 135 Stat. 1595, provided that:

"(a) Establishment.—The Secretary of Defense and the Director of National Intelligence may jointly establish a steering committee on emerging technology and national security threats (referred to in this section as the 'Steering Committee').

"(b) Membership.—The Steering Committee shall be composed of the following:

"(1) The Deputy Secretary of Defense.

"(2) The Vice Chairman of the Joint Chiefs of Staff.

"(3) The Principal Deputy Director of National Intelligence.

"(4) Such other officials of the Department of Defense and intelligence community as the Secretary of Defense and the Director of National Intelligence jointly determine appropriate.

"(c) Leadership.—The Steering Committee shall be chaired by the Deputy Secretary of Defense, the Vice Chairman of the Joint Chiefs of Staff, and the Principal Deputy Director of National Intelligence jointly.

"(d) Responsibilities.—The Steering Committee shall be responsible for—

"(1) developing strategies for the organizational change, concept and capability development, and technology investments in emerging technologies that are needed to maintain the technological superiority of the United States military and intelligence community as outlined in the National Defense Strategy and National Intelligence Strategy, and consistent with the National Security Strategy;

"(2) providing assessments of emerging threats and identifying investments and advances in emerging technology areas undertaken by adversaries of the United States;

"(3) making recommendations to the Secretary of Defense and the Director of National Intelligence on—

"(A) the implementation of the strategies developed under paragraph (1);

"(B) steps that may be taken to address the threats identified under paragraph (2);

"(C) any changes to a program of record that may be required to achieve the strategy under paragraph (1);

"(D) any changes to the Defense Planning Guidance required by section 113(g)(2)(A) of title 10, United States Code, that may be required to achieve the strategy under paragraph (1);

"(E) any changes to the guidance for developing the National Intelligence Program budget required by section 102A(c)(1)(A) of the National Security Act of 1947 (50 U.S.C. 3024(c)(1)(A)), that may be required to implement the strategies under paragraph (1); and

"(F) whether sufficient resources are available for the research activities, workforce, and infrastructure of the Department of Defense and the intelligence community to support the development of capabilities to defeat emerging threats to the United States; and

"(4) carrying out such other activities as are assigned to the Steering Committee by the Secretary of Defense and Director of National Intelligence, jointly.

"(e) Definitions.—In this section:

"(1) The term 'emerging technology' means technology jointly determined to be in an emerging phase of development by the Secretary of Defense and the Director of National Intelligence, including quantum information science and technology, data analytics, artificial intelligence, autonomous technology, advanced materials, software, high performance computing, robotics, directed energy, hypersonics, biotechnology, medical technologies, and such other technology as may be jointly identified by the Secretary and the Director.

"(2) The term 'intelligence community' has the meaning given such term in section 3 of the National Security Act of 1947 (50 U.S.C. 3003).

"(f) Sunset.—This section shall terminate on October 1, 2025."

Part-Time and Term Employment of University Faculty and Students in the Defense Science and Technology Enterprise

Pub. L. 116–283, div. A, title II, §249, Jan. 1, 2021, 134 Stat. 3493, as amended by Pub. L. 117–81, div. A, title II, §§212(c)(3), 215(d)(11), Dec. 27, 2021, 135 Stat. 1588, 1594, provided that:

"(a) Program Required.—Not later than 180 days after the date of the enactment of this Act [Jan. 1, 2021], the Secretary of Defense shall establish a program under which opportunities for part-time and term employment are made available in the Defense science and technology enterprise for faculty and students of institutions of higher education for the purpose of enabling such faculty and students to carry out research projects in accordance with subsection (b).

"(b) Research Projects.—

"(1) Faculty.—A faculty member who is employed in position made available under subsection (a) shall, in the course of such employment, carry out a research project that—

"(A) relates to a topic in the field of science, technology, engineering, or mathematics; and

"(B) contributes to the objectives of the Department of Defense, as determined by the Secretary of Defense.

"(2) Students.—A student employed in position made available under subsection (a) shall assist a faculty member with a research project described in paragraph (1).

"(c) Selection of Participants.—The Secretary of Defense, acting through the heads of participating organizations in the Defense science and technology enterprise, shall select individuals for participation in the program under subsection (a) as follows:

"(1) Faculty members shall be selected for participation on the basis of—

"(A) the academic credentials and research experience of the faculty member; and

"(B) the extent to which the research proposed to be carried out by the faculty member will contribute to the objectives of the Department of Defense.

"(2) Students shall be selected to assist with a research project under the program on the basis of—

"(A) the academic credentials and other qualifications of the student; and

"(B) the student's ability to fulfill the responsibilities assigned to the student as part of the project.

"(d) Minimum Number of Positions.—

"(1) In general.—During the first year of the program under subsection (a), the Secretary of Defense shall establish not fewer than 10 part-time or term positions for faculty.

"(2) Artificial intelligence and machine learning.—Of the positions established under paragraph (1), not fewer than five such positions shall be reserved for faculty who will conduct research in the area of artificial intelligence and machine learning.

"(e) Authorities.—In carrying out the program under subsection (a), the Secretary of Defense, or the head of an organization in the Defense science and technology enterprise, as applicable, may—

"(1) use any hiring authority available to the Secretary or the head of such organization, including—

"(A) any hiring authority available under a laboratory demonstration program, including the hiring authority provided under section 4121(b) of title 10, United States Code;

"(B) direct hiring authority under section 1599h of title 10, United States Code [now 10 U.S.C. 4092]; and

"(C) expert hiring authority under section 3109 of title 5, United States Code;

"(2) enter into cooperative research and development agreements under section 12 of the Stevenson-Wydler Technology Innovation Act of 1980 (15 U.S.C. 3710a) to enable the sharing of research and expertise with institutions of higher education and the private sector; and

"(3) pay referral bonuses to faculty or students participating in the program who identify—

"(A) students to assist in a research project under the program; or

"(B) students or recent graduates to participate in other programs in the Defense science and technology enterprise, including internships at Department of Defense laboratories and in the Pathways Program of the Department.

"(f) Annual Reports.—

"(1) Initial report.—Not later than 30 days after the conclusion of the first year of the program under subsection (a), the Secretary of Defense shall submit to the congressional defense committees [Committees on Armed Services and Appropriations of the Senate and the House of Representatives] a report on the status of the program. The report shall include—

"(A) identification of the number of faculty and students employed under the program;

"(B) identification of the organizations in the Defense science and technology enterprise that employed such individuals; and

"(C) a description of the types of research conducted by such individuals.

"(2) Subsequent reports.—Not later than 30 days after the conclusion of the second and third years of the program under subsection (a), the Secretary of Defense shall submit to the congressional defense committees a report on the progress of the program. Each report shall include—

"(A) the information described in subparagraphs (A) through (C) of paragraph (1);

"(B) the results of any research projects conducted under the program; and

"(C) the number of students and recent graduates who, pursuant to a reference from a faculty member or student participating in the program as described in subsection (e)(3), were hired by the Department of Defense or selected for participation in another program in the Defense science and technology enterprise.

"(g) Definitions.—In this section:

"(1) The term 'Defense science and technology enterprise' means—

"(A) the research organizations of the military departments;

"(B) the science and technology reinvention laboratories (as designated under section 4121(b) of title 10, United States Code);

"(C) the facilities of the Major Range and Test Facility Base (as defined in section 2358a(g) of title 10, United States Code [now 10 U.S.C. 4091(f)]); and

"(D) the Defense Advanced Research Projects Agency.

"(2) The term 'faculty' means an individual who serves as a professor, researcher, or instructor at an institution of higher education.

"(3) The term 'institution of higher education' has the meaning given that term in section 101 of the Higher Education Act of 1965 (20 U.S.C. 1001)."

Acquisition Authority of the Senior Official With Principal Responsibility for Artificial Intelligence and Machine Learning

Pub. L. 116–283, div. A, title VIII, §808, Jan. 1, 2021, 134 Stat. 3745, as amended by Pub. L. 117–263, div. A, title II, §212(i), Dec. 23, 2022, 136 Stat. 2469; Pub. L. 118–31, div. A, title XV, §1541, Dec. 22, 2023, 137 Stat. 572, provided that:

"(a) Authority.—The Secretary of Defense shall delegate to the official designated under subsection (b) of section 238 of the John S. McCain National Defense Authorization Act for Fiscal Year 2019 (Public Law 115–232; 10 U.S.C. note prec. 4061) (referred to in this section as the 'Official') the acquisition authority to exercise the functions of a head of an agency (as defined in section 2302 of title 10, United States Code [see 10 U.S.C. 3004]) with respect to appropriate acquisition activities of the office of such official (referred to in this section as the 'Office').

"(b) Acquisition Executive.—

"(1) In general.—The staff of the Official shall include an acquisition executive who shall be responsible for the supervision of appropriate acquisition activities under subsection (a). Subject to the authority, direction, and control of such Official, the acquisition executive shall have the authority—

"(A) to negotiate memoranda of agreement with any element of the Department of Defense to carry out the acquisition of technologies, services, and capabilities developed or identified by the Office;

"(B) to supervise the acquisition of technologies, services, and capabilities to support the mission of the Office;

"(C) to represent the Office in discussions with the Secretaries concerned regarding acquisition programs relating to such appropriate acquisition activities for which the Office is involved; and

"(D) to work with the Secretaries concerned to ensure that the Office is appropriately represented in any joint working group or integrated product team regarding acquisition programs relating to such appropriate activities for which the Office is involved.

"(2) Delivery of acquisition solutions.—The acquisition executive of the Office shall be—

"(A) responsible to the Official for rapidly delivering capabilities to meet validated requirements;

"(B) subordinate to the Under Secretary of Defense for Acquisition and Sustainment in matters of acquisition; and

"(C) included on the distribution list for acquisition directives and instructions of the Department of Defense.

"(c) Acquisition Personnel.—

"(1) In general.—The Secretary of Defense shall ensure that, at any given time for the duration of the period specified in subsection (d), the Office has at least 10 full-time employees provided by the Secretary to support the Official in carrying out the requirements of this section, including personnel with experience in—

"(A) acquisition practices and processes;

"(B) the Joint Capabilities Integration and Development System process;

"(C) program management;

"(D) software development and systems engineering; and

"(E) cost analysis.

"(2) Existing personnel.—The personnel provided under this subsection shall be provided from among the existing personnel of the Department of Defense.

"(d) Funding.—In exercising the acquisition authority granted in subsection (a), the Official may not obligate or expend more than $75,000,000 out of the funds made available in each of fiscal years 2024 through 2029 to enter into new contracts to support appropriate acquisition activities carried out under this section.

"(e) Implementation Plan and Demonstration Required.—

"(1) In general.—

"(A) Plan required.—Not later than 30 days after the date of the enactment of the National Defense Authorization Act for Fiscal Year 2024 [Dec. 22, 2023], the Secretary of Defense, acting through the Under Secretary of Defense for Acquisition and Sustainment, shall submit to the congressional defense committees [Committees on Armed Services and Appropriations of the Senate and the House of Representatives] a plan for the delegation and exercise of the acquisition authority described in subsection (a).

"(B) Demonstration required.—Not later than 90 days after the date of the enactment of the National Defense Authorization Act for Fiscal Year 2024, the Secretary of Defense, acting through the Chief Digital and Artificial Intelligence Officer of the Department of Defense, shall provide a demonstration of operational capability delivered under such authority. In addition to the matters specified in paragraph (4), such demonstration shall include a description of—

"(i) how the Chief Digital and Artificial Intelligence Officer may use the acquisition authorities available to the Chief Digital and Artificial Intelligence Officer to further the data and artificial intelligence objectives of the Department of Defense, including an inventory of requirements and funding associated with the exercise of such acquisition authorities;

"(ii) how the Chief Digital and Artificial Intelligence Officer may use the acquisition authorities of other Federal entities to further such objectives, including an inventory of requirements and funding associated with the exercise of such acquisition authorities; and

"(iii) the challenges and benefits of using the acquisition authorities described in clauses (i) and (ii), respectively, to further such objectives.

"(2) Implementation plan.—The plan shall include the following:

"(A) Description of the types of activities to be undertaken using the acquisition authority provided under subsection (a).

"(B) Plan for the negotiation and approval of any such memorandum of agreement with an element of the Department of Defense to support the missions of the Office and transition of artificial intelligence capabilities into appropriate acquisition programs or into operational use.

"(C) Plan for oversight of the position of acquisition executive established in subsection (b).

"(D) Assessment of the acquisition workforce, tools, and infrastructure needs of the Office to support the authority under subsection (a) until September 30, 2025.

"(E) Other matters as appropriate.

"(3) Demonstration.—The capability demonstration shall include a description of how the acquisition authority enabled the capability, how requirements were established and agreed upon, how testing was conducted, and how the capability was transitioned to the user, as well as any other matters deemed appropriate by the Office.

"(4) Relationship to other authorities.—The requirement to submit a plan under this subsection is in addition to the requirements under section 260 of the National Defense Authorization Act for Fiscal Year 2020 (Public Law 116–92; 133 Stat. 1293).

"(f) Sunset.—Effective October 1, 2029, the Official may not exercise the authority under subsection (a) and may not enter into any new contracts under this section. The performance on any contract entered into before such date may continue according to the terms of such contract.

"(g) Definitions.—In this section:

"(1) Element.—The term 'element' means an element described under section 111(b) of title 10, United States Code.

"(2) Secretary concerned.—The term 'Secretary concerned' has the meaning given in section 101[(a)](9) of title 10, United States Code."

Direct Air Capture and Blue Carbon Removal Technology Program

Pub. L. 116–92, div. A, title II, §223, Dec. 20, 2019, 133 Stat. 1264, as amended by Pub. L. 117–81, div. A, title II, §§212(c)(2), 215(d)(8), Dec. 27, 2021, 135 Stat. 1588, 1594, provided that:

"(a) Program Required.—

"(1) In general.—The Secretary of Defense, in coordination with the Secretary of Homeland Security, the Secretary of Energy, and the heads of such other Federal agencies as the Secretary of Defense considers appropriate, shall carry out a program on research, development, testing, evaluation, study, and demonstration of technologies related to blue carbon capture and direct air capture.

"(2) Program goals.—The goals of the program established under paragraph (1) are as follows:

"(A) To develop technologies that capture carbon dioxide from seawater and the air to turn such carbon dioxide into clean fuels to enhance fuel and energy security.

"(B) To develop and demonstrate technologies that capture carbon dioxide from seawater and the air to reuse such carbon dioxide to create products for military uses.

"(C) To develop direct air capture technologies for use—

"(i) at military installations or facilities of the Department of Defense; or

"(ii) in modes of transportation by the Navy or the Coast Guard.

"(3) Phases.—The program established under paragraph (1) shall be carried out in two phases as follows:

"(A) The first phase shall consist of research and development and shall be carried out as described in subsection (b).

"(B) The second phase shall consist of testing and evaluation and shall be carried out as described in subsection (c), if the Secretary determines that the results of the research and development phase justify implementing the testing and evaluation phase.

"(4) Designation.—The program established under paragraph (1) shall be known as the 'Direct Air Capture and Blue Carbon Removal Technology Program' (in this section referred to as the 'Program').

"(b) Research and Development Phase.—

"(1) In general.—During the research and development phase of the Program, the Secretary of Defense shall conduct research and development in pursuit of the goals set forth in subsection (a)(2).

"(2) Direct air capture.—The research and development phase of the Program may include, with respect to direct air capture, a front end engineering and design study that includes an evaluation of direct air capture designs to produce fuel for use—

"(A) at military installations or facilities of the Department of Defense; or

"(B) in modes of transportation by the Navy or the Coast Guard.

"(3) Commencement.—The Secretary shall commence carrying out the research and development phase of the Program not later than 90 days after the date of the enactment of this Act [Dec. 20, 2019].

"(4) Grants authorized.—The Secretary may carry out the research and development phase of the Program through the award of grants to private persons and eligible laboratories.

"(5) Report required.—Not later than 180 days after the date of the completion of the research and development phase of the Program, the Secretary shall submit to Congress a report on the research and development carried out under the Program.

"(c) Testing and Evaluation Phase.—

"(1) In general.—During the testing and evaluation phase of the Program, the Secretary shall, in pursuit of the goals set forth in subsection (a)(2), conduct tests and evaluations of the technologies researched and developed during the research and development phase of the Program.

"(2) Direct air capture.—The testing and evaluation phase of the Program may include demonstration projects for direct air capture to produce fuels for use—

"(A) at military installations or facilities of the Department of Defense; or

"(B) in modes of transportation by the Navy or the Coast Guard.

"(3) Commencement.—Subject to subsection (a)(3)(B), the Secretary shall commence carrying out the testing and evaluation phase of the Program on the date of the completion of the research and development phase described in subsection (b), except that the testing and evaluation phase of the Program with respect to direct air capture may commence at such time after a front end engineering and design study demonstrates to the Secretary that commencement of such phase is appropriate.

"(4) Grants authorized.—The Secretary may carry out the testing and evaluation phase of the Program through the award of grants to private persons and eligible laboratories.

"(5) Locations.—The Secretary shall carry out the testing and evaluation phase of the Program at military installations or facilities of the Department of Defense.

"(6) Report required.—Not later than September 30, 2026, the Secretary shall submit to Congress a report on the findings of the Secretary with respect to the effectiveness of the technologies tested and evaluated under the Program.

"(d) Definitions.—In this section:

"(1) The term 'blue carbon capture' means the removal of dissolved carbon dioxide from seawater through engineered or inorganic processes, including filters, membranes, or phase change systems.

"(2)(A) The term 'direct air capture', with respect to a facility, technology, or system, means that the facility, technology, or system uses carbon capture equipment to capture carbon dioxide directly from the air.

"(B) The term 'direct air capture' does not include any facility, technology, or system that captures carbon dioxide—

"(i) that is deliberately released from a naturally occurring subsurface spring; or

"(ii) using natural photosynthesis.

"(3) The term 'eligible laboratory' means—

"(A) a National Laboratory (as defined in section 2 of the Energy Policy Act of 2005 (42 U.S.C. 15801));

"(B) a science and technology reinvention laboratory designated under section 4121(b) of title 10, United States Code;

"(C) the Major Range and Test Facility Base (as defined in section 2358a(g) of title 10, United States Code [now 10 U.S.C. 4091(f)]); or

"(D) any other facility that supports the research, development, test, and evaluation activities of the Department of Defense or the Department of Energy."

Research Program on Foreign Malign Influence Operations

Pub. L. 116–92, div. A, title II, §228, Dec. 20, 2019, 133 Stat. 1271, provided that:

"(a) Program Authorized.—The Secretary of Defense, acting through the Under Secretary of Defense for Research and Engineering, may carry out a research program on foreign malign influence operations as part of the university research programs of the Department of Defense.

"(b) Program Objectives.—The objectives of a research program carried out under subsection (a) should include the following:

"(1) Enhance the understanding of foreign malign influence operations, including activities conducted on social media platforms.

"(2) Facilitate the analysis of publicly available or voluntarily provided indicators of foreign malign influence operations.

"(3) Promote collaborative research and information exchange with relevant entities within the Department of Defense and with other agencies or nongovernmental organizations relating to foreign malign influence operations, as appropriate.

"(c) Notice to Congress.—Not later than 30 days before initiating a research program under subsection (a), the Secretary of Defense shall submit to the congressional defense committees [Committees on Armed Services and Appropriations of the Senate and the House of Representatives] notice of the intent of the Secretary to initiate such a program, which shall include—

"(1) a detailed description of the program and any related research activities;

"(2) the estimated cost and duration of the program; and

"(3) any other matters the Secretary determines to be relevant."

Diversification of the Research and Engineering Workforce of the Department of Defense

Pub. L. 116–92, div. A, title II, §229, Dec. 20, 2019, 133 Stat. 1271, provided that:

"(a) Assessment Required.—

"(1) In general.—The Secretary of Defense, acting through the Under Secretary of Defense for Research and Engineering and in consultation with the Under Secretary of Defense for Personnel and Readiness, shall conduct an assessment of critical skillsets required across, and the diversity of, the research and engineering workforce of the Department of Defense, including the science and technology reinvention laboratories, to support emerging and future warfighter technologies.

"(2) Elements.—The assessment required by paragraph (1) shall include analysis of the following:

"(A) The percentage of women and minorities employed in the research and engineering workforce of the Department of Defense as of the date of the assessment.

"(B) Of the individuals hired into the research and engineering workforce of the Department in the five years preceding the date of the assessment, the percentage of such individuals who are women and minorities.

"(C) The effectiveness of existing hiring, recruitment, and retention incentives for women and minorities in the research and engineering workforce of the Department.

"(D) The effectiveness of the Department in recruiting women and minorities into the laboratory workforce after such individuals complete work on Department-funded research, projects, grant projects, fellowships, and STEM programs.

"(E) The geographical diversity of the workforce across various geographic regions.

"(b) Plan Required.—

"(1) In general.—Based on the results of the assessment conducted under subsection (a), the Secretary of Defense, acting through the Under Secretary of Defense for Research and Engineering and in consultation with the Secretaries of the military departments, shall develop and implement a plan to diversify and strengthen the research and engineering workforce of the Department of Defense.

"(2) Elements.—The plan required by paragraph (1) shall—

"(A) align with science and technology strategy priorities of the Department of Defense, including the emerging and future warfighter technology requirements identified by the Department;

"(B) except as provided in subsection (c)(2), set forth steps for the implementation of each recommendation included in the 2013 report of the RAND corporation titled 'First Steps Toward Improving DoD STEM Workforce Diversity';

"(C) harness the full range of the Department's STEM programs and other Department sponsored programs to develop and attract top talent;

"(D) use existing authorities to attract and retain students, academics, and other talent;

"(E) establish and use contracts, agreements, or other arrangements with institutions of higher education (as defined in section 101 of the Higher Education Act of 1965 (20 U.S.C. 1001)), including historically black colleges and universities and other minority-serving institutions (as described in section 371(a) of such Act (20 U.S.C. 1067q(a)) to enable easy and efficient access to research and researchers for Government sponsored basic and applied research and studies at each institution, including contracts, agreements, and other authorized arrangements such as those authorized under—

"(i) section 217 of the National Defense Authorization Act for Fiscal Year 2018 (Public Law 115–91; 10 U.S.C. 2358 note [now 10 U.S.C. 4001 note, set out below]); and

"(ii) such other authorities as the Secretary determines to be appropriate; and

"(F) include recommendations for changes in authorities, regulations, policies, or any other relevant areas that would support the achievement of the goals set forth in the plan.

"(3) Submittal to congress.—Not later than one year after the date of the enactment of this Act [Dec. 20, 2019], the Secretary of Defense shall submit to the congressional defense committees [Committees on Armed Services and Appropriations of the Senate and the House of Representatives] a report that includes—

"(A) the plan developed under paragraph (1); and

"(B) with respect to each recommendation described in paragraph (2)(B) that the Secretary has implemented or expects to implement—

"(i) a summary of actions that have been taken to implement the recommendation; and

"(ii) a schedule, with specific milestones, for completing the implementation of the recommendation.

"(c) Deadline for Implementation.—

"(1) In general.—Except as provided in paragraph (2), not later than 18 months after the date of the enactment of this Act the Secretary of Defense shall carry out activities to implement the plan developed under subsection (b).

"(2) Exception for implementation of certain recommendations.—

"(A) Delayed implementation.—The Secretary of Defense may commence implementation of a recommendation described in subsection (b)(2)(B) after the date specified in paragraph (1) if the Secretary provides the congressional defense committees with a specific justification for the delay in implementation of such recommendation on or before such date.

"(B) Nonimplementation.—The Secretary of Defense may opt not to implement a recommendation described in subsection (b)(2)(B) if the Secretary provides to the congressional defense committees, on or before the date specified in paragraph (1)—

"(i) a specific justification for the decision not to implement the recommendation; and

"(ii) a summary of the alternative actions the Secretary plans to take to address the issues underlying the recommendation.

"(d) STEM Defined.—In this section, the term 'STEM' means science, technology, engineering, and mathematics."

Process To Align Policy Formulation and Emerging Technology Development

Pub. L. 116–92, div. A, title II, §232, Dec. 20, 2019, 133 Stat. 1277, provided that:

"(a) Alignment of Policy and Technological Development.—Not later than 180 days after the date of the enactment of this Act [Dec. 20, 2019], the Secretary of Defense shall establish a process to ensure that the policies of the Department of Defense relating to emerging technology are formulated and updated continuously as such technology is developed by the Department.

"(b) Elements.—As part of the process established under subsection (a), the Secretary shall—

"(1) specify the role of each covered official in ensuring that the formulation of policies relating to emerging technology is carried out concurrently with the development of such technology; and

"(2) incorporate procedures for the continuous legal review of—

"(A) weapons and other defense systems that incorporate or use emerging technology; and

"(B) treaties that may be affected by such technology.

"(c) Briefing Required.—Not later than 30 days after the date on which the Secretary of Defense establishes the process required under subsection (a), the Secretary shall provide to the congressional defense committees [Committees on Armed Services and Appropriations of the Senate and the House of Representatives] a briefing on such process.

"(d) Definitions.—In this section:

"(1) The term 'covered official' means the following:

"(A) The Chairman of the Joint Chiefs of Staff.

"(B) The Under Secretary of Defense for Research and Engineering.

"(C) The Under Secretary of Defense for Acquisition and Sustainment.

"(D) The Under Secretary of Defense for Policy.

"(E) The commanders of combatant commands with responsibilities involving the use of weapons or other defense systems that incorporate or use emerging technology, as determined by the Secretary of Defense.

"(F) The Secretaries of the military departments.

"(2) The term 'emerging technology' means technology determined to be in an emerging phase of development by the Secretary of Defense, including quantum computing, technology for the analysis of large and diverse sets of data (commonly known as 'big data analytics'), artificial intelligence, autonomous technology, robotics, directed energy, hypersonics, biotechnology, and such other technology as may be identified by the Secretary."

Procedures for Rapid Reaction to Emerging Technology

Pub. L. 115–232, div. A, title II, §225, Aug. 13, 2018, 132 Stat. 1684, provided that:

"(a) Requirement to Establish Procedures.—Not later than 180 days after the date of the enactment of this Act [Aug. 13, 2018], the Under Secretary of Defense for Research and Engineering shall prescribe procedures for the designation and development of technologies that are—

"(1) urgently needed—

"(A) to react to a technological development of an adversary of the United States; or

"(B) to respond to a significant and urgent emerging technology; and

"(2) not receiving appropriate research funding or attention from the Department of Defense.

"(b) Elements.—The procedures prescribed under subsection (a) shall include the following:

"(1) A process for streamlined communications between the Under Secretary, the Joint Chiefs of Staff, the commanders of the combatant commands, the science and technology executives within each military department, and the science and technology community, including—

"(A) a process for the commanders of the combatant commands and the Joint Chiefs of Staff to communicate their needs to the science and technology community; and

"(B) a process for the science and technology community to propose technologies that meet the needs communicated by the combatant commands and the Joint Chiefs of Staff.

"(2) Procedures for the development of technologies proposed pursuant to paragraph (1)(B), including—

"(A) a process for demonstrating performance of the proposed technologies on a short timeline;

"(B) a process for developing a development strategy for a technology, including integration into future budget years; and

"(C) a process for making investment determinations based on information obtained pursuant to subparagraphs (A) and (B).

"(c) Briefing.—Not later than 180 days after the date of the enactment of this Act, the Under Secretary shall provide to the congressional defense committees [Committees on Armed Services and Appropriations of the Senate and the House of Representatives] a briefing on the procedures required by subsection (a)."

Human Factors Modeling and Simulation Activities

Pub. L. 115–232, div. A, title II, §227, Aug. 13, 2018, 132 Stat. 1687, provided that:

"(a) Activities Required.—The Secretary of Defense shall develop and provide for the carrying out of human factors modeling and simulation activities designed to do the following:

"(1) Provide warfighters and civilians with personalized assessment, education, and training tools.

"(2) Identify and implement effective ways to interface and team warfighters with machines.

"(3) Result in the use of intelligent, adaptive augmentation to enhance decision making.

"(4) Result in the development of techniques, technologies, and practices to mitigate critical stressors that impede warfighter and civilian protection, sustainment, and performance.

"(b) Purpose.—The overall purpose of the activities shall be to accelerate research and development that enhances capabilities for human performance, human-systems integration, and training for the warfighter.

"(c) Participants in Activities.—Participants in the activities may include the following:

"(1) Elements of the Department of Defense engaged in science and technology activities.

"(2) Program Executive Offices of the Department.

"(3) Academia.

"(4) The private sector.

"(5) Such other participants as the Secretary considers appropriate."

Defense Quantum Information Science and Technology Research and Development Program

Pub. L. 115–232, div. A, title II, §234, Aug. 13, 2018, 132 Stat. 1692, as amended by Pub. L. 116–92, div. A, title II, §220, Dec. 20, 2019, 133 Stat. 1260; Pub. L. 116–283, div. A, title II, §214, Jan. 1, 2021, 134 Stat. 3458; Pub. L. 118–31, div. A, title II, §219, Dec. 22, 2023, 137 Stat. 188, provided that:

"(a) Establishment.—The Secretary of Defense shall carry out a quantum information science and technology research and development program.

"(b) Purposes.—The purposes of the program required by subsection (a) are as follows:

"(1) To ensure global superiority of the United States in quantum information science necessary for meeting national security requirements.

"(2) To coordinate all quantum information science and technology research and development within the Department of Defense and to provide for interagency cooperation and collaboration on quantum information science and technology research and development between the Department of Defense and other departments and agencies of the United States and appropriate private sector and international entities that are involved in quantum information science and technology research and development.

"(3) To develop and manage a portfolio of fundamental and applied quantum information science and technology and engineering research initiatives that is stable, consistent, and balanced across scientific disciplines.

"(4) To accelerate the transition and deployment of technologies and concepts derived from quantum information science and technology research and development into the Armed Forces, and to establish policies, procedures, and standards for measuring the success of such efforts.

"(5) To collect, synthesize, and disseminate critical information on quantum information science and technology research and development.

"(6) To establish and support appropriate research, innovation, and industrial base, including facilities, workforce, and infrastructure, to support the needs of Department of Defense missions and systems related to quantum information science and technology.

"(c) Administration.—In carrying out the program required by subsection (a), the Secretary shall act through the Under Secretary of Defense for Research and Engineering, who shall supervise the planning, management, and coordination of the program. The Under Secretary, in consultation with the Secretaries of the military departments and the heads of participating Defense Agencies and other departments and agencies of the United States, shall—

"(1) prescribe a set of long-term challenges and a set of specific technical goals for the program, including—

"(A) optimization of analysis of national security data sets;

"(B) development of defense related quantum computing algorithms;

"(C) design of new materials and molecular functions;

"(D) secure communications and cryptography, including development of quantum communications protocols;

"(E) quantum sensing and metrology;

"(F) development of mathematics relating to quantum enhancements to sensing, communications, and computing; and

"(G) processing and manufacturing of low-cost, robust, and reliable quantum information science and technology-enabled devices and systems;

"(2) develop a coordinated and integrated research and investment plan for meeting the near-, mid-, and long-term challenges with definitive milestones while achieving the specific technical goals that builds upon the Department's increased investment in quantum information science and technology research and development, commercial sector and global investments, and other United States Government investments in the quantum information sciences, including through consultation with—

"(A) the National Quantum Coordination Office;

"(B) the subcommittee on Quantum Information Science of the National Science and Technology Council;

"(C) other organizations and elements of the Department of Defense;

"(D) other Federal agencies; and

"(E) appropriate private sector organizations;

"(3) in consultation with the entities listed in paragraph (2), develop plans for—

"(A) the development of the quantum information science and technology workforce;

"(B) enhancing awareness of quantum information science and technology;

"(C) reducing the risk of cybersecurity threats posed by quantum information science technology; and

"(D) development of ethical guidelines for the use of quantum information science technology;

"(4) in consultation with the National Institute of Standards and Technology and other appropriate Federal entities, develop a quantum information science taxonomy and standards and requirements for quantum information technology;

"(5) support efforts to increase the technology readiness level of quantum information science technologies under development in the United States;

"(6) not later than 180 days after the date of the enactment of this Act [Aug. 13, 2018], develop and continuously update guidance, including classification and data management plans for defense-related quantum information science and technology activities, and policies for control of personnel participating on such activities to minimize the effects of loss of intellectual property in basic and applied quantum information science and information considered sensitive to the leadership of the United States in the field of quantum information science and technology; and

"(7) develop memoranda of agreement, joint funding agreements, and other cooperative arrangements necessary for carrying out the program under subsection (a).

"(d) Quantum Information Science Research Centers.—The Secretary of each military department may establish or designate a defense laboratory or establish activities to engage with appropriate public and private sector organizations, including academic organizations, to enhance and accelerate the research, development, and deployment of quantum information sciences and quantum information science-enabled technologies and systems. The Secretary of Defense shall ensure that not less than one such laboratory or center is established or designated.

"(e) Use of Quantum Computing Capabilities.—The Secretary of each military department shall—

"(1) develop and annually update a list of technical problems and research challenges which are likely to be addressable by quantum computers available for use within in the next one to three years, with a priority for technical problems and challenges where quantum computing systems have performance advantages over traditional computing systems, in order to enhance the capabilities of such quantum computers and support the addressing of relevant technical problems and research challenges; and

"(2) establish programs and enter into agreements with appropriate medium and small businesses with functional quantum computing capabilities to provide such private sector capabilities to government, industry, and academic researchers working on relevant technical problems and research activities.

"(f) Fellowships.—

"(1) Program authorized.—In carrying out the program under subsection (a) and subject to the availability of appropriations to carry out this subsection, the Secretary may carry out a program of fellowships in quantum information science and technology research and development for individuals who have a graduate or postgraduate degree.

"(2) Equal access.—In carrying out the program under paragraph (1), the Secretary may establish procedures to ensure that minority, geographically diverse, and economically disadvantaged students have equal access to fellowship opportunities under such program.

"(g) Multidisciplinary Partnerships With Universities.—In carrying out the program under subsection (a), the Secretary of Defense may develop partnerships with universities to enable students to engage in multidisciplinary courses of study.

"(h) Report.—

"(1) In general.—Not later than December 31, 2020, the Secretary shall submit to the congressional defense committees [Committees on Armed Services and Appropriations of the Senate and the House of Representatives] a report on the program, in both classified and unclassified format.

"(2) Elements.—The report required by paragraph (1) shall include the following:

"(A) A description of the knowledge-base of the Department with respect to quantum information sciences, plans to defend against quantum based attacks, and any plans of the Secretary to enhance such knowledge-base.

"(B) A plan that describes how the Secretary intends to use quantum information sciences for military applications and to meet other needs of the Department, including a discussion of likely impacts of quantum information science and technology on military capabilities.

"(C) An assessment of the efforts of foreign powers to use quantum information sciences for military applications and other purposes.

"(D) A description of the activities carried out in accordance with this section, including, for each such activity—

"(i) a roadmap for the activity;

"(ii) a summary of the funding provided for the activity; and

"(iii) an estimated timeline for the development and military deployment of quantum technologies supported through the activity.

"(E) A description of the efforts of the Department of Defense to update classification and cybersecurity practices relating to quantum technology, including—

"(i) security processes and requirements for engagement with allied countries; and

"(ii) a plan for security-cleared government and contractor workforce development.

"(F) Such other matters as the Secretary considers appropriate."

Initiative To Support Protection of National Security Academic Researchers From Undue Influence and Other Security Threats

Pub. L. 118–31, div. A, title XII, §1224(b), Dec. 22, 2023, 137 Stat. 455, provided that: "The Secretary of Defense shall develop the policies required by paragraph (7) of section 1286(c) of the John S. McCain National Defense Authorization Act for Fiscal Year 2019 [Pub. L. 115–232] (10 U.S.C. 4001 note), as added by subsection (a)(1)(B), by not later than June 1, 2024."

Pub. L. 115–232, div. A, title XII, §1286, Aug. 13, 2018, 132 Stat. 2078, as amended by Pub. L. 116–92, div. A, title XII, §1281, Dec. 20, 2019, 133 Stat. 1704; Pub. L. 116–283, div. A, title X, §1081(d)(6), title XII, §1299C, Jan. 1, 2021, 134 Stat. 3874, 3999; Pub. L. 118–31, div. A, title XII, §§1223(a), 1224(a), Dec. 22, 2023, 137 Stat. 453, 454; Pub. L. 118–159, div. A, title II, §226, Dec. 23, 2024, 138 Stat. 1831, provided that:

"(a) Initiative Required.—The Secretary of Defense shall, in consultation with other appropriate government organizations, establish an initiative to work with institutions of higher education who perform defense research and engineering activities—

"(1) to support protection of intellectual property, controlled information, key personnel, and information about critical technologies relevant to national security;

"(2) to limit undue influence, including through foreign talent programs, by countries to exploit United States technology within the Department of Defense research, science and technology, and innovation enterprise;

"(3) to limit academic institutions identified on the list developed under subsection (c)(8)(A) [now (c)(9)(A)] from benefitting from funding provided by the Department of Defense to United States academic institutions; and

"(4) to support efforts toward development of domestic talent in relevant scientific and engineering fields.

"(b) Institutions and Organizations.—The initiative required by subsection (a) shall be developed and executed to the maximum extent practicable with academic research institutions and other educational and research organizations.

"(c) Requirements.—The initiative required by subsection (a) shall include development of the following:

"(1) Information exchange forum and information repositories to enable awareness of security threats and influence operations being executed against the United States research, technology, and innovation enterprise.

"(2) Training developed and delivered in consultation with institutions of higher education and appropriate Government agencies, and other support to institutions of higher education, to promote security and limit undue influence on institutions of higher education and personnel, including Department of Defense financial support to carry out such activities, that—

"(A) emphasizes best practices for protection of sensitive national security information;

"(B) includes the dissemination of unclassified materials and resources for identifying and protecting against emerging threats to institutions of higher education, including specific counterintelligence information and advice developed specifically for faculty and academic researchers based on actual identified threats; and

"(C) includes requirements for appropriate senior officials of institutions of higher education to receive from appropriate Government agencies updated and periodic briefings that describe the espionage risks to academic institutions and associated personnel posed by technical intelligence gathering activities of near-peer strategic competitors.

"(3) The capacity of Government agencies and institutions of higher education to assess whether individuals affiliated with Department of Defense programs have participated in or are currently participating in foreign talent programs or expert recruitment programs.

"(4) Opportunities to collaborate with defense researchers and research organizations in secure facilities to promote protection of critical information and strengthen defense against foreign intelligence services.

"(5) Regulations and procedures—

"(A) for Government agencies and academic organizations and personnel to support the goals of the initiative; and

"(B) that are consistent with policies that protect open and scientific exchange in fundamental research.

"(6) Policies to limit or prohibit funding provided by the Department of Defense for institutions or individual researchers who knowingly violate regulations developed under the initiative, including regulations relating to foreign talent programs.

"(7) Policies to limit or prohibit funding provided by the Department of Defense for institutions or individual researchers who knowingly contract or make other financial arrangements with entities identified in the list described in paragraph (9), which policies shall include—

"(A) use of such list as part of a risk assessment decision matrix during proposal evaluations, including the development of a question for proposers or broad area announcements that require proposers to disclose any contractual or financial connections with such entities;

"(B) a requirement that the Department shall notify a proposer of suspected noncompliance with a policy issued under this paragraph and provide not less than 30 days to take actions to remedy such noncompliance;

"(C) the establishment of an appeals procedure under which a proposer may appeal a negative decision on a proposal if the decision is based on a determination informed by such list;

"(D) a requirement that each awardee of funding provided by the Department shall disclose to the Department any contract or financial arrangement made with such an entity during the period of the award; and

"(E) a requirement that each awardee of funding provided by the Department shall provide to the Department an annual certification of compliance with policies promulgated pursuant to this paragraph; [sic; the semicolon probably should be a period]

"(8) Initiatives to support the transition of the results of institution of higher education research programs into defense capabilities.

"(9)(A) A list of academic institutions of the People's Republic of China, the Russian Federation, and other countries that—

"(i) have a history of improper technology transfer, intellectual property theft, or cyber or human espionage;

"(ii) operate under the direction of the military forces or intelligence agency of the applicable country;

"(iii) are known—

"(I) to recruit foreign individuals for the purpose of transferring knowledge to advance military or intelligence efforts; or

"(II) to provide misleading information or otherwise attempt to conceal the connections of an individual or institution to a defense or an intelligence agency of the applicable country; or

"(iv) pose a serious risk of improper technology transfer of data, technology, or research that is not published or publicly available.

"(B) The list described in subparagraph (A) shall be developed and continuously updated in consultation with the Bureau of Industry and Security of the Department of Commerce, the Director of National Intelligence, United States institutions of higher education that conduct significant Department of Defense research or engineering activities, and other appropriate individuals and organizations.

"(10)(A) A list, developed and continuously updated in consultation with the National Academies of Science, Engineering, and Medicine and the appropriate Government agencies, of foreign talent programs that pose a threat to the national security interests of the United States, as determined by the Secretary.

"(B) In developing and updating such list, the Secretary shall consider—

"(i) the extent to which a foreign talent program—

"(I) poses a threat to research funded by the Department of Defense; and

"(II) engages in, or facilitates, cyber attacks, theft, espionage, attempts to gain ownership of or influence over companies, or otherwise interferes in the affairs of the United States; and

"(ii) any other factor the Secretary considers appropriate.

"(11) Development of measures of effectiveness and performance to assess and track progress of the Department of Defense across the initiative, which measures shall include—

"(A) the evaluation of currently available data to support the assessment of such measures, including the identification of areas in which gaps exist that may require collection of completely new data, or modifications to existing data sets;

"(B) current means and methods for the collection of data in an automated manner, including the identification of areas in which gaps exist that may require new means for data collection or visualization of such data; and

"(C) the development of an analysis and assessment methodology framework to make tradeoffs between the measures developed under this paragraph and other metrics related to assessing undue foreign influence on the Department of Defense research enterprise, such as commercial due diligence, beneficial ownership, and foreign ownership, control, and influence.

"(d) Procedures for Enhanced Information Sharing.—

"(1) Collection of information.—

"(A) Defense research and development activities.—Not later than October 1, 2020, for the purpose of maintaining appropriate security controls over research activities, technical information, and intellectual property, the Secretary, in conjunction with appropriate public and private entities, shall establish streamlined procedures to collect appropriate information relating to individuals, including United States citizens and foreign nationals, who participate in defense research and development activities.

"(B) Fundamental research programs.—With respect to fundamental research programs, the academic liaison designated under subsection (h) shall establish policies and procedures to collect, consistent with the best practices of Government agencies that fund academic research, appropriate information relating to individuals who participate in fundamental research programs.

"(2) Protection from release.—The procedures required by paragraph (1) shall include procedures to protect such information from release, consistent with applicable regulations.

"(3) Reporting to government information systems and repositories.—The procedures required by paragraph (1) may include procedures developed, in coordination with appropriate public and private entities, to report such information to existing Government information systems and repositories.

"(e) Annual Reviews Required.—Not later than March 30, 2025, and not later than March 30 of each year thereafter—

"(1) each head of a Department of Defense component that awards grants for research shall carry out a review of a representative sample of the research grants awarded by the respective component in the previous fiscal year to ensure that the component is awarding grants in compliance with the applicable policies of the Department of Defense; and

"(2) the Under Secretary of Defense for Research and Engineering shall carry out a separate review of a representative sample of the research grants awarded by such components in the previous fiscal year.

"(f) Annual Report.—

"(1) In general.—Not later than April 30, 2020, and annually thereafter, the Secretary, acting through appropriate Government officials (including the Under Secretary for Research and Engineering), shall submit to the congressional defense committees [Committees on Armed Services and Appropriations of the Senate and the House of Representatives] a report on the activities carried out under the initiative required by subsection (a) and on the periodic reviews conducted pursuant to subsection (e).

"(2) Contents.—The report required by paragraph (1) shall include the following:

"(A) With respect to the activities carried out under the initiative required by subsection (a), the following:

"(i) A description of the activities conducted and the progress made under the initiative.

"(ii) The findings of the Secretary with respect to the initiative.

"(iii) Such recommendations as the Secretary may have for legislative or administrative action relating to the matters described in subsection (a), including actions related to foreign talent programs.

"(iv) Identification and discussion of the gaps in legal authorities that need to be improved to enhance the security of research institutions of higher education performing defense research.

"(v) A description of the actions taken by such institutions to comply with such best practices and guidelines as may be established by under the initiative.

"(vi) Identification of any incident relating to undue influence to security threats to academic research activities funded by the Department of Defense, including theft of property or intellectual property relating to a project funded by the Department at an institution of higher education.

"(vii) A description of the status of the measures of effectiveness and performance described in subsection (c)(11) for the period covered by such report, including an analytical assessment of the impact of such measures on the goals of the initiative.

"(B) With respect to the periodic reviews conducted pursuant to subsection (e), the following:

"(i) The total number of research grants awarded by the Department in the fiscal year covered by the reviews.

"(ii) The number of reviews carried out pursuant to subsection (e)(1).

"(iii) The number of reviews carried out pursuant to subsection (e)(2).

"(iv) A description of the processes by which the heads of the components described in paragraph (1) of subsection (e) and the Under Secretary of Defense for Research and Engineering conducted the reviews under such subsection.

"(v) An assessment of issues identified during the reviews carried out under subsection (e), including a list of grants that were identified as having not been awarded in compliance with applicable policies of the Department of Defense.

"(3) Form.—The report submitted under paragraph (1) shall be submitted in both unclassified and classified formats, as appropriate.

"(g) Publication of Updated Lists.—

"(1) Submittal to congress.—Not later than January 1, 2021, and annually thereafter, the Secretary shall submit to the congressional defense committees the most recently updated lists described in paragraphs (8) and (9) of subsection (c).

"(2) Form.—Each list submitted under paragraph (1) shall be submitted in unclassified form but may include a classified annex.

"(3) Public availability.—Each list submitted under paragraph (1) shall be published on a publicly accessible internet website of the Department of Defense in a searchable format.

"(4) Intervening submittal and publication.—The Secretary may submit and publish an updated list described in paragraph (1) more frequently than required by that paragraph, as the Secretary considers necessary.

"(h) Designation of Academic Liaison.—

"(1) In general.—Not later than 180 days after the date of the enactment of the William M. (Mac) Thornberry National Defense Authorization Act for Fiscal Year 2021 [Pub. L. 116–283; approved Jan. 1, 2021], the Secretary, acting through the Under Secretary of Defense for Research and Engineering, shall designate an academic liaison with principal responsibility for working with the academic and research communities to protect Department-sponsored academic research of concern from undue foreign influence and threats.

"(2) Qualification.—The Secretary shall designate an individual under paragraph (1) who is an official of the Office of the Under Secretary of Defense for Research and Engineering.

"(3) Duties.—The duties of the academic liaison designated under paragraph (1) shall be as follows:

"(A) To serve as the liaison of the Department with the academic and research communities.

"(B) To execute initiatives of the Department related to the protection of Department-sponsored academic research of concern from undue foreign influence and threats, including the initiative required by subsection (a).

"(C) To conduct outreach and education activities for the academic and research communities on undue foreign influence and threats to Department-sponsored academic research of concern.

"(D) To coordinate and align academic security policies with Department component agencies, the Office of Science and Technology Policy, the intelligence community, and appropriate Federal agencies.

"(E) To the extent practicable, to coordinate with the intelligence community to share, not less frequently than annually, with the academic and research communities unclassified information, including counterintelligence information, on threats from undue foreign influence.

"(F) Any other related responsibility, as determined by the Secretary in consultation with the Under Secretary of Defense for Research and Engineering.

"(i) Institution of Higher Education Defined.—The term 'institution of higher education' has the meaning given such term in section 101 of the Higher Education Act of 1965 (20 U.S.C. 1001)."

Mechanisms for Expedited Access to Technical Talent and Expertise at Academic Institutions To Support Department of Defense Missions

Pub. L. 115–91, div. A, title II, §217, Dec. 12, 2017, 131 Stat. 1328, as amended by Pub. L. 115–232, div. A, title II, §§228, 236, Aug. 13, 2018, 132 Stat. 1687, 1694; Pub. L. 116–92, div. A, title II, §218, Dec. 20, 2019, 133 Stat. 1259; Pub. L. 116–283, div. A, title II, §244, Jan. 1, 2021, 134 Stat. 3488; Pub. L. 117–81, div. A, title II, §218, Dec. 27, 2021, 135 Stat. 1597, provided that:

"(a) Arrangements Authorized.—

"(1) In general.—Not later than 180 days after the date of the enactment of the William M. (Mac) Thornberry National Defense Authorization Act for Fiscal Year 2021 [Pub. L. 116–283; approved Jan. 1, 2021], the Secretary of Defense shall direct the secretaries of the military departments to establish not fewer than four multi-institution task order contracts, consortia, cooperative agreements, or other arrangements to facilitate expedited access to university technical expertise, including faculty, staff, and students, in support of Department of Defense missions in the areas specified in subsection (e).

"(2) Coordination.—In carrying out paragraph (1), the Secretary of Defense may act through the Defense Advanced Research Projects Agency or any other organization or element of the Department of Defense the Secretary considers appropriate.

"(3) Use for technical analyses and engineering support.—The Secretary may use an arrangement under paragraph (1) to fund technical analyses and other engineering support as required to address acquisition, management, training, and operational challenges, including support for classified programs and activities.

"(b) Limitation.—An arrangement established under subsection (a)(1) may not be used to fund research programs that can be executed through other Department of Defense basic research activities.

"(c) Consultation With Other Organizations.—For the purposes of providing technical expertise and reducing costs and duplicative efforts, the Secretary of Defense and the Secretaries of the military departments shall work to ensure and support the sharing of information on the research and consulting that is being carried out across the Federal Government in Department-wide shared information systems including the Defense Technical Information Center.

"(d) Policies and Procedures.—If the Secretary of Defense or a secretary of a military department establishes one or more arrangements under subsection (a)(1), the Secretary of Defense shall establish and implement policies and procedures to govern—

"(1) selection of participants in the arrangement or arrangements;

"(2) the awarding of task orders under the arrangement or arrangements;

"(3) maximum award size for tasks under the arrangement or arrangements;

"(4) the appropriate use of competitive awards and sole source awards under the arrangement or arrangements; and

"(5) technical areas under the arrangement or arrangements.

"(e) Mission Areas.—The areas specified in this subsection are as follows:

"(1) Cybersecurity.

"(2) Air and ground vehicles.

"(3) Shipbuilding.

"(4) Explosives detection and defeat.

"(5) Undersea warfare.

"(6) Trusted electronics.

"(7) Unmanned systems.

"(8) Directed energy.

"(9) Energy, power, and propulsion.

"(10) Management science and operations research.

"(11) Artificial intelligence.

"(12) Data analytics.

"(13) Business systems.

"(14) Technology transfer and transition.

"(15) Biological engineering and genetic enhancement.

"(16) High performance computing.

"(17) Materials science and engineering.

"(18) Quantum information sciences.

"(19) Special operations activities.

"(20) Modeling and simulation.

"(21) Autonomous systems.

"(22) Model based engineering.

"(23) Space.

"(24) Infrastructure resilience.

"(25) Photonics.

"(26) Autonomy.

"(27) Rapid prototyping.

"(28) Additive manufacturing.

"(29) Hypersonics.

"(30) 3D and virtual technology training platforms.

"(31) Nuclear science, security, and nonproliferation.

"(32) Chemical, biological, radiological, and nuclear defense.

"(33) Spectrum activities.

"(34) Research security and integrity.

"(35) Printed circuit boards.

"(36) Such other areas as the Secretary considers appropriate.

"(f) Requirement To Establish Consortia.—

"(1) In general.—In carrying out subsection (a)(1)—

"(A) the Secretary of Defense shall seek to establish at least one multi-institution consortium through the Office of the Secretary of Defense;

"(B) the Secretary of the Army shall seek to establish at least one multi-institution consortium through the Army;

"(C) the Secretary of the Navy shall seek to establish at least one multi-institution consortium through the Navy; and

"(D) the Secretary of the Air Force shall seek to establish at least one multi-institution consortium through the Air Force.

"(2) Report required.—Not later than September 30, 2022, the Secretary of Defense shall submit to the congressional defense committees [Committees on Armed Services and Appropriations of the Senate and the House of Representatives] a report on the status of the efforts to establish consortia under paragraph (1).

"(g) Sunset.—No new arrangements may be entered into under subsection (a)(1) after September 30, 2028.

"(h) Arrangements Established Under Subsection (a)(1) Defined.—In this section, the term 'arrangement established under subsection (a)(1)' means a multi-institution task order contract, consortia, cooperative agreement, or other arrangement established under subsection (a)(1)."

Information Operations and Engagement Technology Demonstrations

Pub. L. 114–92, div. A, title X, §1056, Nov. 25, 2015, 129 Stat. 984, which authorized the Secretary of Defense to carry out a series of technology demonstrations to assess innovative new technologies for information operations and information engagement to support the operational and strategic requirements of the commanders of the geographic and functional combatant commands, was repealed by Pub. L. 118–159, div. A, title VIII, §811(a)(1)(D), Dec. 23, 2024, 138 Stat. 1979.

Inclusion of Women and Minorities in Clinical Research Projects

Pub. L. 103–160, div. A, title II, §252, Nov. 30, 1993, 107 Stat. 1607, provided that:

"(a) General Rule.—In conducting or supporting clinical research, the Secretary of Defense shall ensure that—

"(1) women who are members of the Armed Forces are included as subjects in each project of such research; and

"(2) members of minority groups who are members of the Armed Forces are included as subjects of such research.

"(b) Waiver Authority.—The requirement in subsection (a) regarding women and members of minority groups who are members of the Armed Forces may be waived by the Secretary of Defense with respect to a project of clinical research if the Secretary determines that the inclusion, as subjects in the project, of women and members of minority groups, respectively—

"(1) is inappropriate with respect to the health of the subjects;

"(2) is inappropriate with respect to the purpose of the research; or

"(3) is inappropriate under such other circumstances as the Secretary of Defense may designate.

"(c) Requirement for Analysis of Research.—In the case of a project of clinical research in which women or members of minority groups will under subsection (a) be included as subjects of the research, the Secretary of Defense shall ensure that the project is designed and carried out so as to provide for a valid analysis of whether the variables being tested in the research affect women or members of minority groups, as the case may be, differently than other persons who are subjects of the research."

University Research Initiative Support Program

Pub. L. 103–160, div. A, title VIII, §802, Nov. 30, 1993, 107 Stat. 1701, as amended by Pub. L. 104–106, div. A, title II, §275, Feb. 10, 1996, 110 Stat. 241; Pub. L. 104–201, div. A, title II, §263, Sept. 23, 1996, 110 Stat. 2465; Pub. L. 112–239, div. A, title X, §1076(c)(2)(E), Jan. 2, 2013, 126 Stat. 1950, provided that:

"(a) Establishment.—The Secretary of Defense, through the Assistant Secretary of Defense for Research and Engineering, may establish a University Research Initiative Support Program.

"(b) Purpose.—Under the program, the Assistant Secretary may award grants and contracts to eligible institutions of higher education to support the conduct of research and development relevant to requirements of the Department of Defense.

"(c) Eligibility.—An institution of higher education is eligible for a grant or contract under the program if the institution has received less than a total of $2,000,000 in grants and contracts from the Department of Defense in the two most recent fiscal years for which complete statistics are available when proposals are requested for such grant or contract.

"(d) Competition Required.—The Assistant Secretary shall use competitive procedures in awarding grants and contracts under the program.

"(e) Selection Process.—In awarding grants and contracts under the program, the Assistant Secretary shall use a merit-based selection process that is consistent with the provisions of section 2361(a) of title 10 [now 10 U.S.C. 4141(a)], United States Code.

"(f) Regulations.—The Assistant Secretary shall prescribe regulations for carrying out the program.

"(g) Funding.—Of the amounts authorized to be appropriated under section 201 [107 Stat. 1583], $20,000,000 shall be available for the University Research Initiative Support Program."

Campuses Barring Military Recruiters; Cessation of Payments; Notification of Secretary of Defense

Pub. L. 92–436, title VI, §606, Sept. 29, 1972, 86 Stat. 740, provided that:

"(a) No part of the funds appropriated pursuant to this or any other Act for the Department of Defense or any of the Armed Forces may be used at any institution of higher learning if the Secretary of Defense or his designee determines that recruiting personnel of any of the Armed Forces of the United States are being barred by the policy of such institution from the premises of the institution: except in a case where the Secretary of the service concerned certifies to the Congress in writing that a specific course of instruction is not available at any other institution of higher learning and furnishes to the Congress the reasons why such course of instruction is of vital importance to the security of the United States.

"(b) The prohibition made by subsection (a) of this section as it applies to research and development funds shall not apply if the Secretary of Defense or his designee determines that the expenditure is a continuation or a renewal of a previous program with such institution which is likely to make a significant contribution to the defense effort.

"(c) The Secretaries of the military departments shall furnish to the Secretary of Defense or his designee within 60 days after the date of enactment of this Act [Sept. 29, 1972] and each January 31 and June 30 thereafter the names of any institution of higher learning which the Secretaries determine on such dates are affected by the prohibitions contained in this section."

Similar provisions were contained in the following prior authorization acts:

Pub. L. 92–156, title V, §502, Nov. 17, 1971, 85 Stat. 427.

Pub. L. 91–441, title V, §510, Oct. 7, 1970, 84 Stat. 914.

[§§4002, 4003. Omitted]

Editorial Notes

Codification

As enacted, Pub. L. 116–283, div. A, title XVIII, §1841(b)(1), Jan. 1, 2021, 134 Stat. 4243, originally transferred sections 2371 and 2371b of this title to sections 4002 and 4003, respectively, to become effective Jan. 1, 2022. Subsequently, Pub. L. 117–81, div. A, title XVII, §1701(u)(2)(B), Dec. 27, 2021, 135 Stat. 2151, amended section 1841(b)(1) of Pub. L. 116–283, effective as if included therein, so as to eliminate those transfers, thereby omitting these sections before they took effect. As amended by section 1701(u)(2)(B) of Pub. L. 117–81, sections 2371 and 2371b were transferred to sections 4021 and 4022 of this title, respectively.

§4004. Contract authority for development and demonstration of initial or additional prototype units

(a) Authority.—A contract initially awarded from the competitive selection of a proposal resulting from a general solicitation referred to in section 3012(2) of this title may contain a contract line item or contract option for—

(1) the development and demonstration or initial production of technology developed under the contract; or

(2) the delivery of initial or additional items if the item or a prototype thereof is created as the result of work performed under the contract.

(b) Limitations.—

(1) Minimal amount.—A contract line item or contract option described in subsection (a)(2) shall require the delivery of the minimal amount of initial or additional items to allow for the timely competitive solicitation and award of a follow-on development or production contract for those items.

(2) Term.—A contract line item or contract option described in subsection (a) shall be for a term of not more than 2 years.

(3) Dollar value of work.—The dollar value of the work to be performed pursuant to a contract line item or contract option described in subsection (a) may not exceed $100,000,000, in fiscal year 2017 constant dollars.

(4) Applicability.—The authority provided in subsection (a) applies only to the Secretary of Defense, the Secretary of the Army, the Secretary of the Navy, and the Secretary of the Air Force.

(c) Procedures.—The Secretary of Defense shall establish procedures to collect and analyze information on the use and benefits of the authority under this section and related impacts on performance, affordability, and capability delivery.

(Added Pub. L. 115–91, div. A, title VIII, §861(a)(1), Dec. 12, 2017, 131 Stat. 1493, §2302e; renumbered §4004 and amended Pub. L. 116–283, div. A, title VIII, §831(a), title XVIII, §§1818(c), 1841(b)(1), Jan. 1, 2021, 134 Stat. 3753, 4243; Pub. L. 116–283, div. A, title XVIII, §1841(b)(2)(D), as added Pub. L. 117–81, div. A, title XVII, §1701(u)(2)(F)(i)(V), Dec. 27, 2021, 135 Stat. 2152; Pub. L. 117–81, div. A, title XVII, §1701(u)(2)(B), (v)(1)(A), Dec. 27, 2021, 135 Stat. 2151, 2154.)

Editorial Notes

Amendments

2021—Pub. L. 116–283, §1841(b)(1), as amended by Pub. L. 117–81, §1701(u)(2)(B), renumbered section 2302e of this title as this section.

Pub. L. 116–283, §1818(c), which directed the renumbering of section 2302e of this title as section 3345 instead of this section and the substitution of "section 3012(2)" for "section 2302(2)(B)" in subsec. (a), was repealed by Pub. L. 117–81, §1701(v)(1)(A), effective as if included therein, so that such renumbering and substitution were no longer directed.

Pub. L. 116–283, §831(a)(1), substituted "development and demonstration" for "advanced development" in section catchline.

Subsec. (a). Pub. L. 116–283, §1841(b)(2)(D), as added by Pub. L. 117–81, §1701(u)(2)(F)(i)(V), substituted "section 3012(2)" for "section 2302(2)(B)" in introductory provisions.

Subsec. (a)(1). Pub. L. 116–283, §831(a)(2), substituted "development and demonstration" for "provision of advanced component development, prototype,".

Subsec. (c). Pub. L. 116–283, §831(a)(3), added subsec. (c).

Statutory Notes and Related Subsidiaries

Effective Date of 2021 Amendment

Amendment by Pub. L. 117–81 applicable as if included in the enactment of title XVIII of Pub. L. 116–283 as enacted, see section 1701(a)(2) of Pub. L. 117–81, set out in a note preceding section 3001 of this title and note below.

Amendment by section 1818(c) of 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 a note preceding section 3001 of this title.

§4007. Science and technology programs to be conducted so as to foster the transition of science and technology to higher levels of research, development, test, and evaluation

(a) Policy.—Each official specified in subsection (b) shall ensure that the management and conduct of the science and technology programs under the authority of that official are carried out in a manner that will foster the transition of science and technology to higher levels of research, development, test, and evaluation.

(b) Covered Officials.—Subsection (a) applies to the following officials of the Department of Defense:

(1) The Under Secretary of Defense for Research and Engineering.

(2) The Secretary of each military department.

(3) The Director of the Defense Advanced Research Projects Agency.

(4) The directors and heads of other offices and agencies of the Department of Defense with assigned research, development, test, and evaluation responsibilities.

(Added Pub. L. 106–398, §1 [[div. A], title IX, §904(a)(1)], Oct. 30, 2000, 114 Stat. 1654, 1654A-225, §2359; amended Pub. L. 116–92, div. A, title IX, §902(55), Dec. 20, 2019, 133 Stat. 1549; renumbered §4007, Pub. L. 116–283, div. A, title XVIII, §1841(b)(1), (c), Jan. 1, 2021, 134 Stat. 4243; Pub. L. 117–81, div. A, title XVII, §1701(u)(2)(B), (D), Dec. 27, 2021, 135 Stat. 2151.)

Editorial Notes

Amendments

2021—Pub. L. 116–283, §1841(c), which directed the renumbering of section 2359 of this title as this section, was amended generally by Pub. L. 117–81, §1701(u)(2)(D), effective as if included therein, so that such renumbering was no longer directed.

Pub. L. 116–283, §1841(b)(1), as amended by Pub. L. 117–81, §1701(u)(2)(B), renumbered section 2359 of this title as this section.

2019—Subsec. (b)(1). Pub. L. 116–92 substituted "Under Secretary of Defense for Research and Engineering" for "Under Secretary of Defense for Acquisition, Technology, and Logistics".

Statutory Notes and Related Subsidiaries

Effective Date of 2021 Amendment

Amendment by Pub. L. 117–81 applicable as if included in the enactment of title XVIII of Pub. L. 116–283 as enacted, see section 1701(a)(2) of Pub. L. 117–81, set out in a note preceding section 3001 of this title and note below.

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 a note preceding section 3001 of this title.

Pilot Program on the Use of Private Sector Partnerships To Promote Technology Transition

Pub. L. 117–81, div. A, title II, §231, Dec. 27, 2021, 135 Stat. 1612, provided that:

"(a) In General.—Consistent with section 2359 of title 10, United States Code [now 10 U.S.C. 4007], the Secretary of Defense shall carry out a pilot program to foster the transition of the science and technology programs, projects, and activities of the Department of Defense from the research, development, pilot, and prototyping phases into acquisition activities and operational use. Under the pilot program, the Secretary shall seek to enter into agreements with qualified private sector organizations to support—

"(1) matching technology developers with programs, projects, and activities of the Department that may have a use for the technology developed by such developers;

"(2) providing technical assistance to appropriate parties on participating in the procurement programs and acquisition processes of the Department, including training and consulting on programming, budgeting, contracting, requirements, and other relevant processes and activities; and

"(3) overcoming barriers and challenges facing technology developers, including challenges posed by restrictions on accessing secure facilities, networks, and information.

"(b) Priority.—In carrying out the activities described in paragraphs (1) through (3) of subsection (a), a qualified private sector organization shall give priority to technology producers that are small business concerns (as defined under section 3 of the Small Business Act (15 U.S.C. 632)), research institutions (as defined in section 9(e) of such Act [15 U.S.C. 638(e)]), or institutions of higher education (as defined in section 101 of the Higher Education Act of 1965 (20 U.S.C 1001)).

"(c) Terms of Agreements.—The terms of an agreement under subsection (a) shall be determined by the Secretary of Defense.

"(d) Data Collection.—

"(1) Plan required before implementation.—The Secretary of Defense may not enter into an agreement under subsection (a) until the date on which the Secretary—

"(A) completes a plan to for carrying out the data collection required under paragraph (2); and

"(B) submits the plan to the congressional defense committees [Committees on Armed Services and Appropriations of the Senate and the House of Representatives].

"(2) Data collection required.—The Secretary of Defense shall collect and analyze data on the pilot program under this section for the purposes of—

"(A) developing and sharing best practices for facilitating the transition of science and technology from the research, development, pilot, and prototyping phases into acquisition activities and operational use within the Department of Defense;

"(B) providing information to the leadership of the Department on the implementation of the pilot program and related policy issues; and

"(C) providing information to the congressional defense committees as required under subsection (e).

"(e) Briefing.—Not later than December 31, 2022, the Secretary of Defense shall provide to the congressional defense committees a briefing on the progress of the Secretary in implementing the pilot program under this section and any related policy issues.

"(f) Consultation.—In carrying out the pilot program under this section, the Secretary of Defense shall consult with—

"(1) service acquisition executives (as defined in section 101 of title 10, United States Code);

"(2) the heads of appropriate Defense Agencies and Department of Defense Field Activities;

"(3) procurement technical assistance centers (as described in chapter 142 [see 10 U.S.C. 4951 et seq.] of title 10, United States Code); and

"(4) such other individuals and organizations as the Secretary determines appropriate.

"(g) Termination.—The pilot program under this section shall terminate on the date that is five years after the date on which Secretary of Defense enters into the first agreement with a qualified private sector organization under subsection (a).

"(h) Comptroller General Assessment and Report.—

"(1) Assessment.—The Comptroller General of the United States shall conduct an assessment of the pilot program under this section. The assessment shall include an evaluation of the effectiveness of the pilot program with respect to—

"(A) facilitating the transition of science and technology from the research, development, pilot, and prototyping phases into acquisition activities and operational use within the Department of Defense; and

"(B) protecting sensitive information in the course of the pilot program.

"(2) Report.—Not later than the date specified in paragraph (3), the Comptroller General shall submit to the congressional defense committees a report on the results of the assessment conducted under paragraph (1).

"(3) Date specified.—The date specified in this paragraph is the earlier of—

"(A) four years after the date on which the Secretary of Defense enters into the first agreement with a qualified private sector organization under subsection (a): or

"(B) five years after the date of the enactment of this Act [Dec. 27, 2021]."

Proof of Concept Commercialization of Dual-Use Technology Pilot Program

Pub. L. 113–66, div. A, title XVI, §1603, Dec. 26, 2013, 127 Stat. 944, as amended by Pub. L. 113–291, div. A, title VIII, §818, Dec. 19, 2014, 128 Stat. 3432; Pub. L. 116–92, div. A, title II, §217, Dec. 20, 2019, 133 Stat. 1258, authorized the establishment and implementation of the Proof of Concept Commercialization of Dual-Use Technology Pilot Program with the purpose of accelerating commercialization of basic research innovations from certain institutions and provided that the program shall terminate on Sept. 30, 2024.

[§§4008, 4009. Omitted]

Editorial Notes

Codification

As enacted, Pub. L. 116–283, div. A, title XVIII, §1841(c), Jan. 1, 2021, 134 Stat. 4243, originally transferred sections 2374 and 2357 of this title to sections 4008 and 4009, respectively, to become effective Jan. 1, 2022. Subsequently, Pub. L. 117–81, div. A, title XVII, §1701(u)(2)(D), Dec. 27, 2021, 135 Stat. 2151, amended section 1841(c) of Pub. L. 116–283, effective as if included therein, so as to eliminate those transfers, thereby omitting these sections before they took effect. Other amendments by Pub. L. 117–81 resulted in transfers of sections 2374 and 2357 to sections 4024 and 4067 of this title, respectively.

Pub. L. 117–81, div. A, title XVII, §1701(d)(7), Dec. 27, 2021, 135 Stat. 2136, which directed amendment of section 4008 of this title by substituting "section 3063" for "section 2303(a)" in subsecs. (a) and (d), effective after the amendments by title XVIII of Pub. L. 116–283 took effect, could not be executed after the amendment by section 1701(u)(2)(D) of Pub. L. 117–81, which eliminated the transfer of section 2374 of this title to section 4008, effective as if included in title XVIII of Pub. L. 116–283.

§4010. Defense Established Program to Stimulate Competitive Research

(a) Program Required.—The Secretary of Defense, acting through the Under Secretary of Defense for Research and Engineering, shall carry out a Defense Established Program to Stimulate Competitive Research (DEPSCoR) as part of the university research programs of the Department of Defense.

(b) Program Objectives.—The objectives of the program are as follows:

(1) To increase the number of university researchers in eligible States capable of performing science and engineering research responsive to the needs of the Department of Defense.

(2) To enhance the capabilities of institutions of higher education in eligible States to develop, plan, and execute science and engineering research that is relevant to the mission of the Department of Defense and competitive under the peer-review systems used for awarding Federal research assistance.

(3) To increase the probability of long-term growth in the competitively awarded financial assistance that institutions of higher education in eligible States receive from the Federal Government for science and engineering research.

(c) Program Activities.—In order to achieve the program objectives, the following activities are authorized under the program:

(1) Competitive award of grants for research and instrumentation to support such research.

(2) Competitive award of financial assistance for graduate students.

(3) To provide assistance to science and engineering researchers at institutions of higher education in eligible States through collaboration between Department of Defense laboratories and such researchers.

(4) Any other activities that are determined necessary to further the achievement of the objectives of the program.

(d) Eligible States.—(1) The Under Secretary of Defense for Research and Engineering shall designate which States are eligible States for the purposes of this section.

(2) The Under Secretary shall designate a State as an eligible State if, as determined by the Under Secretary—

(A) the average annual amount of all Department of Defense obligations for science and engineering research and development that were in effect with institutions of higher education in the State for the three fiscal years preceding the fiscal year for which the designation is effective or for the last three fiscal years for which statistics are available is less than the amount determined by multiplying 60 percent times the amount equal to 1/50 of the total average annual amount of all Department of Defense obligations for science and engineering research and development that were in effect with institutions of higher education in the United States for such three preceding or last fiscal years, as the case may be; and

(B) the State has demonstrated a commitment to developing research bases in the State and to improving science and engineering research and education programs in areas relevant to the mission of the Department of Defense at institutions of higher education in the State.

(3) The Under Secretary shall not remove a designation of a State under paragraph (2) because the State exceeds the funding levels specified under subparagraph (A) of such paragraph unless the State has exceeded such funding levels for at least two consecutive years.

(e) Coordination With Similar Federal Programs.—(1) The Secretary may consult with the Director of the National Science Foundation and the Director of the Office of Science and Technology Policy in the planning, development, and execution of the program and may coordinate the program with the Established Program to Stimulate Competitive Research conducted by the National Science Foundation and with similar programs sponsored by other departments and agencies of the Federal Government.

(2) All solicitations under the Defense Established Program to Stimulate Competitive Research may be made to, and all awards may be made through, the State committees established for purposes of the Established Program to Stimulate Competitive Research conducted by the National Science Foundation.

(3) A State committee referred to in paragraph (2) shall ensure that activities carried out in the State of that committee under the Defense Established Program to Stimulate Competitive Research are relevant to the mission of the Department of Defense and coordinated with the activities carried out in the State under other similar initiatives of the Federal Government to stimulate competitive research.

(f) State Defined.—In this section, the term "State" means a State of the United States, the District of Columbia, the Commonwealth of Puerto Rico, Guam, the Virgin Islands, American Samoa, and the Commonwealth of the Northern Mariana Islands.

(Added Pub. L. 117–81, div. A, title II, §214(a), Dec. 27, 2021, 135 Stat. 1589.)

Statutory Notes and Related Subsidiaries

Effective Date

Pub. L. 117–81, div. A, title II, §214(d), Dec. 27, 2021, 135 Stat. 1591, provided that: "This section [enacting this section and repealing provisions set out as notes under section 2358 of this title] and the amendments and repeals made by this section shall take effect immediately after the effective date of the amendments made by title XVIII of the William M. (Mac) Thornberry National Defense Authorization Act for Fiscal Year 2021 (Public Law 116–283) [Jan. 1, 2022]."

§4014. Coordination and communication of defense research activities and technology domain awareness

(a) Coordination of Department of Defense Research, Development, and Technological Data.—The Secretary of Defense shall promote, monitor, and evaluate programs for the communication and exchange of research, development, and technological data—

(1) among the Defense research facilities, combatant commands, and other organizations that are involved in developing for the Department of Defense the technological requirements for new items for use by combat forces;

(2) among Defense research facilities and other offices, agencies, and bureaus in the Department that are engaged in related technological matters;

(3) among other research facilities and other departments or agencies of the Federal Government that are engaged in research, development, and technological matters;

(4) among private commercial, research institution, and university entities engaged in research, development, and technological matters potentially relevant to defense on a voluntary basis;

(5) to the extent practicable, to achieve full awareness of scientific and technological advancement and innovation wherever it may occur, whether funded by the Department of Defense, another element of the Federal Government, or other entities; and

(6) through development and distribution of clear technical communications to the public, military operators, acquisition organizations, and civilian and military decision-makers that convey successes of research and engineering activities supported by the Department and the contributions of such activities to support national needs.

(b) Defense Research Facility Defined.—In this section, the term "Defense research facility" has the meaning given that term by section 4125(b) of this title.

(Added and amended Pub. L. 116–283, div. A, title XVIII, §1841(d), Jan. 1, 2021, 134 Stat. 4243; Pub. L. 117–81, div. A, title XVII, §1701(u)(2)(E), Dec. 27, 2021, 135 Stat. 2151; Pub. L. 118–31, div. A, title XVIII, §1801(a)(30), Dec. 22, 2023, 137 Stat. 685.)

Editorial Notes

Codification

The section catchline and text of subsec. (a) of section 2364 of this title, which were transferred to this section by Pub. L. 116–283, §1841(d)(1), were based on Pub. L. 99–661, div. A, title II, §234(c)(1), Nov. 14, 1986, 100 Stat. 3848; Pub. L. 100–26, §3(1)(A), Apr. 21, 1987, 101 Stat. 273; Pub. L. 100–180, div. A, title XII, §1231(10)(B), Dec. 4, 1987, 101 Stat. 1160; Pub. L. 114–92, div. A, title II, §214(a)(1), (3), Nov. 25, 2015, 129 Stat. 767, 768; Pub. L. 115–91, div. A, title X, §1081(a)(34), Dec. 12, 2017, 131 Stat. 1596.

Amendments

2023—Subsec. (b). Pub. L. 118–31 substituted "section 4125(b) of this title" for "section 4142(b) of this title".

2021—Pub. L. 116–283, §1841(d)(1), as amended by Pub. L. 117–81, §1701(u)(2)(E), transferred section catchline and subsec. (a) of section 2364 of this title to this section.

Subsec. (b). Pub. L. 116–283, §1841(d)(2), added subsec. (b).

Statutory Notes and Related Subsidiaries

Effective Date of 2021 Amendment

Amendment by Pub. L. 117–81 applicable as if included in the enactment of title XVIII of Pub. L. 116–283 as enacted, see section 1701(a)(2) of Pub. L. 117–81, set out in a note preceding section 3001 of this title and note below.

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.

Collaboration Between Defense Laboratories, Industry, and Academia; Open Campus Program

Pub. L. 115–232, div. A, title II, §222, Aug. 13, 2018, 132 Stat. 1682, provided that:

"(a) Collaboration.—The Secretary of Defense may carry out activities to prioritize innovative collaboration between Department of Defense science and technology reinvention laboratories, industry, and academia.

"(b) Open Campus Program.—In carrying out subsection (a), the Secretary, acting through the Commander of the Air Force Research Laboratory, the Commander of the Army Research, Development and Engineering Command, and the Chief of Naval Research, or such other officials of the Department as the Secretary considers appropriate, may develop and implement an open campus program for the Department science and technology reinvention laboratories which shall be modeled after the open campus program of the Army Research Laboratory."

[§4015. Omitted]

Editorial Notes

Codification

As enacted, Pub. L. 116–283, div. A, title XVIII, §1841(c), Jan. 1, 2021, 134 Stat. 4243, originally transferred section 2361 of this title to this section, to become effective Jan. 1, 2022. Subsequently, Pub. L. 117–81, div. A, title XVII, §1701(u)(2)(D), Dec. 27, 2021, 135 Stat. 2151, amended section 1841(c) of Pub. L. 116–283, effective as if included therein, so as to eliminate that transfer, thereby omitting this section before it took effect. Another amendment by Pub. L. 117–81 resulted in the transfer of section 2361 to section 4141 of this title.

SUBCHAPTER II—AGREEMENTS

Editorial Notes

Amendments

2021—Pub. L. 116–283, div. A, title XVIII, §1841(c)(2), as added by Pub. L. 117–81, div. A, title XVII, §1701(u)(2)(D), Dec. 27, 2021, 135 Stat. 2151, added subchapter heading. Heading was editorially conformed to the style used in this title.

§4021. Research projects: transactions other than contracts and grants

(a) Additional Forms of Transactions Authorized.—The Secretary of Defense and the Secretary of each military department may enter into transactions (other than contracts, cooperative agreements, and grants) under the authority of this subsection in carrying out basic, applied, and advanced research projects. The authority under this subsection is in addition to the authority provided in section 4001 of this title to use contracts, cooperative agreements, and grants in carrying out such projects.

(b) Exercise of Authority by Secretary of Defense.—In any exercise of the authority in subsection (a), the Secretary of Defense shall act through the Defense Advanced Research Projects Agency, the Defense Innovation Unit, or any other element of the Department of Defense that the Secretary may designate.

(c) Advance Payments.—The authority provided under subsection (a) may be exercised without regard to section 3324 of title 31.

(d) Recovery of Funds.—(1) A cooperative agreement for performance of basic, applied, or advanced research authorized by section 4001 of this title and a transaction authorized by subsection (a) may include a clause that requires a person or other entity to make payments to the Department of Defense or any other department or agency of the Federal Government as a condition for receiving support under the agreement or other transaction.

(2) The amount of any payment received by the Federal Government pursuant to a requirement imposed under paragraph (1) may be credited, to the extent authorized by the Secretary of Defense, to the appropriate account established under subsection (f). Amounts so credited shall be merged with other funds in the account and shall be available for the same purposes and the same period for which other funds in such account are available.

(e) Conditions.—The Secretary of Defense shall ensure that—

(1) to the maximum extent practicable, no cooperative agreement containing a clause under subsection (d) and no transaction entered into under subsection (a) provides for research that duplicates research being conducted under existing programs carried out by the Department of Defense; and

(2) to the extent that the Secretary determines practicable, the funds provided by the Government under a cooperative agreement containing a clause under subsection (d) or a transaction authorized by subsection (a) do not exceed the total amount provided by other parties to the cooperative agreement or other transaction.

(f) Support Accounts.—There is hereby established on the books of the Treasury separate accounts for each of the military departments, the Defense Innovation Unit, and the Defense Advanced Research Projects Agency for support of research projects and development projects provided for in cooperative agreements containing a clause under subsection (d) and research projects provided for in transactions entered into under subsection (a). Funds in those accounts shall be available for the payment of such support.

(g) Education and Training.—The Secretary of Defense shall—

(1) ensure that management, technical, and contracting personnel of the Department of Defense involved in the award or administration of transactions under this section or other innovative forms of contracting are afforded opportunities for adequate education and training; and

(2) establish minimum levels and requirements for continuous and experiential learning for such personnel, including levels and requirements for acquisition certification programs.

(h) Guidance.—The Secretary of Defense shall issue guidance to carry out this section.

(i) Protection of Certain Information From Disclosure.—(1) Disclosure of information described in paragraph (2) is not required, and may not be compelled, under section 552 of title 5 for five years after the date on which the information is received by the Department of Defense.

(2)(A) Paragraph (1) applies to information described in subparagraph (B) that is in the records of the Department of Defense if the information was submitted to the Department in a competitive or noncompetitive process having the potential for resulting in an award, to the party submitting the information, of a cooperative agreement for performance of basic, applied, or advanced research authorized by section 4001 of this title or another transaction authorized by subsection (a).

(B) The information referred to in subparagraph (A) is the following:

(i) A proposal, proposal abstract, and supporting documents.

(ii) A business plan submitted on a confidential basis.

(iii) Technical information submitted on a confidential basis.

(Added Pub. L. 101–189, div. A, title II, §251(a)(1), Nov. 29, 1989, 103 Stat. 1403, §2371; amended Pub. L. 101–510, div. A, title XIV, §1484(k)(9), Nov. 5, 1990, 104 Stat. 1719; Pub. L. 102–190, div. A, title VIII, §826, Dec. 5, 1991, 105 Stat. 1442; Pub. L. 102–484, div. A, title II, §217, Oct. 23, 1992, 106 Stat. 2352; Pub. L. 103–35, title II, §201(c)(4), May 31, 1993, 107 Stat. 98; Pub. L. 103–160, div. A, title VIII, §827(b), title XI, §1182(a)(6), Nov. 30, 1993, 107 Stat. 1712, 1771; Pub. L. 103–355, title I, §1301(b), Oct. 13, 1994, 108 Stat. 3285; Pub. L. 104–106, div. A, title XV, §1502(a)(1), Feb. 10, 1996, 110 Stat. 502; Pub. L. 104–201, div. A, title II, §267(a)–(c)(1)(A), title X, §1073(e)(1)(B), Sept. 23, 1996, 110 Stat. 2467, 2468, 2658; Pub. L. 105–85, div. A, title VIII, §832, Nov. 18, 1997, 111 Stat. 1842; Pub. L. 105–261, div. A, title VIII, §817, Oct. 17, 1998, 112 Stat. 2089; Pub. L. 106–65, div. A, title X, §1067(1), Oct. 5, 1999, 113 Stat. 774; Pub. L. 108–136, div. A, title X, §1031(a)(19), Nov. 24, 2003, 117 Stat. 1597; Pub. L. 113–291, div. A, title X, §1071(f)(20), Dec. 19, 2014, 128 Stat. 3511; Pub. L. 115–91, div. A, title VIII, §863, Dec. 12, 2017, 131 Stat. 1494; renumbered §4021 and amended Pub. L. 116–283, div. A, title XVIII, §1841(b)(1), (2)(B), Jan. 1, 2021, 134 Stat. 4243; Pub. L. 117–81, div. A, title VIII, §821(a), title XVII, §1701(u)(2)(B), (F)(i)(III), Dec. 27, 2021, 135 Stat. 1825, 2151; Pub. L. 118–31, div. A, title IX, §913(a)(2), Dec. 22, 2023, 137 Stat. 367.)

Editorial Notes

Prior Provisions

A prior section 4021 was renumbered section 7371 of this title.

Another prior section 4021, act Aug. 10, 1956, ch. 1041, 70A Stat. 233, related to appointments in professional and scientific service, prior to repeal by Pub. L. 85–861, §36B(11), Sept. 2, 1958, 72 Stat. 1570.

Amendments

2023—Subsec. (b). Pub. L. 118–31, §913(a)(2)(A), inserted ", the Defense Innovation Unit," after "Defense Advanced Research Projects Agency".

Subsec. (f). Pub. L. 118–31, §913(a)(2)(B), substituted ", the Defense Innovation Unit, and the Defense Advanced Research Projects Agency" for "and the Defense Advanced Research Projects Agency".

2021—Pub. L. 116–283, §1841(b)(2)(B), as amended by Pub. L. 117–81, §1701(u)(2)(F)(i)(III), substituted "section 4001" for "section 2358" wherever appearing.

Pub. L. 116–283, §1841(b)(1), as amended by Pub. L. 117–81, §1701(u)(2)(B), renumbered section 2371 of this title as this section.

Subsec. (e). Pub. L. 117–81, §821(a)(1), struck out par. (1) designation before "The Secretary of Defense", redesignated subpars. (A) and (B) of former par. (1) as pars. (1) and (2), respectively, and struck out former par. (2) which read as follows: "A cooperative agreement containing a clause under subsection (d) or a transaction authorized by subsection (a) may be used for a research project when the use of a standard contract, grant, or cooperative agreement for such project is not feasible or appropriate."

Subsec. (h). Pub. L. 117–81, §821(a)(2), amended subsec. (h) generally. Prior to amendment, text read as follows: "The Secretary of Defense shall prescribe regulations to carry out this section."

2017—Subsecs. (g), (h). Pub. L. 115–91 added subsec. (g) and redesignated former subsec. (g) as (h).

2014—Subsec. (h). Pub. L. 113–291 struck out subsec. (h) which related to annual report on use of certain cooperative agreements and transactions.

2003—Subsec. (h)(3). Pub. L. 108–136 added par. (3).

1999—Subsec. (h)(1). Pub. L. 106–65 substituted "and the Committee on Armed Services" for "and the Committee on National Security" in introductory provisions.

1998—Subsec. (i)(2)(A). Pub. L. 105–261 substituted "cooperative agreement for performance of basic, applied, or advanced research authorized by section 2358 of this title" for "cooperative agreement that includes a clause described in subsection (d)".

1997—Subsec. (i). Pub. L. 105–85 added subsec. (i).

1996—Subsec. (b). Pub. L. 104–201, §1073(e)(1)(B), inserted "Defense" before "Advanced Research Projects Agency".

Subsec. (e). Pub. L. 104–201, §267(a), inserted "(1)" before "The Secretary of Defense", redesignated former pars. (1) and (2) as subpars. (A) and (B), respectively, inserted "and" after semicolon at end of subpar. (A), substituted a period for "; and" at end of subpar. (B), added par. (2), and struck out par. (3) which read as follows: "a cooperative agreement containing a clause under subsection (d) or a transaction authorized under subsection (a) is used for a research project only when the use of a standard contract, grant, or cooperative agreement for such project is not feasible or appropriate."

Subsec. (f). Pub. L. 104–201, §1073(e)(1)(B), inserted "Defense" before "Advanced Research Projects Agency".

Subsec. (h). Pub. L. 104–201, §267(b), reenacted heading without change and amended text generally. Prior to amendment, text read as follows: "Not later than 60 days after the end of each fiscal year, the Secretary of Defense shall submit to the Committee on Armed Services of the Senate and the Committee on National Security of the House of Representatives a report on all cooperative agreements entered into under section 2358 of this title during such fiscal year that contain a clause authorized by subsection (d) and on all transactions entered into under subsection (a) during such fiscal year. The report shall contain, with respect to each such cooperative agreement and transaction, the following:

"(1) A general description of the cooperative agreement or other transaction (as the case may be), including the technologies for which research is provided for under such agreement or transaction.

"(2) The potential military and, if any, commercial utility of such technologies.

"(3) The reasons for not using a contract or grant to provide support for such research.

"(4) The amount of the payments, if any, that were received by the Federal Government during the fiscal year covered by the report pursuant to a clause included in such cooperative agreement or other transaction pursuant to subsection (d).

"(5) The amount of the payments reported under paragraph (4), if any, that were credited to each account established under subsection (f)."

Pub. L. 104–106 substituted "Committee on Armed Services of the Senate and the Committee on National Security of the House of Representatives" for "Committees on Armed Services of the Senate and House of Representatives".

Subsec. (i). Pub. L. 104–201, §1073(e)(1)(B), which directed amendment of subsec. (i) by inserting "Defense" before "Advanced Research Projects Agency", could not be executed because of the renumbering of subsec. (i) as section 2371a of this title by Pub. L. 104–201, §267(c)(1)(A). See below.

Pub. L. 104–201, §267(c)(1)(A), renumbered subsec. (i) of this section as section 2371a of this title.

1994—Pub. L. 103–355 amended section generally. Prior to amendment section related to cooperative agreements and other transactions for advanced research projects.

1993—Subsec. (a). Pub. L. 103–160, §827(b)(1)(C), substituted "section 2358 of this title" for "subsection (a)" in par. (1) and "subsection (d)" for "subsection (e)" in par. (2).

Pub. L. 103–160, §827(b)(1)(A), (B), redesignated subsec. (b) as (a) and struck out former subsec. (a), as amended by Pub. L. 103–160, §1182(a)(6), (h), which read as follows: "The Secretary of Defense, in carrying out advanced research projects through the Advanced Research Projects Agency, and the Secretary of each military department, in carrying out advanced research projects, may enter into cooperative agreements and other transactions with any person, any agency or instrumentality of the United States, any unit of State or local government, any educational institution, and any other entity."

Pub. L. 103–160, §1182(a)(6), substituted "Advanced Research Projects Agency" for "Defense Advanced Research Projects Agency".

Subsec. (b). Pub. L. 103–160, §827(b)(1)(B), redesignated subsec. (c) as (b). Former subsec. (b) redesignated (a).

Subsec. (c). Pub. L. 103–160, §827(b)(1)(B), (2)(A), redesignated subsec. (d) as (c) and inserted "and development" after "research" in two places in par. (1). Former subsec. (c) redesignated (b).

Subsec. (d). Pub. L. 103–160, §827(b)(1)(B), (D), (2)(B), redesignated subsec. (e), as amended by Pub. L. 103–160, §1182(a)(6), (h), as (d) and substituted "section 2358 of this title" for "subsection (a)" and "research and development" for "advanced research". Former subsec. (d) redesignated (c).

Subsec. (e). Pub. L. 103–160, §827(b)(1)(B), (E), (2)(B), (C), redesignated subsec. (f) as (e), in par. (1) substituted "research and development are" for "advanced research is", in par. (3) substituted "research and development" for "advanced research", in par. (4) substituted "subsection (a)" for "subsection (b)", and in par. (5) substituted "subsection (d)" for "subsection (e)". Former subsec. (e) redesignated (d).

Pub. L. 103–160, §1182(a)(6), substituted "Advanced Research Projects Agency" for "Defense Advanced Research Projects Agency".

Subsec. (f). Pub. L. 103–160, §827(b)(1)(B), redesignated subsec. (g), as amended by Pub. L. 103–160, §1182(a)(6), (h), as (f). Former subsec. (f) redesignated (e).

Subsec. (g). Pub. L. 103–160, §827(b)(1)(B), redesignated subsec. (g), as amended by Pub. L. 103–160, §1182(a)(6), (h), as (f).

Pub. L. 103–160, §1182(a)(6), substituted "Advanced Research Projects Agency" for "Defense Advanced Research Projects Agency".

Pub. L. 103–35 substituted "granted by section 12" for "granted by section 11" and "provisions of sections 11 and 12" for "provisions of sections 10 and 11".

1992—Subsec. (g). Pub. L. 102–484 added subsec. (g).

1991—Subsec. (a). Pub. L. 102–190, §826(a), inserted "and the Secretary of each military department, in carrying out advanced research projects,".

Subsec. (b)(1). Pub. L. 102–190, §826(b)(1)(A), struck out "by the Secretary" after "transactions entered into".

Subsec. (b)(2). Pub. L. 102–190, §826(b)(1)(B), substituted "to the appropriate account" for "to the account".

Subsec. (d). Pub. L. 102–190, §826(b)(2), substituted "The Secretary of Defense" for "The Secretary" in introductory provisions.

Subsec. (e). Pub. L. 102–190, §826(b)(3), substituted "separate accounts for each of the military departments and the Defense Advanced Research Projects Agency" for "an account" and "those accounts" for "such account".

Subsec. (f)(5). Pub. L. 102–190, §826(b)(4), substituted "each account" for "the account".

Subsec. (g). Pub. L. 102–190, §826(c), struck out subsec. (g) which read as follows: "The authority of the Secretary to enter into cooperative agreements and other transactions under this section expires at the close of September 30, 1991."

1990—Subsec. (f). Pub. L. 101–510 substituted "Committees on" for "Committees of" in introductory provisions.

Statutory Notes and Related Subsidiaries

Effective Date of 2023 Amendment; Implementation

Amendment by Pub. L. 118–31 effective 180 days after Dec. 22, 2023, with additional implementation requirements, see section 913(b)(1), (2) of Pub. L. 118–31, set out as notes under section 1766 of this title.

Effective Date of 2021 Amendment

Amendment by section 1701(u)(2)(B), (F)(i)(III) of Pub. L. 117–81 applicable as if included in the enactment of title XVIII of Pub. L. 116–283 as enacted, see section 1701(a)(2) of Pub. L. 117–81, set out in a note preceding section 3001 of this title and note below.

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 a note preceding section 3001 of this title.

Effective Date of 1994 Amendment

For effective date and applicability of amendment by Pub. L. 103–355, see section 10001 of Pub. L. 103–355, set out as a note under section 8752 of this title.

Tracking Awards Made Through Other Transaction Authority

Pub. L. 118–159, div. A, title VIII, §888, Dec. 23, 2024, 138 Stat. 2023, provided that:

"(a) In General.—Not later than one year after the date of the enactment of this Act [Dec. 23, 2024], the Under Secretary of Defense for Acquisition and Sustainment shall establish a process to track the number and value of awards to small businesses and nontraditional defense contractors performing on transactions using other transaction authority, including transactions carried out through consortia.

"(b) Data Collection.—The Under Secretary of Defense for Acquisition and Sustainment shall, to the extent practicable—

"(1) minimize the reporting requirements imposed on small businesses and nontraditional defense contractors by the process established under subsection (a); and

"(2) maximize the use of existing data collection processes of the Department of Defense or the expertise of a consortia-manager under such process.

"(c) Definitions.—In this section:

"(1) Nontraditional defense contractor.—The term 'nontraditional defense contractor' has the meaning given such term in section 3014 of title 10, United States Code.

"(2) Other transaction authority.—The term 'other transaction authority' means the authority provided under sections 4021 and 4022 of title 10, United States Code.

"(3) Small business.—The term 'small business' has the meaning given the term 'small business concern' under section 3(a) of the Small Business Act (15 U.S.C. 632(a))."

Reporting Requirement for Certain Defense Acquisition Activities

Pub. L. 117–81, div. A, title VIII, §825, Dec. 27, 2021, 135 Stat. 1831, provided that:

"(a) Procedures for Identifying Certain Acquisition Agreements and Activities.—The Secretary of Defense shall establish procedures to identify organizations performing on individual projects under the following types of awards:

"(1) Other transaction agreements pursuant to the authorities under section[s] 2371 and 2371b of title 10, United States Code [now 10 U.S.C. 4021 and 4022].

"(2) Individual task orders awarded under a task order contract (as defined in section 2304d of title 10, United States Code [now 10 U.S.C. 3401]), including individual task orders issued to a federally funded research and development center.

"(b) For initial agreements covered under subsection (a), the procedures required under subsection (a) shall include, but not be limited to—

"(1) the participants to the transaction (other than the Federal Government);

"(2) each business selected to perform work under the transaction by a participant to the transaction that is a consortium of private entities;

"(3) the date on which each participant entered into the transaction;

"(4) the amount of the transaction; and

"(5) other related matters the Secretary deems appropriate.

"(c) For follow-on contracts, agreements, or transactions covered under subsection (a), the procedures required under subsection (a) shall include, but not be limited to—

"(1) identification of the initial covered contract or transaction and each subsequent follow-on contract or transaction;

"(2) the awardee;

"(3) the amount;

"(4) the date awarded; and

"(5) other related matters the Secretary deems appropriate.

"(d) The Administrator of the General Services Administration shall update the Federal Procurement Data System (FPDS) within 180 days to collect the data required under this section.

"(e) Reporting.—Not later than one year after the date of the enactment of this Act [Dec. 27, 2021], and not less than annually thereafter, the Secretary of Defense shall submit to the congressional defense committees [Committees on Armed Services and Appropriations of the Senate and the House of Representatives] a report on the use of agreements and activities described in subsection (a) and associated funding.

"(f) Publication of Information.—Not later than one year after the date of enactment of this Act, the Secretary of Defense shall establish procedures to collect information on individual agreements and activities described in this section and associated funding in an online, public, searchable database, unless the Secretary deems such disclosure inappropriate for individual agreements based on national security concerns."

Listing of Other Transaction Authority Consortia

Pub. L. 116–283, div. A, title VIII, §833, Jan. 1, 2021, 134 Stat. 3753, provided that: "Not later than 90 days after the date of the enactment of this Act [Jan. 1, 2021], the Secretary of Defense shall maintain on the single Government-wide point of entry described under section 1708 of title 41, United States Code, a list of the consortia used by the Secretary to announce or otherwise make available opportunities to enter into a transaction under the authority of section 2371 of title 10, United States Code [now 10 U.S.C. 4021], or a transaction for a prototype project under section 2371b of such title [now 10 U.S.C. 4022]."

Data, Policy, and Reporting on the Use of Other Transactions

Pub. L. 115–232, div. A, title VIII, §873, Aug. 13, 2018, 132 Stat. 1905, as amended by Pub. L. 116–92, div. A, title VIII, §819, Dec. 20, 2019, 133 Stat. 1488, provided that:

"(a) Collection and Storage.—The Service Acquisition Executives of the military departments shall collect data on the use of other transactions by their respective departments, and the Under Secretary of Defense for Research and Engineering and the Under Secretary of Defense for Acquisition and Sustainment shall collect data on all other use by the Department of Defense of other transactions, including use by the Defense Agencies. The data shall be stored in a manner that allows the Assistant Secretary of Defense for Acquisition and other appropriate officials access at any time.

"(b) Use of Data.—The Assistant Secretary of Defense for Acquisition shall—

"(1) analyze and leverage the data collected under subsection (a) to update policy and guidance related to the use of other transactions; and

"(2) make the data collected under subsection (a) accessible to any official designated by the Secretary of Defense for inclusion by such official in relevant reports made by such official.

"(c) Report Required.—

"(1) In general.—Not later than December 31, 2019, and annually thereafter through December 31, 2023, the Secretary of Defense shall submit to the congressional defense committees [Committees on Armed Services and Appropriations of the Senate and the House of Representatives] a report on the use of other transaction authority to carry out prototype projects during the preceding fiscal year. Each report shall summarize the data collected under subsection (a) on the nature and extent of each such use of the authority, including a description—

"(A) of the participants to an agreement entered into pursuant to the authority of subsection (a) of section 2371b of title 10, United States Code [now 10 U.S.C. 4022], or a follow-on contract or transaction entered into pursuant to the authority of subsection (f) of such section;

"(B) of the quantity of prototype projects to be produced pursuant to such an agreement, follow-on contract, or transaction;

"(C) of the amount of payments made pursuant to each such agreement, follow-on contract, or transaction;

"(D) of the purpose, description, and status of prototype projects carried out pursuant to each such agreement, follow-on contract, or transaction; and

"(E) including case examples, of the successes and challenges with using the authority of such subsection (a) or (f).

"(2) Form of report.—A report required under this subsection shall be submitted in unclassified form without any designation relating to dissemination control, but may contain a classified annex."

Preference for Use of Other Transactions and Experimental Authority

Pub. L. 115–91, div. A, title VIII, §867, Dec. 12, 2017, 131 Stat. 1495, provided that: "In the execution of science and technology and prototyping programs, the Secretary of Defense shall establish a preference, to be applied in circumstances determined appropriate by the Secretary, for using transactions other than contracts, cooperative agreements, and grants entered into pursuant to sections 2371 and 2371b of title 10, United States Code [now 10 U.S.C. 4021 and 4022], and authority for procurement for experimental purposes pursuant to section 2373 of title 10, United States Code [now 10 U.S.C. 4023]."

§4022. Authority of the Department of Defense to carry out certain prototype projects

(a) Authority.—(1) Subject to paragraph (2), the Director of the Defense Advanced Research Projects Agency, the Director of the Defense Innovation Unit, the Secretary of a military department, or any other official designated by the Secretary of Defense may, under the authority of section 4021 of this title, carry out prototype projects that are directly relevant to enhancing the mission effectiveness of personnel of the Department of Defense or improving platforms, systems, components, or materials proposed to be acquired or developed by the Department of Defense, or to improvement of platforms, systems, components, or materials in use by the armed forces.

(2) The authority of this section—

(A) may be exercised for a transaction for a prototype project that is expected to cost the Department of Defense in excess of $100,000,000 but not in excess of $500,000,000 (including all options) only upon a written determination by the head of the contracting activity, or, for the Defense Advanced Research Projects Agency, the Defense Innovation Unit, or the Missile Defense Agency, the director of the agency that—

(i) the requirements of subsection (d) will be met; and

(ii) the use of the authority of this section is essential to promoting the success of the prototype project;

(B) may be exercised for a transaction for a prototype project that is expected to cost the Department of Defense in excess of $500,000,000 (including all options) only if—

(i) the senior procurement executive for the agency as designated for the purpose of section 1702(c) of title 41, or, for the Defense Advanced Research Projects Agency, the Defense Innovation Unit, or the Missile Defense Agency, the director of the agency, determines in writing that—

(I) the requirements of subsection (d) will be met; and

(II) the use of the authority of this section is essential to meet critical national security objectives; and

(ii) the congressional defense committees are notified in writing at least 30 days before such authority is exercised; and

(C) may be exercised for a transaction for a follow-on production contract or transaction that is awarded pursuant to subsection (f) and expected to cost the Department of Defense in excess of $100,000,000 (including all options) only if a covered official—

(i) determines in writing that—

(I) the requirements of subsection (d) were met for the prior transaction for the prototype project that provided for the award of the follow-on production contract or transaction, and the requirements of subsection (f) will be met; and

(II) the use of the authority of this section is essential to meet critical national security objectives; and

(ii) notifies the congressional defense committees in writing of the determinations required under clause (i) at the time such authority is exercised.

(3) The authority of the head of the contracting activity, director of the Defense Advanced Research Projects Agency, director of the Defense Innovation Unit, director of the Missile Defense Agency, or the senior procurement executive, as applicable, under paragraph (2) may not be delegated.

(b) Exercise of Authority.—

(1) Subsection (e)(2) of such section 4021 shall not apply to projects carried out under subsection (a).

(2) To the maximum extent practicable, competitive procedures shall be used when entering into agreements to carry out the prototype projects under subsection (a).

(c) Comptroller General Access to Information.—(1) Each agreement entered into by an official referred to in subsection (a) to carry out a project under that subsection that provides for payments in a total amount in excess of $5,000,000 shall include a clause that provides for the Comptroller General, in the discretion of the Comptroller General, to examine the records of any party to the agreement or any entity that participates in the performance of the agreement.

(2) The requirement in paragraph (1) shall not apply with respect to a party or entity, or a subordinate element of a party or entity, that has not entered into any other agreement that provides for audit access by a Government entity in the year prior to the date of the agreement.

(3)(A) The right provided to the Comptroller General in a clause of an agreement under paragraph (1) is limited as provided in subparagraph (B) in the case of a party to the agreement, an entity that participates in the performance of the agreement, or a subordinate element of that party or entity if the only agreements or other transactions that the party, entity, or subordinate element entered into with Government entities in the year prior to the date of that agreement are cooperative agreements or transactions that were entered into under this section or section 4021 of this title.

(B) The only records of a party, other entity, or subordinate element referred to in subparagraph (A) that the Comptroller General may examine in the exercise of the right referred to in that subparagraph are records of the same type as the records that the Government has had the right to examine under the audit access clauses of the previous agreements or transactions referred to in such subparagraph that were entered into by that particular party, entity, or subordinate element.

(4) The head of the contracting activity that is carrying out the agreement may waive the applicability of the requirement in paragraph (1) to the agreement if the head of the contracting activity determines that it would not be in the public interest to apply the requirement to the agreement. The waiver shall be effective with respect to the agreement only if the head of the contracting activity transmits a notification of the waiver to Congress and the Comptroller General before entering into the agreement. The notification shall include the rationale for the determination.

(5) The Comptroller General may not examine records pursuant to a clause included in an agreement under paragraph (1) more than three years after the final payment is made by the United States under the agreement.

(d) Appropriate Use of Authority.—(1) The Secretary of Defense shall ensure that no official of an agency enters into a transaction (other than a contract, grant, or cooperative agreement) for a prototype project under the authority of this section unless one of the following conditions is met:

(A) There is at least one nontraditional defense contractor or nonprofit research institution participating to a significant extent in the prototype project.

(B) All significant participants in the transaction other than the Federal Government are small businesses (including small businesses participating in a program described under section 9 of the Small Business Act (15 U.S.C. 638)) or nontraditional defense contractors.

(C) At least one third of the total cost of the prototype project is to be paid out of funds provided by sources other than the Federal Government.

(D) The senior procurement executive for the agency determines in writing that exceptional circumstances justify the use of a transaction that provides for innovative business arrangements or structures that would not be feasible or appropriate under a contract, or would provide an opportunity to expand the defense supply base in a manner that would not be practical or feasible under a contract.

(2)(A) Except as provided in subparagraph (B), the amounts counted for the purposes of this subsection as being provided, or to be provided, by a party to a transaction with respect to a prototype project that is entered into under this section other than the Federal Government do not include costs that were incurred before the date on which the transaction becomes effective.

(B) Costs that were incurred for a prototype project by a party after the beginning of negotiations resulting in a transaction (other than a contract, grant, or cooperative agreement) with respect to the project before the date on which the transaction becomes effective may be counted for purposes of this subsection as being provided, or to be provided, by the party to the transaction if and to the extent that the official responsible for entering into the transaction determines in writing that—

(i) the party incurred the costs in anticipation of entering into the transaction; and

(ii) it was appropriate for the party to incur the costs before the transaction became effective in order to ensure the successful implementation of the transaction.

(3) The requirements of this subsection do not apply to follow-on production contracts or transactions under subsection (f).

(e) Definitions.—In this section:

(1) The term "covered official" means—

(A) a service acquisition executive;

(B) the Director of the Defense Advanced Research Projects Agency;

(C) the Director of the Defense Innovation Unit;

(D) the Director of the Missile Defense Agency;

(E) the Undersecretary of Defense for Acquisition and Sustainment; or

(F) the Undersecretary of Defense for Research and Engineering.

(2) The term "nontraditional defense contractor" has the meaning given the term under section 3014 of this title.

(3) The term "service acquisition executive" has the meaning given that term in section 101(a) of this title.

(4) The term "small business" means a small business concern as defined under section 3 of the Small Business Act (15 U.S.C. 632).

(5) The term "prototype project" includes a project that addresses—

(A) a proof of concept, model, or process, including a business process;

(B) reverse engineering to address obsolescence;

(C) a pilot or novel application of commercial technologies for defense purposes;

(D) agile development activity;

(E) the creation, design, development, or demonstration of operational utility; or

(F) any combination of subparagraphs (A) through (E).

(6) The term "follow-on production contract or transaction" means a contract or transaction to produce, sustain, or otherwise implement the results of a successfully completed prototype project for continued or expanded use by the Department of Defense.

(f) Follow-on Production Contracts or Transactions.—(1) A transaction entered into under this section for a prototype project may provide for the award of a follow-on production contract or transaction to the participants in the transaction. A transaction includes all individual prototype subprojects awarded under the transaction to a consortium of United States industry and academic institutions. A follow-on production award may be provided for in a transaction entered into under this section for a prototype project, awarded with respect to such a transaction as one or more separate awards, or a combination thereof.

(2) A follow-on production contract or transaction provided for in a transaction under paragraph (1), one or more separate awards of follow-on production contracts or transactions with respect to a transaction described in such paragraph, or a combination thereof, may be awarded to the participants in the transaction without the use of competitive procedures, notwithstanding the requirements of chapter 221 of this title and even if explicit notification was not listed within the request for proposal for the transaction if—

(A) competitive procedures were used for the selection of parties for participation in the transaction; and

(B) the participants in the transaction successfully completed the prototype project provided for in the transaction.

(3) A follow-on production contract or transaction may be awarded, pursuant to this subsection, when the Department determines that an individual prototype or prototype subproject as part of a consortium is successfully completed by the participants.

(4) Award of a follow-on production contract or transaction pursuant to the terms under this subsection is not contingent upon the successful completion of all activities within a consortium as a condition for an award for follow-on production of a successfully completed prototype or prototype subproject within that consortium.

(5) Contracts and transactions entered into pursuant to this subsection may be awarded using the authority in subsection (a), under the authority of chapter 137 ¹ of this title, or under such procedures, terms, and conditions as the Secretary of Defense may establish by regulation.

(g) Authority To Provide Prototypes and Follow-on Production Items as Government-furnished Equipment.—An agreement entered into pursuant to the authority of subsection (a) or a follow-on contract or transaction entered into pursuant to the authority of subsection (f) may provide for prototypes or follow-on production items to be provided to another contractor as Government-furnished equipment.

(h) Applicability of Procurement Ethics Requirements.—An agreement entered into under the authority of this section shall be treated as a Federal agency procurement for the purposes of chapter 21 of title 41.

(i) Pilot Authority for Use of Other Transactions for Installation or Facility Prototyping.—

(1) In general.—The Secretary of Defense or the Secretary of a military department may establish a pilot program under which the Secretary may, under the authority of this section, carry out prototype projects that are directly relevant to enhancing the ability of the Department of Defense to prototype the design, development, or demonstration of new construction techniques or technologies to improve military installations or facilities (as such terms are defined in section 2801 of this title).

(2) Limits.—(A) In carrying out prototype projects under the pilot program established under paragraph (1)—

(i) not more than two prototype projects may begin to be carried out per fiscal year under such pilot program; and

(ii) the aggregate value of all transactions entered into under such pilot program may not exceed $300,000,000.

(B) The requirements of this paragraph shall not apply to projects carried out for the purpose of repairing a facility.

(3) Use of amounts.—The Secretary of Defense or the Secretary of a military department may carry out prototype projects under the pilot program established under paragraph (1) using amounts available to the Secretary of Defense or the Secretary of a military department (as applicable) for military construction, operation and maintenance, or research, development, test, and evaluation, notwithstanding—

(A) subchapters I and III of chapter 169 of this title; and

(B) chapters 221 and 223 of this title.

(4) Sunset.—

(A) In general.—Except as provided in subparagraph (B), the authority to carry out prototype projects under the pilot program established under paragraph (1) shall terminate on September 30, 2030.

(B) Ongoing project exception.—Subparagraph (A) shall not apply with respect to prototype projects being carried out under the pilot program established under paragraph (1) on the date described in subparagraph (A).

(Added Pub. L. 114–92, div. A, title VIII, §815(a)(1), Nov. 25, 2015, 129 Stat. 893, §2371b; amended Pub. L. 115–91, div. A, title II, §216, title VIII, §864, Dec. 12, 2017, 131 Stat. 1328, 1494; Pub. L. 115–232, div. A, title II, §211, Aug. 13, 2018, 132 Stat. 1674; Pub. L. 116–92, div. A, title XVII, §1731(a)(46), Dec. 20, 2019, 133 Stat. 1814; renumbered §4022 and amended Pub. L. 116–283, div. A, title XVIII, §§1841(b)(1), (2)(C), 1883(b)(2), Jan. 1, 2021, 134 Stat. 4243, 4294; Pub. L. 117–81, div. A, title VIII, §821(b), title XVII, §1701(u)(2)(B), (F)(i)(IV), Dec. 27, 2021, 135 Stat. 1825, 2151; Pub. L. 117–263, div. A, title VIII, §§842, 843, Dec. 23, 2022, 136 Stat. 2717, 2718; Pub. L. 118–31, div. A, title VIII, §§821, 822(a), title IX, §913(a), Dec. 22, 2023, 137 Stat. 326, 327, 367; Pub. L. 118–159, div. A, title VIII, §§816–818(a), Dec. 23, 2024, 138 Stat. 1981, 1982.)

Editorial Notes

References in Text

Chapter 137 of this title, referred to in subsec. (f)(5), was repealed by Pub. L. 116–283, div. A, title XVIII, §1881(a), Jan. 1, 2021, 134 Stat. 4293, effective Jan. 1, 2022, in conjunction with the transfer and reorganization of acquisition provisions in this title by Pub. L. 116–283, div. A, title XVIII, Jan. 1, 2022, 134 Stat. 4149. For definition of "chapter 137 legacy provisions", see section 3016 of this title.

Prior Provisions

A prior section 4022, act Aug. 10, 1956, ch. 1041, 70A Stat. 233, related to employment of contract surgeons in an emergency, prior to repeal by Pub. L. 98–94, title IX, §932(b)(1), (f) Sept. 24, 1983, 97 Stat. 650, effective Oct. 1, 1983, with continuation provision for existing contracts.

Amendments

2024—Subsec. (a)(2)(A). Pub. L. 118–159, §816(1)(A), substituted "head of the contracting activity" for "senior procurement executive for the agency as designated for the purpose of section 1702(c) of title 41" in introductory provisions.

Subsec. (a)(2)(B)(i). Pub. L. 118–159, §816(1)(B), substituted "senior procurement executive for the agency as designated for the purpose of section 1702(c) of title 41, or, for the Defense Advanced Research Projects Agency, the Defense Innovation Unit, or the Missile Defense Agency, the director of the agency," for "Under Secretary of Defense for Research and Engineering or the Under Secretary of Defense for Acquisition and Sustainment" in introductory provisions.

Subsec. (a)(3). Pub. L. 118–159, §816(2), amended par. (3) generally. Prior to amendment, par. (3) read as follows: "The authority of a senior procurement executive or director of the Defense Advanced Research Projects Agency, Defense Innovation Unit, or Missile Defense Agency under paragraph (2)(A), and the authority of the Under Secretaries of Defense under paragraph (2)(B), may not be delegated."

Subsec. (e)(6). Pub. L. 118–159, §817(1), added par. (6).

Subsec. (f)(1). Pub. L. 118–159, §817(2)(A), inserted at end "A follow-on production award may be provided for in a transaction entered into under this section for a prototype project, awarded with respect to such a transaction as one or more separate awards, or a combination thereof."

Subsec. (f)(2). Pub. L. 118–159, §817(2)(B), inserted ", one or more separate awards of follow-on production contracts or transactions with respect to a transaction described in such paragraph, or a combination thereof," after "paragraph (1)" in introductory provisions.

Subsec. (i)(2). Pub. L. 118–159, §818(a)(1), inserted subpar. (A) designation before "In carrying out", redesignated former subpars. (A) and (B) as cls. (i) and (ii), respectively, of subpar. (A), struck out "except for projects carried out for the purpose of repairing a facility," before "not more than two prototype projects" in cl. (i) of subpar. (A) as redesignated, and added subpar. (B).

Subsec. (i)(4)(A). Pub. L. 118–159, §818(a)(2), substituted "September 30, 2030" for "September 30, 2025".

2023—Subsec. (a)(1). Pub. L. 118–31, §913(a)(3)(A)(i), inserted "the Director of the Defense Innovation Unit," after "Defense Advanced Research Projects Agency,".

Subsec. (a)(2)(A). Pub. L. 118–31, §913(a)(3)(A)(ii), inserted ", the Defense Innovation Unit," after "Defense Advanced Research Projects Agency" in introductory provisions.

Subsec. (a)(2)(C)(i)(I). Pub. L. 118–31, §821(1), inserted "were met for the prior transaction for the prototype project that provided for the award of the follow-on production contract or transaction, and the requirements of subsection (f)" after "subsection (d)".

Subsec. (a)(3). Pub. L. 118–31, §913(a)(3)(A)(iii), inserted ", Defense Innovation Unit," after "Defense Advanced Research Projects Agency".

Subsec. (d)(3). Pub. L. 118–31, §821(2), added par. (3).

Subsec. (e)(1)(C) to (F). Pub. L. 118–31, §913(a)(3)(B), added subpar. (C) and redesignated former subpars. (C) to (E) as (D) to (F), respectively.

Subsec. (i)(2)(A). Pub. L. 118–31, §822(a)(1)(A), inserted "except for projects carried out for the purpose of repairing a facility," before "not more".

Subsec. (i)(2)(B). Pub. L. 118–31, §822(a)(1)(B), substituted "$300,000,000" for "$200,000,000".

Subsec. (i)(3), (4). Pub. L. 118–31, §822(a)(2), (3), added par. (3) and redesignated former par. (3) as (4).

2022—Subsec. (a)(1). Pub. L. 117–263, §843(1), substituted "personnel of the Department of Defense or improving" for "military personnel and the supporting".

Subsec. (a)(2). Pub. L. 117–263, §842(1)(A), struck out ", and any follow-on production contract or transaction that is awarded pursuant to subsection (f)," after "a prototype project" in two places.

Subsec. (a)(2)(C). Pub. L. 117–263, §842(1)(B)–(D), added subpar. (C).

Subsec. (e)(1) to (4). Pub. L. 117–263, §842(2), added pars. (1) and (3) and redesignated former pars. (1) and (2) as (2) and (4), respectively.

Subsec. (e)(5). Pub. L. 117–263, §843(2), added par. (5).

Subsec. (f)(2). Pub. L. 117–263, §842(3), substituted "of chapter 221 of this title and even if explicit notification was not listed within the request for proposal for the transaction" for "of section 2304 of this title,".

Subsec. (i). Pub. L. 117–263, §843(3), added subsec. (i).

2021—Pub. L. 116–283, §1841(b)(1), as amended by Pub. L. 117–81, §1701(u)(2)(B), renumbered section 2371b of this title as this section.

Subsec. (a)(1). Pub. L. 116–283, §1841(b)(2)(C), as amended by Pub. L. 117–81, §1701(u)(2)(F)(i)(IV), substituted "section 4021" for "section 2371".

Subsec. (b)(1). Pub. L. 117–81, §821(b), substituted "Subsection (e)(2)" for "Subsections (e)(1)(B) and (e)(2)".

Pub. L. 116–283, §1841(b)(2)(C), as amended by Pub. L. 117–81, §1701(u)(2)(F)(i)(IV), substituted "section 4021" for "section 2371".

Subsec. (c)(3)(A). Pub. L. 116–283, §1841(b)(2)(C), as amended by Pub. L. 117–81, §1701(u)(2)(F)(i)(IV), substituted "section 4021" for "section 2371".

Subsec. (e)(1). Pub. L. 116–283, §1883(b)(2), substituted "section 3014" for "section 2302(9)".

Subsec. (f)(2). Pub. L. 116–283, §1883(b)(2), which directed that each reference in the text of title 10 to a section that was redesignated by title XVIII of Pub. L. 116–283, as such section was in effect before the redesignation, be amended by striking such reference and inserting a reference to the appropriate redesignated section, was not executed with respect to "section 2304", which was redesignated as multiple sections.

2019—Subsec. (d)(1)(C). Pub. L. 116–92 substituted "sources other than" for "sources other than other than".

2018—Subsec. (a)(2)(A). Pub. L. 115–232, §211(1)(A), substituted "for a prototype project, and any follow-on production contract or transaction that is awarded pursuant to subsection (f)," for "(for a prototype project)" in introductory provisions.

Subsec. (a)(2)(B). Pub. L. 115–232, §211(1)(B)(i), substituted "for a prototype project, and any follow-on production contract or transaction that is awarded pursuant to subsection (f)," for "(for a prototype project)" in introductory provisions.

Subsec. (a)(2)(B)(i). Pub. L. 115–232, §211(1)(B)(ii), substituted "Under Secretary of Defense for Research and Engineering or the Under Secretary of Defense for Acquisition and Sustainment" for "Under Secretary of Defense for Acquisition, Technology, and Logistics" in introductory provisions.

Subsec. (a)(3). Pub. L. 115–232, §211(1)(C), which directed substitution of "Under Secretaries of Defense" for "Under Secretary of Defense for Acquisition, Technology, and Logistics" in par. (3) of subsec. (a)(2), was executed by making the substitution in par. (3) of subsec. (a), to reflect the probable intent of Congress.

Subsec. (b)(2). Pub. L. 115–232, §211(2), inserted "the prototype" after "carry out".

Subsec. (f)(3) to (5). Pub. L. 115–232, §211(3), added pars. (3) and (4) and redesignated former par. (3) as (5).

2017—Subsec. (a)(2)(A). Pub. L. 115–91, §864(a)(1), (2), in introductory provisions, substituted "for a transaction (for a prototype project)" for "for a prototype project", "$100,000,000" for "$50,000,000", and "$500,000,000" for "$250,000,000".

Subsec. (a)(2)(B). Pub. L. 115–91, §864(a)(1), (3), in introductory provisions, substituted "for a transaction (for a prototype project)" for "for a prototype project" and "$500,000,000" for "$250,000,000".

Subsec. (d)(1)(A). Pub. L. 115–91, §216, inserted "or nonprofit research institution" after "defense contractor".

Subsec. (d)(1)(B). Pub. L. 115–91, §864(b), inserted "(including small businesses participating in a program described under section 9 of the Small Business Act (15 U.S.C. 638))" after "small businesses".

Subsec. (d)(1)(C). Pub. L. 115–91, §864(c), substituted "provided by sources other than" for "provided by parties to the transaction".

Subsec. (f)(1). Pub. L. 115–91, §864(d), inserted at end "A transaction includes all individual prototype subprojects awarded under the transaction to a consortium of United States industry and academic institutions."

Statutory Notes and Related Subsidiaries

Effective Date of 2024 Amendment

Pub. L. 118–159, div. A, title VIII, §818(b), Dec. 23, 2024, 138 Stat. 1982, provided that: "This section [amending this section] and the amendments made by this section shall apply with respect to a transaction for a prototype project under section 4022(i) of title 10, United States Code, entered into on or after the date of the enactment of this section [Dec. 23, 2024]."

Effective Date of 2023 Amendment; Implementation

Pub. L. 118–31, div. A, title VIII, §822(b), Dec. 22, 2023, 137 Stat. 327, provided that: "The amendments made by this section [amending this section] shall apply with respect to transactions entered into on or after the date of the enactment of this Act [Dec. 22, 2023]."

Amendment by section 913(a)(3) of Pub. L. 118–31 effective 180 days after Dec. 22, 2023, with additional implementation requirements, see section 913(b)(1), (2) of Pub. L. 118–31, set out as notes under section 1766 of this title.

Effective Date of 2021 Amendment

Amendment by section 1701(u)(2)(B), (F)(i)(IV) of Pub. L. 117–81 applicable as if included in the enactment of title XVIII of Pub. L. 116–283 as enacted, see section 1701(a)(2) of Pub. L. 117–81, set out in a note preceding section 3001 of this title and note below.

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 a note preceding section 3001 of this title.

Limitation on Missile Defense Agency Production of Satellites and Ground Systems Associated With Operation of Such Satellites

Pub. L. 117–81, div. A, title XVI, §1662(a), Dec. 27, 2021, 135 Stat. 2103, which provided that the Director of the Missile Defense Agency could not authorize or obligate funding for a program of record for the production of satellites or ground systems associated with the operation of such satellites and could authorize, with the concurrence of the Space Acquisition Council, the production of one or more prototype satellites, consistent with the requirements of the Missile Defense Agency, was repealed by Pub. L. 118–159, div. A, title XVI, §1649(b)(2), Dec. 23, 2024, 138 Stat. 2199. See section 5537 of this title.

Relaxation of Department of Defense Other Transaction Authority Requirements Related to the National Emergency for the Coronavirus Disease 2019

Pub. L. 116–136, div. B, title III, §13006, Mar. 27, 2020, 134 Stat. 522, provided that:

"(a) Notwithstanding paragraph (3) of section 2371b(a) of title 10, United States Code [now 10 U.S.C. 4022(a)], the authority of a senior procurement executive or director of the Defense Advanced Research Projects Agency or Missile Defense Agency under paragraph (2)(A) of such section [probably should be "subsection"], and the authority of the Under Secretaries of Defense under paragraph (2)(B) of such section [probably should be "subsection"], for any transaction related to the national emergency for the Coronavirus Disease 2019 (COVID–19) may be delegated to such officials in the Department of Defense as the Secretary of Defense shall specify for purposes of this section.

"(b)(1) Notwithstanding clause (ii) of section 2371b(a)(2)(B) of title 10, United States Code [now 10 U.S.C. 4022(a)(2)(B)], no advance notice to Congress is required under that clause for transitions described in that section that are related to the national emergency for the Coronavirus Disease 2019 (COVID–19).

"(2) In the event a transaction covered by paragraph (1) is carried out, the Under Secretary of Defense for Research and Engineering or the Under Secretary of Defense for Acquisition and Sustainment, as applicable, shall submit to the congressional defense committees a notice on the carrying out of such transaction as soon as is practicable after the commencement of the carrying out of such transaction.

"(3) In this subsection, the term 'congressional defense committees' has the meaning given such term in section 101(a)(16) of title 10, United States Code."

Repeal of Obsolete Authority; Transition Provision

Pub. L. 114–92, div. A, title VIII, §815(c), Nov. 25, 2015, 129 Stat. 896, provided that: "Section 845 of the National Defense Authorization Act for Fiscal Year 1994 (Public Law 103–160; [former] 10 U.S.C. 2371 note) is hereby repealed. Transactions entered into under the authority of such section 845 shall remain in force and effect and shall be modified as appropriate to reflect the amendments made by this section [enacting this section, amending former section 2302 of this title, and amending provisions set out as a note under section 4001 of this title]."

Updated Guidance

Pub. L. 114–92, div. A, title VIII, §815(e), Nov. 25, 2015, 129 Stat. 896, provided that: "Not later than 180 days after the date of the enactment of this Act [Nov. 25, 2015], the Secretary of Defense shall issue updated guidance to implement the amendments made by this section [enacting this section, amending former section 2302 of this title, amending provisions set out as a note under section 4001 of this title, and repealing provisions formerly set out as a note under section 2371 of this title]."

¹ See References in Text note below.

§4023. Procurement for experimental purposes

(a) Authority.—The Secretary of Defense and the Secretaries of the military departments may each buy ordnance, signal, chemical activity, transportation, energy, medical, space-flight, telecommunications, and aeronautical supplies, including parts and accessories, and designs thereof, that the Secretary of Defense or the Secretary concerned considers necessary for experimental or test purposes in the development of the best supplies that are needed for the national defense.

(b) Procedures.—Purchases under this section may be made inside or outside the United States and by contract or otherwise. Chapter 137 ¹ of this title applies only when such purchases are made in quantities greater than necessary for experimentation, technical evaluation, assessment of operational utility, or safety or to provide a residual operational capability.

(Added Pub. L. 103–160, div. A, title VIII, §822(c)(1), Nov. 30, 1993, 107 Stat. 1706, §2373; amended Pub. L. 103–337, div. A, title X, §1070(g), Oct. 5, 1994, 108 Stat. 2859; Pub. L. 104–106, div. A, title VIII, §812, Feb. 10, 1996, 110 Stat. 395; Pub. L. 114–92, div. A, title VIII, §814, Nov. 25, 2015, 129 Stat. 893; Pub. L. 115–232, div. A, title VIII, §886, Aug. 13, 2018, 132 Stat. 1916; renumbered §4023, Pub. L. 116–283, div. A, title XVIII, §1841(b)(1), Jan. 1, 2021, 134 Stat. 4243; Pub. L. 117–81, div. A, title XVII, §1701(u)(2)(B), Dec. 27, 2021, 135 Stat. 2151.)

Editorial Notes

References in Text

Chapter 137 of this title, referred to in subsec. (b), was repealed by Pub. L. 116–283, div. A, title XVIII, §1881(a), Jan. 1, 2021, 134 Stat. 4293, effective Jan. 1, 2022, in conjunction with the transfer and reorganization of acquisition provisions in this title by Pub. L. 116–283, div. A, title XVIII, Jan. 1, 2022, 134 Stat. 4149. For definition of "chapter 137 legacy provisions", see section 3016 of this title.

Prior Provisions

A prior section 4023, act Aug. 10, 1956, ch. 1041, 70A Stat. 233, related to employment of civilians in service club and library services, prior to repeal by Pub. L. 87–651, title I, §116(1), Sept. 7, 1962, 76 Stat. 513.

Provisions similar to those in this section were contained in sections 4504 and 9504 of this title, prior to repeal by Pub. L. 103–160, §822(c)(2).

Amendments

2021—Pub. L. 116–283, §1841(b)(1), as amended by Pub. L. 117–81, §1701(u)(2)(B), renumbered section 2373 of this title as this section.

2018—Subsec. (a). Pub. L. 115–232 inserted "telecommunications," after "space-flight,".

2015—Subsec. (a). Pub. L. 114–92, §814(a), inserted "transportation, energy, medical, space-flight," before "and aeronautical supplies".

Subsec. (b). Pub. L. 114–92, §814(b), substituted "only when such purchases are made in quantities greater than necessary for experimentation, technical evaluation, assessment of operational utility, or safety or to provide a residual operational capability" for "only when such purchases are made in quantity".

1996—Subsec. (b). Pub. L. 104–106 inserted "only" after "applies" in second sentence.

1994—Subsec. (a). Pub. L. 103–337 substituted "chemical activity, and aeronautical supplies," for "and chemical activity supplies,".

Statutory Notes and Related Subsidiaries

Effective Date of 2021 Amendment

Amendment by Pub. L. 117–81 applicable as if included in the enactment of title XVIII of Pub. L. 116–283 as enacted, see section 1701(a)(2) of Pub. L. 117–81, set out in a note preceding section 3001 of this title and note below.

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 a note preceding section 3001 of this title.

¹ See References in Text note below.

§4024. Merit-based award of grants for research and development

(a) It is the policy of Congress that an agency named in section 3063 of this title should not be required by legislation to award a new grant for research, development, test, or evaluation to a non-Federal Government entity. It is further the policy of Congress that any program, project, or technology identified in legislation be awarded through merit-based selection procedures.

(b) A provision of law may not be construed as requiring a new grant to be awarded to a specified non-Federal Government entity unless that provision of law—

(1) specifically refers to this subsection;

(2) specifically identifies the particular non-Federal Government entity involved; and

(3) specifically states that the award to that entity is required by such provision of law in contravention of the policy set forth in subsection (a).

(c) For purposes of this section, a grant is a new grant unless the work provided for in the grant is a continuation of the work performed by the specified entity under a preceding grant.

(d) This section shall not apply with respect to any grant that calls upon the National Academy of Sciences to investigate, examine, or experiment upon any subject of science or art of significance to an agency named in section 3063 of this title and to report on such matters to the Congress or any agency of the Federal Government.

(Added Pub. L. 103–355, title VII, §7203(a)(2), Oct. 13, 1994, 108 Stat. 3380, §2374; renumbered §4024 and amended Pub. L. 116–283, div. A, title XVIII, §§1841(b)(1), (c), 1883(b)(2), Jan. 1, 2021, 134 Stat. 4243, 4294; Pub. L. 117–81, div. A, title XVII, §1701(u)(2)(B), (D), Dec. 27, 2021, 135 Stat. 2151; Pub. L. 118–31, div. A, title XVIII, §1801(a)(31), Dec. 22, 2023, 137 Stat. 685.)

Editorial Notes

Prior Provisions

A prior section 4024 was renumbered section 7374 of this title.

Amendments

2023—Subsecs. (a), (d). Pub. L. 118–31 substituted "section 3063 of this title" for "section 2303(a) of this title".

2021—Pub. L. 116–283, §1841(c), which directed the renumbering of section 2374 of this title as section 4008 instead of this section, was amended generally by Pub. L. 117–81, §1701(u)(2)(D), effective as if included therein, so that such renumbering was no longer directed.

Pub. L. 116–283, §1841(b)(1), as amended by Pub. L. 117–81, §1701(u)(2)(B), renumbered section 2374 of this title as this section.

Subsecs. (a), (d). Pub. L. 116–283, §1883(b)(2), which directed that each reference in the text of title 10 to a section that was redesignated by title XVIII of Pub. L. 116–283, as such section was in effect before the redesignation, be amended by striking such reference and inserting a reference to the appropriate redesignated section, was not executed with respect to "section 2303(a)", which was redesignated as multiple sections.

Statutory Notes and Related Subsidiaries

Effective Date of 2021 Amendment

Amendment by Pub. L. 117–81 applicable as if included in the enactment of title XVIII of Pub. L. 116–283 as enacted, see section 1701(a)(2) of Pub. L. 117–81, set out in a note preceding section 3001 of this title and note below.

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 a note preceding section 3001 of this title.

Effective Date

For effective date and applicability of section, see section 10001 of Pub. L. 103–355, set out as an Effective Date of 1994 Amendment note under section 8752 of this title.

§4025. Prizes for advanced technology achievements

(a) Authority.—The Secretary of Defense, acting through the Under Secretary of Defense for Research and Engineering, the Under Secretary of Defense for Acquisition and Sustainment, and the service acquisition executive for each military department, may carry out programs to award cash prizes and other types of prizes, including procurement contracts and other agreements, that the Secretary determines are appropriate to recognize outstanding achievements in basic, advanced, and applied research, technology development, and prototype development that—

(1) have the potential for application to the performance of the military missions of the Department of Defense; or

(2) demonstrate management practices that improve the schedule or performance, reduce the costs, or otherwise support the transition of technology into acquisition programs or operational use.

(b) Competition Requirements.—Each program under subsection (a) shall use a competitive process for the selection of recipients of cash prizes and for the selection of recipients of procurement contracts and other agreements. The process shall include the widely-advertised solicitation of submissions.

(c) Limitations.—(1) No prize competition may result in the award of a prize with a fair market value of more than $10,000,000 without the approval of the Under Secretary of Defense for Research and Engineering.

(2) No prize competition may result in the award of more than $1,000,000 in cash prizes without the approval of the Under Secretary of Defense for Research and Engineering.

(3) No prize competition may result in the award of a solely nonmonetary prize with a fair market value of more than $10,000 without the approval of the Under Secretary of Defense for Research and Engineering.

(d) Relationship to Other Authority.—A program under subsection (a) may be carried out in conjunction with or in addition to the exercise of any other authority of an official referred to in that subsection.

(e) Acceptance of Funds.—In addition to such sums as may be appropriated or otherwise made available to the Secretary to award prizes under this section, the Secretary may accept funds or nonmonetary items from other departments and agencies of the Federal Government, from State and local governments, and from the private sector, to award prizes under this section. The Secretary may not give any special consideration to any private sector entity in return for a donation.

(f) Use of Prize Authority.—Use of prize authority under this section shall be considered the use of competitive procedures for the purposes of chapter 221 of this title.

(g) Congressional Notice.—

(1) In general.—Not later than 15 days after a procurement contract or other agreement that exceeds a fair market value of $10,000,000 is awarded under the authority under a program under subsection (a), the Secretary of Defense shall submit to the congressional defense committees written notice of such award.

(2) Contents.—Each notice submitted under paragraph (1) shall include—

(A) the value of the relevant procurement contract or other agreement, as applicable, including all options;

(B) if applicable, a summary of the management practice that contributed to an improvement to schedule or performance or a reduction in cost relating to the transition of technology;

(C) an identification of any program executive officer (as defined in section 1737 of this title) responsible for implementation or oversight of research results, technology development, prototype development, or management practices (as applicable) for which an award was made under this section, and a brief summary of lessons learned by such program executive officer in carrying out such implementation or oversight;

(D) a brief description of the research result, technology development, or prototype for which such procurement contract or other agreement, as applicable, was awarded; and

(E) an explanation of the benefit to the performance of the military mission of the Department of Defense resulting from the award.

(Added Pub. L. 106–65, div. A, title II, §244(a), Oct. 5, 1999, 113 Stat. 552, §2374a; amended Pub. L. 107–314, div. A, title II, §248(a), Dec. 2, 2002, 116 Stat. 2502; Pub. L. 108–136, div. A, title X, §1031(a)(20), Nov. 24, 2003, 117 Stat. 1598; Pub. L. 109–163, div. A, title II, §257, Jan. 6, 2006, 119 Stat. 3184; Pub. L. 109–364, div. A, title II, §212, Oct. 17, 2006, 120 Stat. 2119; Pub. L. 111–84, div. A, title II, §253, Oct. 28, 2009, 123 Stat. 2243; Pub. L. 111–383, div. A, title IX, §901(j)(4), Jan. 7, 2011, 124 Stat. 4324; Pub. L. 113–66, div. A, title II, §263, Dec. 26, 2013, 127 Stat. 726; Pub. L. 113–291, div. A, title II, §211, Dec. 19, 2014, 128 Stat. 3324; Pub. L. 114–92, div. A, title X, §1079(a), Nov. 25, 2015, 129 Stat. 999; Pub. L. 114–328, div. A, title X, §1081(c)(6), Dec. 23, 2016, 130 Stat. 2420; Pub. L. 115–91, div. A, title II, §213, Dec. 12, 2017, 131 Stat. 1324; Pub. L. 115–232, div. A, title X, §1081(a)(21), Aug. 13, 2018, 132 Stat. 1984; Pub. L. 116–92, div. A, title II, §215, Dec. 20, 2019, 133 Stat. 1257; renumbered §4025 and amended Pub. L. 116–283, div. A, title XVIII, §§1841(b)(1), 1842(b), 1883(b)(2), Jan. 1, 2021, 134 Stat. 4244, 4294; Pub. L. 117–81, div. A, title VIII, §822, title XVII, §1701(q)(1), (u)(2)(B), (3)(B), Dec. 27, 2021, 135 Stat. 1825, 2148, 2151, 2152; Pub. L. 117–263, div. A, title VIII, §844, Dec. 23, 2022, 136 Stat. 2719.)

Editorial Notes

Prior Provisions

A prior section 4025 was renumbered section 7375 of this title.

Amendments

2022—Subsec. (a). Pub. L. 117–263, §844(1), substituted "development that—" for "development that", inserted par. (1) designation before "have the potential", substituted "Defense; or" for "Defense.", and added par. (2).

Subsec. (b). Pub. L. 117–263, §844(2), struck out "of research results, technology developments, and prototypes" before period at end.

Subsec. (d). Pub. L. 117–263, §844(3), struck out "to acquire, support, or stimulate basic, advanced and applied research, technology development, or prototype projects" before period at end.

Subsec. (f). Pub. L. 117–263, §844(4), substituted "chapter 221" for "section 2304".

Subsec. (g)(2)(B) to (E). Pub. L. 117–263, §844(5), added subpars. (B) and (C) and redesignated former subpars. (B) and (C) as (D) and (E), respectively.

2021—Pub. L. 116–283, §1842(b), which directed the renumbering of section 2374a of this title as section 4065 instead of this section, was amended by Pub. L. 117–81, §1701(q)(1), (u)(3)(B), effective as if included therein, so that such renumbering was no longer directed.

Pub. L. 116–283, §1841(b)(1), as amended by Pub. L. 117–81, §1701(u)(2)(B), renumbered section 2374a of this title as this section.

Subsec. (a). Pub. L. 117–81, §822(1), inserted ", including procurement contracts and other agreements," after "other types of prizes".

Subsec. (b). Pub. L. 117–81, §822(2), inserted "and for the selection of recipients of procurement contracts and other agreements" after "cash prizes".

Subsec. (c)(1). Pub. L. 117–81, §822(3), inserted "without the approval of the Under Secretary of Defense for Research and Engineering" before period at end.

Subsec. (f). Pub. L. 116–283, §1883(b)(2), which directed that each reference in the text of title 10 to a section that was redesignated by title XVIII of Pub. L. 116–283, as such section was in effect before the redesignation, be amended by striking such reference and inserting a reference to the appropriate redesignated section, was not executed with respect to "section 2304", which was redesignated as multiple sections.

Subsec. (g). Pub. L. 117–81, §822(4), added subsec. (g).

2019—Subsec. (a). Pub. L. 116–92 substituted "Under Secretary of Defense for Research and Engineering, the Under Secretary of Defense for Acquisition and Sustainment," for "Assistant Secretary of Defense for Research and Engineering".

2018—Subsec. (e). Pub. L. 115–232 substituted "Federal Government," for "Federal Government,,".

2017—Subsec. (a). Pub. L. 115–91, §213(1), substituted "and other types of prizes that the Secretary determines are appropriate to recognize" for "in recognition of".

Subsec. (c)(1). Pub. L. 115–91, §213(2)(A), substituted "prize with a fair market value of" for "cash prize of".

Subsec. (c)(2). Pub. L. 115–91, §213(2)(B), substituted "Under Secretary of Defense for Research and Engineering" for "Under Secretary of Defense for Acquisition, Technology, and Logistics".

Subsec. (c)(3). Pub. L. 115–91, §213(2)(C), added par. (3).

Subsec. (e). Pub. L. 115–91, §213(3), inserted "or nonmonetary items" after "accept funds", substituted ", from State and local governments, and from the private sector" for "and from State and local governments", and inserted at end "The Secretary may not give any special consideration to any private sector entity in return for a donation."

Subsec. (f). Pub. L. 115–91, §213(4), amended subsec. (f) generally. Prior to amendment, text read as follows: "The authority to award prizes under subsection (a) shall terminate at the end of September 30, 2018."

2016—Subsecs. (f), (g). Pub. L. 114–328, §1081(c)(6), made technical amendment to directory language of Pub. L. 114–92, §1079(a). See 2015 Amendment note below.

2015—Subsecs. (f), (g). Pub. L. 114–92, §1079(a), as amended by Pub. L. 114–328, §1081(c)(6), redesignated subsec. (g) as (f) and struck out former subsec. (f) which related to biennial reports.

2014—Subsec. (c)(1). Pub. L. 113–291, §211(a), substituted "No prize competition may result in the award of a cash prize of more than $10,000,000." for "The total amount made available for award of cash prizes in a fiscal year may not exceed $10,000,000."

Subsec. (e). Pub. L. 113–291, §211(b)(2), added subsec. (e). Former subsec. (e) redesignated (f).

Subsec. (f). Pub. L. 113–291, §211(c)(3), substituted "Biennial" for "Annual" in heading.

Pub. L. 113–291, §211(b)(1), redesignated subsec. (e) as (f). Former subsec. (f) redesignated (g).

Subsec. (f)(1). Pub. L. 113–291, §211(c)(1), substituted "every other year" for "each year" and "two fiscal years" for "fiscal year".

Subsec. (f)(2). Pub. L. 113–291, §211(c)(2), substituted "a period of two fiscal years" for "a fiscal year" in introductory provisions.

Subsec. (g). Pub. L. 113–291, §211(b)(1), redesignated subsec. (f) as (g).

2013—Subsec. (f). Pub. L. 113–66 substituted "September 30, 2018" for "September 30, 2013".

2011—Subsec. (a). Pub. L. 111–383 substituted "Assistant Secretary of Defense for Research and Engineering" for "Director of Defense Research and Engineering".

2009—Subsec. (f). Pub. L. 111–84 substituted "2013" for "2010".

2006—Subsec. (a). Pub. L. 109–364, §212(a)(1), substituted "Director of Defense Research and Engineering and the service acquisition executive for each military department" for "Director of the Defense Advanced Research Projects Agency" and "programs" for "a program".

Subsec. (b). Pub. L. 109–364, §212(a)(2)(A), substituted "Each program" for "The program".

Subsec. (d). Pub. L. 109–364, §212(a)(2)(B), substituted "A program" for "The program" and "an official referred to in that subsection" for "the Director".

Subsec. (e). Pub. L. 109–364, §212(c), reenacted heading without change and amended text generally. Prior to amendment, subsec. (e) required an annual report, which included the results of consultations between the Director and officials of the military departments, a description of goals, cash prizes, methods used for submissions, a description of resources, and a description of transition plans.

Pub. L. 109–163 reenacted heading without change and amended text generally. Prior to amendment, text read as follows: "Promptly after the end of each fiscal year during which one or more prizes are awarded under the program under subsection (a), the Secretary shall submit to the Committees on Armed Services of the Senate and the House of Representatives a report on the administration of the program for that fiscal year. The report shall include the following:

"(1) The military applications of the research, technology, or prototypes for which prizes were awarded.

"(2) The total amount of the prizes awarded.

"(3) The methods used for solicitation and evaluation of submissions, together with an assessment of the effectiveness of those methods."

Subsec. (f). Pub. L. 109–364, §212(b), substituted "2010" for "2007".

2003—Subsec. (e). Pub. L. 108–136 inserted "during which one or more prizes are awarded under the program under subsection (a)" after "each fiscal year" in introductory provisions.

2002—Subsec. (f). Pub. L. 107–314 substituted "September 30, 2007" for "September 30, 2003".

Statutory Notes and Related Subsidiaries

Effective Date of 2021 Amendment

Amendment by section 1701(q)(1), (u)(2)(B), (3)(B) of Pub. L. 117–81 applicable as if included in the enactment of title XVIII of Pub. L. 116–283 as enacted, see section 1701(a)(2) of Pub. L. 117–81, set out in a note preceding section 3001 of this title and note below.

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 a note preceding section 3001 of this title.

Effective Date of 2016 Amendment

Pub. L. 114–328, div. A, title X, §1081(c), Dec. 23, 2016, 130 Stat. 2419, provided that the amendment made by section 1081(c)(6) is effective as of Nov. 25, 2015, and as if included in Pub. L. 114–92 as enacted.

Effective Date of 2011 Amendment

Amendment by Pub. L. 111–383 effective Jan. 1, 2011, see section 901(p) of Pub. L. 111–383, set out as a note under section 131 of this title.

Prize Competition for Technology That Detects and Watermarks Use of Generative Artificial Intelligence

Pub. L. 118–31, div. A, title XV, §1543, Dec. 22, 2023, 137 Stat. 573, provided that:

"(a) Establishment.—Not later than 270 days after the date of the enactment of this Act [Dec. 22, 2023], under the authority of section 4025 of title 10, United States Code, the Secretary of Defense shall establish a prize competition designed to evaluate technology (including applications, tools, and models) for generative artificial intelligence detection and generative artificial intelligence watermarking, for the purposes of—

"(1) facilitating the research, development, testing, evaluation, and competition of such technologies to support the Secretaries of the military departments and the commanders of combatant commands in warfighting requirements; and

"(2) transitioning such technologies, including technologies developed pursuant to pilot programs, prototype projects, or other research and development programs, from the prototyping phase to production.

"(b) Participation.—The participants in the prize competition under subsection (a) may include federally funded research and development centers, entities within the private sector, entities within the defense industrial base, institutions of higher education, Federal departments and agencies, and such other categories of participants as the Secretary of Defense considers appropriate.

"(c) Designation.—The prize competition under subsection (a) shall be known as the 'Generative AI Detection and Watermark Competition'.

"(d) Administration.—The Under Secretary of Defense for Research and Engineering shall administer the prize competition under subsection (a).

"(e) Framework.—Not later than 120 days after the date of the enactment of this Act, the Secretary of Defense shall provide to the congressional defense committees [Committees on Armed Services and Appropriations of the Senate and the House of Representatives] a briefing on the framework to be used in carrying out the prize competition under subsection (a).

"(f) Annual Briefings.—Not later than October 1 of each year until the date of termination under subsection (g), the Secretary of Defense shall provide to the congressional defense committees a briefing on the results of the prize competition under subsection (a).

"(g) Termination.—The authority to carry out the prize competition under subsection (a) shall terminate on December 31, 2025.

"(h) Definitions.—In this section:

"(1) The term 'generative artificial intelligence detection' means, with respect to digital content, the positive identification of the use of generative artificial intelligence in the generation of such content.

"(2) The term 'generative artificial intelligence watermarking' means, with respect to digital content, embedding within such content data conveying attribution of the generation of such content to generative artificial intelligence."

Prize Competition To Identify Root Cause of Physiological Episodes on Navy, Marine Corps, and Air Force Training and Operational Aircraft

Pub. L. 115–91, div. A, title X, §1089, Dec. 12, 2017, 131 Stat. 1605, as amended by Pub. L. 116–283, div. A, title XVIII, §1842(c)(1), Jan. 1, 2021, 134 Stat. 4244; Pub. L. 117–81, div. A, title XVII, §1701(u)(3)(C), Dec. 27, 2021, 135 Stat. 2152, provided that:

"(a) In General.—Under the authority of section 4025 of title 10, United States Code, and section 24 of the Stevenson-Wydler Technology Innovation Act of 1980 (15 U.S.C. 3719), the Secretary of Defense, in consultation with the Secretary of the Navy, the Secretary of the Air Force, the Commandant of the Marine Corps, and the heads of any other appropriate Federal agencies that have experience in prize competitions, and when appropriate, in coordination with private organizations, may establish a prize competition designed to accelerate identification of the root cause or causes of, or find solutions to, physiological episodes experienced in Navy, Marine Corps, and Air Force training and operational aircraft.

"(b) Evaluation of Personnel.—The Secretary of Defense, or the Secretary's designee, shall select the person or persons to conduct the competition authorized in subsection (a) and evaluate any submissions.

"(c) Limitation.—The Secretary of Defense may not exercise the authority under subsection (a) before the date that is 15 days after the date on which the Secretary of Defense submits to [the] congressional defense committees [Committees on Armed Services and Appropriations of the Senate and the House of Representatives] certification in writing that the use of the authority will not compromise classified information, proprietary information, or intellectual property."

§4026. Cooperative research and development agreements under Stevenson-Wydler Technology Innovation Act of 1980

The Secretary of Defense, in carrying out research projects through the Defense Advanced Research Projects Agency, and the Secretary of each military department, in carrying out research projects, may permit the director of any federally funded research and development center to enter into cooperative research and development agreements with any person, any agency or instrumentality of the United States, any unit of State or local government, and any other entity under the authority granted by section 12 of the Stevenson-Wydler Technology Innovation Act of 1980 (15 U.S.C. 3710a). Technology may be transferred to a non-Federal party to such an agreement consistent with the provisions of sections 11 and 12 of such Act (15 U.S.C. 3710, 3710a).

(Added and amended Pub. L. 104–201, div. A, title II, §267(c)(1)(A), (B), Sept. 23, 1996, 110 Stat. 2468, §2371a; Pub. L. 105–85, div. A, title X, §1073(a)(50), Nov. 18, 1997, 111 Stat. 1903; renumbered §4026 and amended Pub. L. 116–283, div. A, title XVIII, §§1841(b)(1), 1844(b)(1), Jan. 1, 2021, 134 Stat. 4243, 4245; Pub. L. 117–81, div. A, title XVII, §1701(u)(2)(B), (5)(B), Dec. 27, 2021, 135 Stat. 2151, 2154.)

Editorial Notes

Codification

The text of section 2371(i) of this title, which was transferred to this section, redesignated as text of section, and amended by Pub. L. 104–201, §267(c)(1)(A), (B), was based on Pub. L. 103–355, title I, §1301(b), Oct. 13, 1994, 108 Stat. 3286.

Amendments

2021—Pub. L. 116–283, §1844(b)(1), which directed the renumbering of section 2371a of this title as section 4143 instead of this section, was repealed, and a new section 1844(b) was enacted, by Pub. L. 117–81, §1701(u)(5)(D), effective as if included therein, so that such renumbering was no longer directed.

Pub. L. 116–283, §1841(b)(1), as amended by Pub. L. 117–81, §1701(u)(2)(B), renumbered section 2371a of this title as this section.

1997—Pub. L. 105–85 inserted "Defense" before "Advanced Research Projects Agency".

1996—Pub. L. 104–201 transferred section 2371(i) of this title to this section, added section catchline, and struck out subsec. (i) designation and heading which read as follows: "Cooperative Research and Development Agreements Under Stevenson-Wydler Technology Innovation Act of 1980". See Codification note above.

Statutory Notes and Related Subsidiaries

Effective Date of 2021 Amendment

Amendment by Pub. L. 117–81 applicable as if included in the enactment of title XVIII of Pub. L. 116–283 as enacted, see section 1701(a)(2) of Pub. L. 117–81, set out in a note preceding section 3001 of this title and note below.

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 a note preceding section 3001 of this title.

§4027. Disclosure requirements for recipients of research and development funds

(a) In General.—Except as provided in subsections (b) and (c), an individual or entity (including a State or local government) that uses funds received from the Department of Defense to carry out research or development activities shall include, in any public document pertaining to such activities, a clear statement indicating the dollar amount of the funds received from the Department for such activities.

(b) Exception.—The disclosure requirement under subsection (a) shall not apply to a public document consisting of fewer than 280 characters.

(c) Waiver.—The Secretary of Defense may waive the disclosure requirement under subsection (a) on a case-by-case basis.

(d) Public Document Defined.—In this section, the term "public document" means any document or other written statement made available for public reference or use, regardless of whether such document or statement is made available in hard copy or electronic format.

(Added Pub. L. 116–283, div. A, title II, §212(a)(1), Jan. 1, 2021, 134 Stat. 3456, §2374b; renumbered §4027, Pub. L. 117–81, div. A, title XVII, §1701(e)(4)(A), Dec. 27, 2021, 135 Stat. 2139.)

Editorial Notes

Prior Provisions

A prior section 4027 was renumbered section 7377 of this title.

Amendments

2021—Pub. L. 117–81 renumbered section 2374b of this title as this section.

Statutory Notes and Related Subsidiaries

Effective Date of 2021 Amendment

Pub. L. 117–263, div. A, title VIII, §881(a), Dec. 23, 2022, 136 Stat. 2744, provided that: "The amendments made by section 1701(e) and paragraphs (1) and (2) of section 802(b) of the National Defense Authorization Act for Fiscal Year 2022 (Public Law 117–81) [renumbering this section and sections 4094, 4873, 4875, and 8755 of this title] shall be deemed to have taken effect immediately before the amendments made by section 1881 of the William M. (Mac) Thornberry National Defense Authorization Act for Fiscal Year 2021 (Public Law 116–283; 134 Stat. 4293) [see Tables for classification]."

[Subsec. (a) of section 1881 of Pub. L. 116–283, referred to in section 881(a) of Pub. L. 117–263, set out above, provided in part that chapter 139 of this title, in which chapter section 2374b of this title had been located, was repealed.]

Effective Date

Pub. L. 116–283, div. A, title II, §212(b), Jan. 1, 2021, 134 Stat. 3456, provided that: "The amendments made by subsection (a) [enacting this section] shall take effect on October 1, 2021, and shall apply with respect to funds for research and development that are awarded by the Department of Defense on or after that date."

Treatment of Section 4027 Requirements

Pub. L. 117–263, div. A, title VIII, §881(b), Dec. 23, 2022, 136 Stat. 2744, provided that: "An individual or entity to which the requirements under section 4027 of title 10, United States Code, were applicable during the period beginning on January 1, 2022, and ending on the date of the enactment of this Act [Dec. 23, 2022] pursuant to subsection (a) [set out as an Effective Date of 2021 Amendment note above] shall be deemed to have complied with such requirements during such period."

CHAPTER 303—RESEARCH AND ENGINEERING ACTIVITIES

Subchapter I—General

        

Subchapter II—Personnel

        

Subchapter III—Research and Development Centers and Facilities

        

        

Editorial Notes

Prior Provisions

A prior chapter 303 "WEAPON SYSTEMS DEVELOPMENT AND RELATED MATTERS", consisting of reserved section 4071, was repealed by Pub. L. 116–283, div. A, title XVIII, §1841(a)(1)(A), Jan. 1, 2021, 134 Stat. 4242.

A prior chapter 303 was renumbered chapter 703 of this title.

Amendments

2024—Pub. L. 118–159, div. A, title II, §§216(1), 217(a), title IX, §922(a), title XVII, §1701(a)(43), Dec. 23, 2024, 138 Stat. 1825, 2037, 2206, substituted "science, engineering, and certain other disciplines" for "science and engineering" in item 4092 and "Defense Innovation Unit" for "Defense innovation unit" in item 4127 and added two items 4128. Amendments were made pursuant to operation of section 102 of this title.

2023—Pub. L. 118–31, div. A, title IX, §913(a)(1), title XVIII, §1801(a)(32), Dec. 22, 2023, 137 Stat. 365, 685, struck out identical second item 4094 "Enhanced pay authority for certain research and technology positions in science and technology reinvention laboratories" and added item 4127. Amendments were made pursuant to section 102 of this title.

2022—Pub. L. 117–263, div. A, title XI, §1106(b), Dec. 23, 2022, 136 Stat. 2818, added identical second item 4094 "Enhanced pay authority for certain research and technology positions in science and technology reinvention laboratories" after item 4093.

2021—Pub. L. 117–81, div. A, title II, §215(b), title XVII, §1701(e)(3)(B), Dec. 27, 2021, 135 Stat. 1593, 2138, added items 4094 "Enhanced pay authority for certain research and technology positions in science and technology reinvention laboratories" and 4121 and struck out former item 4121 "[Reserved]", effective after the amendment made by Pub. L. 116–283, as amended by Pub. L. 117–81, see note below.

Pub. L. 117–81, div. A, title XVII, §1701(u)(3)(A), Dec. 27, 2021, 135 Stat. 2152, amended Pub. L. 116–283, div. A, title XVIII, §1842(a), Jan. 1, 2021, 134 Stat. 4244, which added this analysis, by substituting chapter heading, items for subchapters I to III, and items 4061 to 4067, 4091 to 4093, and 4121 to 4126 for former chapter heading "INNOVATION" and items 4061 to 4066.

¹ So in original. Two sections 4128 have been enacted.

SUBCHAPTER I—GENERAL

Editorial Notes

Amendments

2021—Pub. L. 117–81, div. A, title XVII, §1701(u)(3)(A), Dec. 27, 2021, 135 Stat. 2152, amended Pub. L. 116–283, div. A, title XVIII, §1842(a), Jan. 1, 2021, 134 Stat. 4244, which added this chapter, by adding subchapter heading. Heading was editorially conformed to the style used in this title.

Statutory Notes and Related Subsidiaries

Establishment of Innovators Information Repository in the Department of Defense

Pub. L. 115–232, div. A, title II, §220, Aug. 13, 2018, 132 Stat. 1681, as amended by Pub. L. 118–159, div. A, title II, §224, Dec. 23, 2024, 138 Stat. 1830, provided that:

"(a) In General.—Not later than one year after the date of the enactment of this Act [Aug. 13, 2018], the Secretary of Defense shall, acting through the Chief Digital and Artificial Intelligence Office, the Defense Innovation Unit, and the Defense Technical Information Center, establish an innovators information repository within the Department of Defense in accordance with this section.

"(b) Maintenance of Information Repository.—The Under Secretary of Defense for Research and Engineering shall maintain the information repository and ensure that it is periodically updated in accordance with subsection (e).

"(c) Elements of Information Repository.—The information repository established under subsection (a) shall—

"(1) be coordinated across the Department of Defense to focus on small business concerns (as defined in section 3 of the Small Business Act (15 U.S.C. 632)[)], including—

"(A) participants in the Small Business Innovation Research Program or the Small Business Technology Transfer Program established under section 9 of the Small Business Act (15 U.S.C. 638);

"(B) participants in the pilot program established under section 834 of the National Defense Authorization Act for Fiscal Year 2022 [Pub. L. 117–81, 10 U.S.C. 4061 note] or the Rapid Defense Experimentation Reserve of the Department of Defense; and

"(C) small business concerns that are nontraditional defense contractors (as defined in section 3014 of title 10, United States Code) that work with research, innovation, and advanced project entities;

"(2) include appropriate information about each participant, including a description of—

"(A) the need or requirement applicable to the participant;

"(B) the participant's technology with appropriate technical detail and appropriate protections of proprietary information or data;

"(C) any prior business of the participant with the Department;

"(D) whether the participant's technology was incorporated into a program of record;

"(E) the date of the initial award to the participant from the Department of Defense; and

"(F) the dates of any additional awards made to the participant by the Department of Defense, including the dates of any contracts or other agreements entered into between the participant the Department of Defense; and

"(3) incorporate the appropriate classification due to compilation of information.

"(d) Use of Information Repository.—After the information repository is established under subsection (a), the Secretary shall encourage use of the information repository by Department organizations involved in technology development and protection, including program offices, before initiating a Request for Information or a Request for Proposal to determine whether an organic technology exists or is being developed currently by a an [sic] entity supported by the Department (which may include a company, academic consortium, or other entity).

"(e) Updates Required.—Not less frequently than once each fiscal quarter and subject to the availability of appropriations, the head of the Defense Technical Information Center, in coordination with the Under Secretary of Defense for Research and Engineering, shall update the innovators information repository established under this section."

National Security Innovation Activities

Pub. L. 115–232, div. A, title II, §230, Aug. 13, 2018, 132 Stat. 1689, as amended by Pub. L. 116–283, div. A, title II, §213(a), Jan. 1, 2021, 134 Stat. 3456, provided that:

"(a) Establishment.—The Under Secretary of Defense for Research and Engineering shall establish activities to develop interaction between the Department of Defense and the commercial technology industry and academia with regard to emerging hardware products and technologies with national security applications.

"(b) Elements.—The activities required by subsection (a) shall include the following:

"(1) Informing and encouraging private investment in specific hardware technologies of interest to future defense technology needs with unique national security applications.

"(2) Funding research and technology development in hardware-intensive capabilities that private industry has not sufficiently supported to meet rapidly emerging defense and national security needs.

"(3) Contributing to the development of policies, policy implementation, and actions to deter strategic acquisition of industrial and technical capabilities in the private sector by foreign entities that could potentially exclude companies from participating in the Department of Defense technology and industrial base.

"(4) Identifying promising emerging technology in industry and academia for the Department of Defense for potential support or research and development cooperation.

"(c) Transfer of Personnel and Resources.—

"(1) In general.—Subject to paragraph (2), the Under Secretary may transfer such personnel, resources, and authorities that are under the control of the Under Secretary as the Under Secretary considers appropriate to carry out the activities established under subsection (a) from other elements of the Department under the control of the Under Secretary or upon approval of the Secretary of Defense.

"(2) Certification.—The Under Secretary may only make a transfer of personnel, resources, or authorities under paragraph (1) upon certification by the Under Secretary that the activities established under paragraph (a) can attract sufficient private sector investment, has personnel with sufficient technical and management expertise, and has identified relevant technologies and systems for potential investment in order to carry out the activities established under subsection (a), independent of further government funding beyond this authorization.

"(d) Establishment of Nonprofit Entity.—The Under Secretary may establish or fund a nonprofit entity to carry out the program activities under subsection (a).

"(e) Advisory Assistance.—

"(1) In general.—The Under Secretary shall establish a mechanism to seek advice from existing Federal advisory committees on matters relating to—

"(A) the implementation and prioritization of activities established under subsection (a); and

"(B) determining how such activities may be used to support the overall technology strategy of the Department of Defense.

"(2) Existing federal advisory committees defined.—In this subsection, the term 'existing Federal advisory committee' means an advisory committee that—

"(A) is established pursuant to a provision of Federal law other than this section; and

"(B) has responsibilities relevant to the activities established under subsection (a), as determined by the Under Secretary.

"(f) Plan.—

"(1) In general.—Not later than one year after the date of the enactment of this Act [Aug. 13, 2018], the Under Secretary shall submit to the congressional defense committees [Committees on Armed Services and Appropriations of the Senate and the House of Representatives] a detailed plan to carry out this section.

"(2) Elements.—The plan required by paragraph (1) shall include the following:

"(A) A description of the additional authorities needed to carry out the activities set forth in subsection (b).

"(B) Plans for transfers under subsection (c), including plans for private fund-matching and investment mechanisms, oversight, treatment of rights relating to technical data developed, and relevant dates and goals of such transfers.

"(C) Plans for attracting the participation of the commercial technology industry and academia and how those plans fit into the current Department of Defense research and engineering enterprise.

"(g) Authorities.—In carrying out this section, the Under Secretary may use the following authorities:

"(1) Section 1711 of the National Defense Authorization Act for Fiscal Year 2018 (Public Law 115–91) [10 U.S.C. 4816 note], relating to a pilot program on strengthening the defense industrial and innovation base.

"(2) Section 1599g of title 10 of the United States Code, relating to public-private talent exchanges.

"(3) Section 2368 of such title [now 10 U.S.C. 4124], relating to Centers for Science, Technology, and Engineering Partnerships.

"(4) Section 2374a of such title [now 10 U.S.C. 4025], relating to prizes for advanced technology achievements.

"(5) Section 2474 of such title, relating to Centers of Industrial and Technical Excellence.

"(6) Section 2521 of such title [now 10 U.S.C. 4841, 4842], relating to the Manufacturing Technology Program.

"(7) Subchapter VI of chapter 33 of title 5, United States Code, relating to assignments to and from States.

"(8) Chapter 47 of such title, relating to personnel research programs and demonstration projects.

"(9) Section 12 of the Stevenson-Wydler Technology Innovation Act of 1980 (15 U.S.C. 3710a) and section 6305 of title 31, United States Code, relating to cooperative research and development agreements.

"(10) Such other authorities as the Under Secretary considers appropriate.

"(h) Notice Required.—Not later than 15 days before the date on which the Under Secretary first exercises the authority granted under subsection (d) and not later than 15 days before the date on which the Under Secretary first obligates or expends any amount authorized under subsection (h), the Under Secretary shall notify the congressional defense committees of such exercise, obligation, or expenditure, as the case may be."

Joint Artificial Intelligence Research, Development, and Transition Activities

Pub. L. 115–232, div. A, title II, §238, Aug. 13, 2018, 132 Stat. 1695, as amended by Pub. L. 116–92, div. A, title II, §221, Dec. 20, 2019, 133 Stat. 1261; Pub. L. 116–283, div. A, title II, §232, Jan. 1, 2021, 134 Stat. 3480; Pub. L. 117–263, div. A, title II, §212(l), Dec. 23, 2022, 136 Stat. 2470; Pub. L. 118–31, div. A, title XV, §1521(b), Dec. 22, 2023, 137 Stat. 551; Pub. L. 118–159, div. A, title II, §225, Dec. 23, 2024, 138 Stat. 1831, provided that:

"(a) Establishment.—

"(1) In general.—The Secretary of Defense shall establish a set of activities within the Department of Defense to coordinate the efforts of the Department to acquire, develop, mature, and transition artificial intelligence technologies into operational use.

"(2) Emphasis.—The set of activities established under paragraph (1) shall include—

"(A) acquisition and development of mature artificial intelligence technologies in support of defense missions;

"(B) applying artificial intelligence and machine learning solutions to operational problems by directly delivering artificial intelligence capabilities to the Armed Forces and other organizations and elements of the Department of Defense;

"(C) accelerating the development, testing, and fielding of new artificial intelligence and artificial intelligence-enabling capabilities; and

"(D) coordinating and deconflicting activities involving artificial intelligence and artificial intelligence-enabled capabilities within the Department.

"(b) Designation.—Not later than one year after the date of the enactment of this Act [Aug. 13, 2018], the Secretary shall designate a senior official of the Department with principal responsibility for the coordination of activities relating to the development and demonstration of artificial intelligence and machine learning for the Department.

"(c) Organization and Roles.—

"(1) In general.—In addition to designating an official under subsection (b), the Secretary of Defense shall assign to appropriate officials within the Department of Defense roles and responsibilities relating to the research, development, prototyping, testing, procurement of, requirements for, and operational use of artificial intelligence technologies.

"(2) Appropriate officials.—The officials assigned roles and responsibilities under paragraph (1) shall include—

"(A) the Under Secretary of Defense for Research and Engineering;

"(B) the Under Secretary of Defense for Acquisition and Sustainment;

"(C) one or more officials in each military department;

"(D) officials of appropriate Defense Agencies; and

"(E) such other officials as the Secretary of Defense determines appropriate.

"(d) Duties.—The duties of the official designated under subsection (b) shall include the following:

"(1) Strategic plan.—Developing a detailed strategic plan to acquire, develop, mature, adopt, and transition artificial intelligence technologies into operational use. Such plan shall include the following:

"(A) A strategic roadmap for the identification and coordination of the development and fielding of artificial intelligence technologies and key enabling capabilities.

"(B) The continuous evaluation and adaptation of relevant artificial intelligence capabilities developed both inside the Department and in other organizations for military missions and business operations.

"(2) Acceleration of acquisition, development and fielding of artificial intelligence.—The official designated under subsection (b) shall—

"(A) use the flexibility of regulations, personnel, acquisition, partnerships with industry and academia, or other relevant policies of the Department to accelerate the acquisition and fielding of artificial intelligence capabilities;

"(B) ensure engagement with defense and private industries, research universities, and unaffiliated, nonprofit research institutions;

"(C) provide technical advice and support to entities in the Department and the military departments to optimize the use of artificial intelligence and machine learning technologies to meet Department missions;

"(D) support the development of requirements for artificial intelligence capabilities that address the highest priority capability gaps of the Department and technical feasibility;

"(E) develop and support capabilities for technical analysis and assessment of threat capabilities based on artificial intelligence;

"(F) ensure that the Department has appropriate workforce and capabilities at laboratories, test ranges, and within the organic defense industrial base to support the artificial intelligence capabilities and requirements of the Department;

"(G) develop classification guidance for all artificial intelligence related activities of the Department;

"(H) develop standard data formats for the Department that—

"(i) aid in defining the relative maturity of datasets; and

"(ii) inform best practices for cost and schedule computation, data collection strategies aligned to mission outcomes, and dataset maintenance practices;

"(I) establish data and model usage agreements and collaborative partnership agreements for artificial intelligence product development with each organization and element of the Department, including each of the Armed Forces;

"(J) work with appropriate officials to develop appropriate ethical, legal, and other policies for the Department governing the development and use of artificial intelligence enabled systems and technologies in operational situations; and

"(K) ensure—

"(i) that artificial intelligence programs of each military department and of the Defense Agencies are consistent with the priorities identified under this section;

"(ii) appropriate coordination of artificial intelligence activities of the Department with interagency, industry, and international efforts relating to artificial intelligence, including relevant participation in standards setting bodies; and

"(iii) that appropriate entities in the Department are reviewing all open source publications from both the United States and outside the United States that contribute to, affect, or advance—

     "(I) artificial intelligence research and development; or

     "(II) the understanding of the Secretary concerning the investments by adversaries of the United States in artificial intelligence and the development by such adversaries of capabilities relating to artificial intelligence.

"(3) Chief digital and artificial intelligence officer governing council.—

"(A) Establishment.—The Secretary shall establish a council to provide policy oversight to ensure the responsible, coordinated, and ethical employment of data and artificial intelligence capabilities across Department of Defense missions and operations. Such council shall be known as the 'Chief Digital and Artificial Intelligence Officer Governing Council' (in this paragraph referred to as the 'Council').

"(B) Membership.—The Council shall be composed of the following:

"(i) Joint Staff J–6.

"(ii) The Under Secretary of Defense for Acquisition and Sustainment.

"(iii) The Under Secretary of Defense for Research and Evaluation.

"(iv) The Under Secretary of Defense for Intelligence and Security.

"(v) The Under Secretary of Defense for Policy.

"(vi) The Director of Cost Analysis and Program Evaluation.

"(vii) The Chief Information Officer of the Department.

"(viii) The Director of Administration and Management.

"(ix) The service acquisition executives of each of the military departments.

"(C) Head of council.—The Council shall be headed by the Chief Digital and Artificial Intelligence Officer of the Department.

"(D) Meetings.—The Council shall meet not less frequently than twice each fiscal year.

"(E) Duties of council.—The duties of the Council are as follows:

"(i) To streamline the organizational structure of the Department as such structure relates to the development, implementation, and oversight of artificial intelligence.

"(ii) To improve coordination on artificial intelligence governance with the defense industry sector.

"(iii) To issue and oversee guidance on ethical requirements and protections for the use of artificial intelligence supported by Department funding and the reduction or mitigation of instances of unintended bias in artificial intelligence algorithms.

"(iv) To identify, monitor, and periodically update appropriate recommendations for the operational use of artificial intelligence.

"(v) To review, to the extent the head of the Council considers necessary, artificial intelligence program funding, to ensure that any investment by the Department in an artificial intelligence tool, system, or algorithm adheres to each applicable policy of the Department relating to artificial intelligence.

"(vi) To provide periodic status updates on the efforts of the Department to develop and implement artificial intelligence into existing Department programs and processes.

"(vii) To issue guidance on access and distribution restrictions relating to data, models, tool sets, or testing or validation infrastructure.

"(viii) To implement and oversee an educational program on data and artificial intelligence, for the purpose of familiarizing personnel Department-wide on the applications of artificial intelligence within the respective operations of such personnel.

"(ix) To implement and oversee a scorecard to assess data decrees of the Department.

"(x) With respect to artificial intelligence models and advanced artificial intelligence technologies—

     "(I) to identify and assess artificial intelligence models and advanced artificial intelligence technologies that could pose a national security risk if accessed by an adversary of the United States;

     "(II) to develop strategies to prevent unauthorized access and usage of potent artificial intelligence models by countries that are adversaries of the United States; and

     "(III) to make recommendations to Congress and relevant Federal agencies for legislative or administrative action in the field of artificial intelligence.

"(xi) Such other duties as the Council determines appropriate.

"(F) Periodic reports.—Not later than 180 days after the date of the enactment of the National Defense Authorization Act for Fiscal Year 2024 [Dec. 22, 2023], and not less frequently than once every 18 months thereafter, the Council shall submit to the Secretary and the congressional defense committees [Committees on Armed Services and Appropriations of the Senate and the House of Representatives] a report on the activities of the Council during the period covered by the report.

"(e) Access to Information.—Not later than 180 days after the date of the enactment of the William M. (Mac) Thornberry National Defense Authorization Act for Fiscal Year 2021 [Pub. L. 116–283; approved Jan. 1, 2021], the Secretary of Defense shall issue regulations to ensure that the official designated under subsection (b) has access to such information on programs and activities of the military departments and other Defense Agencies as the Secretary considers appropriate to carry out the duties set forth in subsection (d). At a minimum, such access shall ensure that the official designated under subsection (b) has the ability to discover, access, share, and appropriately reuse data and models of the Armed Forces and other organizations and elements of the Department of Defense, build and maintain artificial intelligence capabilities for the Department, and execute the duties assigned to the Director by the Secretary.

"(f) Delineation of Definition of Artificial Intelligence.—Not later than one year after the date of the enactment of this Act [Aug. 13, 2018], the Secretary shall delineate a definition of the term 'artificial intelligence' for use within the Department.

"(g) Artificial Intelligence Defined.—In this section, the term 'artificial intelligence' includes the following:

"(1) Any artificial system that performs tasks under varying and unpredictable circumstances without significant human oversight, or that can learn from experience and improve performance when exposed to data sets.

"(2) An artificial system developed in computer software, physical hardware, or other context that solves tasks requiring human-like perception, cognition, planning, learning, communication, or physical action.

"(3) An artificial system designed to think or act like a human, including cognitive architectures and neural networks.

"(4) A set of techniques, including machine learning, that is designed to approximate a cognitive task.

"(5) An artificial system designed to act rationally, including an intelligent software agent or embodied robot that achieves goals using perception, planning, reasoning, learning, communicating, decision making, and acting."

[Pub. L. 117–263, div. A, title II, §212(m), Dec. 23, 2022, 136 Stat. 2471, provided that: "Any reference in any law, regulation, guidance, instruction, or other document of the Federal Government to the Director of the Joint Artificial Intelligence Center of the Department of Defense or to the Joint Artificial Intelligence Center shall be deemed to refer to the official designated under section 238(b) of the John S. McCain National Defense Authorization Act for Fiscal Year 2019 (Public Law 115–232; 10 U.S.C. note prec. 4061) [set out above] or the office of such official, as the case may be."]

Support for National Security Innovation and Entrepreneurial Education

Pub. L. 115–91, div. A, title II, §225, Dec. 12, 2017, 131 Stat. 1334, as amended by Pub. L. 115–232, div. A, title II, §233, Aug. 13, 2018, 132 Stat. 1692; Pub. L. 116–92, div. A, title II, §219, Dec. 20, 2019, 133 Stat. 1260, provided that:

"(a) Support Authorized.—

"(1) In general.—The Secretary of Defense may, acting through the Under Secretary of Defense for Research and Engineering, support national security innovation and entrepreneurial education programs.

"(2) Elements.—Support under paragraph (1) may include the following:

"(A) Materials to recruit participants, including veterans, for programs described in paragraph (1).

"(B) Model curriculum for such programs.

"(C) Training materials for such programs.

"(D) Best practices for the conduct of such programs.

"(E) Experimental learning opportunities for program participants to interact with operational forces and better understand national security challenges.

"(F) Exchanges and partnerships with Department of Defense science and technology activities.

"(G) Activities consistent with the Proof of Concept Commercialization Pilot Program established under section 1603 of the National Defense Authorization Act for Fiscal Year 2014 (Public Law 113–66; 10 U.S.C. 2359 note [now 10 U.S.C. 4007 note]).

"(b) Consultation.—In carrying out subsection (a), the Secretary may consult with the heads of such Federal agencies, universities, and public and private entities engaged in the development of advanced technologies as the Secretary determines to be appropriate.

"(c) Authorities.—The Secretary may—

"(1) develop and maintain metrics to assess national security innovation and entrepreneurial education activities to ensure standards for programs supported under subsection (b) are consistent and being met; and

"(2) ensure that any recipient of an award under the Small Business Technology Transfer program, the Small Business Innovation Research program, and science and technology programs of the Department of Defense has the option to participate in training under a national security innovation and entrepreneurial education program supported under subsection (b).

"(d) Participation by Federal Employees and Members of the Armed Forces.—The Secretary may encourage Federal employees and members of the Armed Forces to participate in a national security innovation and entrepreneurial education program supported under subsection (a) in order to gain exposure to modern innovation and entrepreneurial methodologies.

"(e) Coordination.—In carrying out this section, the Secretary shall consider coordinating and partnering with activities and organizations involved in the following:

"(1) Hack the Army.

"(2) Hack the Air Force.

"(3) Hack the Pentagon.

"(4) The Army Digital Service.

"(5) The Defense Digital Service.

"(6) The Air Force Digital Service.

"(7) Challenge and prize competitions of the Defense Advanced Research Projects Agency (DARPA).

"(8) The Defense Science Study Group.

"(9) The Small Business Innovation Research Program (SBIR).

"(10) The Small Business Technology Transfer Program (STTR).

"(11) War colleges of the military departments.

"(12) Hacking for Defense.

"(13) The National Security Science and Engineering Faculty Fellowship (NSSEFF) program.

"(14) The Science, Mathematics and Research for Transformation (SMART) scholarship program.

"(15) The young faculty award program of the Defense Advanced Research Projects Agency.

"(16) The National Security Technology Accelerator.

"(17) The I-Corps Program.

"(18) The Lab-Embedded Entrepreneurship Programs of the Department of Energy."

Hypersonics Development

Pub. L. 109–364, div. A, title II, §218, Oct. 17, 2006, 120 Stat. 2126, as amended by Pub. L. 112–81, div. A, title II, §241, Dec. 31, 2011, 125 Stat. 1343; Pub. L. 114–92, div. A, title X, §1079(f), Nov. 25, 2015, 129 Stat. 999; Pub. L. 115–91, div. A, title II, §214(b), Dec. 12, 2017, 131 Stat. 1325; Pub. L. 116–92, div. A, title II, §216, Dec. 20, 2019, 133 Stat. 1257; Pub. L. 116–283, div. A, title II, §217(e), Jan. 1, 2021, 134 Stat. 3462, provided that:

"(a) Establishment of Joint Hypersonics Transition Office.—The Secretary of Defense shall establish within the Office of the Secretary of Defense a Joint Hypersonics Transition Office (in this section referred to as the 'Office'). The Office shall carry out the program and activities described in subsections (b) and (c) and shall have such other responsibilities relating to hypersonics as the Secretary shall specify[.]

"(b) University Expertise.—

"(1) Arrangement with institutions of higher education.—Using the authority specified in section 217 of the National Defense Authorization Act for Fiscal Year 2018 (Public Law 115–91; 10 U.S.C. 2358 note [now 10 U.S.C. 4001 note]) or another similar authority, the Office shall seek to enter into an arrangement with one or more institutions of higher education (as defined in section 101 of the Higher Education Act of 1965 (20 U.S.C. 1001)) under which such institutions may provide the Office with foundational and applied hypersonic research, development, and workforce support in areas that the Office determines to be relevant for the Department of Defense.

"(2) Availability of information.—The Office shall ensure that the results of any research and reports produced pursuant to an arrangement under paragraph (1) are made available to the Federal Government, the private sector, academia, and international partners consistent with appropriate security classification guidance.

"(c) Responsibilities.—The Office shall do the following:

"(1) Expedite testing, evaluation, and acquisition of hypersonic technologies to meet the stated needs of the warfighter, including flight testing, ground-based-testing, and underwater launch testing.

"(2) Ensure prototyping demonstration programs on hypersonic systems integrate advanced technologies to speed the maturation and deployment of future hypersonic systems.

"(3) Ensure that any demonstration program on hypersonic systems is carried out only if determined to be consistent with the roadmap for the relevant critical technology area supportive of the National Defense Strategy, as developed by the senior official with responsibility for such area under section 217 of the William M. (Mac) Thornberry National Defense Authorization Act for Fiscal Year 2021 [Pub. L. 116–283; 10 U.S.C. 4001 note].

"(4) Develop strategies and roadmaps for hypersonic technologies to enable the transition of such technologies to future operational capabilities for the warfighter.

"(5) Develop and implement a strategy for enhancing the current and future hypersonics workforce.

"(6) Coordinate with relevant stakeholders and agencies to support the technological advantage of the United States in developing hypersonic systems."

Research and Development of Defense Biomedical Countermeasures

Pub. L. 108–136, div. A, title XVI, §1601, Nov. 24, 2003, 117 Stat. 1680, as amended by Pub. L. 112–81, div. A, title X, §1062(g)(3), Dec. 31, 2011, 125 Stat. 1585; Pub. L. 113–291, div. A, title X, §1071(b)(5)(B), Dec. 19, 2014, 128 Stat. 3507; Pub. L. 114–92, div. A, title VIII, §815(d), Nov. 25, 2015, 129 Stat. 896; Pub. L. 117–81, div. A, title II, §215(d)(1), Dec. 27, 2021, 135 Stat. 1593, provided that:

"(a) In General.—The Secretary of Defense (in this section referred to as the 'Secretary') shall carry out a program to accelerate the research, development and procurement of biomedical countermeasures, including but not limited to therapeutics and vaccines, for the protection of the Armed Forces from attack by one or more biological, chemical, radiological, or nuclear agents.

"(b) Interagency Cooperation.—(1) In carrying out the program under subsection (a), the Secretary may enter into interagency agreements and other collaborative undertakings with other Federal agencies.

"(2) The Secretary, through regular, structured, and close consultation with the Secretary of Health and Human Services and the Secretary of Homeland Security, shall ensure that the activities of the Department of Defense in carrying out the program are coordinated with, complement, and do not unnecessarily duplicate activities of the Department of Health and Human Services or the Department of Homeland Security.

"(c) Expedited Procurement Authority.—(1) For any procurement of property or services for use (as determined by the Secretary) in performing, administering, or supporting biomedical countermeasures research and development, the Secretary may, when appropriate, use streamlined acquisition procedures and other expedited procurement procedures authorized in—

"(A) section 1903 of title 41, United States Code; and

"(B) sections 2371 and 2371b of title 10, United States Code [now 10 U.S.C. 4021 and 4022].

"(2) Notwithstanding paragraph (1) and the provisions of law referred to in such paragraph, each of the following provisions shall apply to the procurements described in this subsection to the same extent that such provisions would apply to such procurements in the absence of paragraph (1):

"(A) Chapter 37 of title 40, United States Code (relating to contract work hours and safety standards).

"(B) Section 8703(a) of title 41, United States Code.

"(C) Section 2313 of title 10, United States Code [see 10 U.S.C. 3841] (relating to the examination of contractor records).

"(3) The Secretary shall institute appropriate internal controls for use of the authority under paragraph (1), including requirements for documenting the justification for each use of such authority.

"(d) Department of Defense Facilities Authority.—(1) If the Secretary determines that it is necessary to acquire, lease, construct, or improve laboratories, research facilities, and other real property of the Department of Defense in order to carry out the program under this section, the Secretary may do so using the procedures set forth in paragraphs (2), (3), (4), and (5).

"(2) The Secretary shall use existing construction authorities provided by subchapter I of chapter 169 of title 10, United States Code, to the maximum extent possible.

"(3)(A) If the Secretary determines that use of authorities in paragraph (2) would prevent the Department from meeting a specific facility requirement for the program, the Secretary shall submit to the congressional defense committees [Committees on Armed Services and Appropriations of Senate and House of Representatives] advance notification, which shall include the following:

"(i) Certification by the Secretary that use of existing construction authorities would prevent the Department from meeting the specific facility requirement.

"(ii) A detailed explanation of the reasons why existing authorities cannot be used.

"(iii) A justification of the facility requirement.

"(iv) Construction project data and estimated cost.

"(v) Identification of the source or sources of the funds proposed to be expended.

"(B) The facility project may be carried out only after the end of the 21-day period beginning on the date the notification is received by the congressional defense committees.

"(4) If the Secretary determines: (A) that the facility is vital to national security or to the protection of health, safety, or the quality of the environment; and (B) the requirement for the facility is so urgent that the advance notification in paragraph (3) and the subsequent 21-day deferral of the facility project would threaten the life, health, or safety of personnel, or would otherwise jeopardize national security, the Secretary may obligate funds for the facility and notify the congressional defense committees within seven days after the date on which appropriated funds are obligated with the information required in paragraph (3).

"(5) Nothing in this section shall be construed to authorize the Secretary to acquire, construct, lease, or improve a facility having general utility beyond the specific purposes of the program.

"(6) In this subsection, the term 'facility' has the meaning given the term in section 2801(c) of title 10, United States Code.

"(e) Authority for Personal Services Contracts.—(1) Subject to paragraph (2), the authority provided by section 1091 of title 10, United States Code, for personal services contracts to carry out health care responsibilities in medical treatment facilities of the Department of Defense shall also be available, subject to the same terms and conditions, for personal services contracts to carry out research and development activities under this section. The number of individuals whose personal services are obtained under this subsection may not exceed 30 at any time.

"(2) The authority provided by such section 1091 may not be used for a personal services contract unless the contracting officer for the contract ensures that—

"(A) the services to be procured are urgent or unique; and

"(B) it would not be practicable for the Department of Defense to obtain such services by other measures.

"(f) Streamlined Personnel Authority.—(1) The Secretary may appoint highly qualified experts, including scientific and technical personnel, to carry out research and development under this section in accordance with the authorities provided in section 4121(a) of title 10, United States Code, [former] section 1101 of the Strom Thurmond National Defense Authorization Act for Fiscal Year 1999 (Public Law 105–261 [5 U.S.C. 3104 note]), and section 1101 of this Act [enacting chapter 99 of Title 5, Government Organization and Employees, and provisions set out as a note under section 9901 of Title 5].

"(2) The Secretary may use the authority under paragraph (1) only upon a determination by the Secretary that use of such authority is necessary to accelerate the research and development under the program.

"(3) The Secretary shall institute appropriate internal controls for each use of the authority under paragraph (1)."

Defense Nanotechnology Research and Development Program

Pub. L. 107–314, div. A, title II, §246, Dec. 2, 2002, 116 Stat. 2500, as amended by Pub. L. 110–181, div. A, title II, §240, Jan. 28, 2008, 122 Stat. 48; Pub. L. 111–84, div. A, title II, §242, Oct. 28, 2009, 123 Stat. 2237; Pub. L. 112–239, div. A, title X, §1076(c)(2)(A)(iv), Jan. 2, 2013, 126 Stat. 1950, provided that:

"(a) Establishment.—The Secretary of Defense shall carry out a defense nanotechnology research and development program.

"(b) Purposes.—The purposes of the program are as follows:

"(1) To ensure United States global superiority in nanotechnology necessary for meeting national security requirements.

"(2) To coordinate all nanoscale research and development within the Department of Defense, and to provide for interagency cooperation and collaboration on nanoscale research and development between the Department of Defense and other departments and agencies of the United States that are involved in the National Nanotechnology Initiative and with the National Nanotechnology Coordination Office under section 3 of the 21st Century Nanotechnology Research and Development Act (15 U.S.C. 7502).

"(3) To develop and manage a portfolio of nanotechnology research and development initiatives that is stable, consistent, and balanced across scientific disciplines.

"(4) To accelerate the transition and deployment of technologies and concepts derived from nanoscale research and development into the Armed Forces, and to establish policies, procedures, and standards for measuring the success of such efforts.

"(5) To collect, synthesize, and disseminate critical information on nanoscale research and development.

"(c) Administration.—In carrying out the program, the Secretary shall act through the Under Secretary of Defense for Acquisition, Technology, and Logistics, who shall supervise the planning, management, and coordination of the program. The Under Secretary, in consultation with the Secretaries of the military departments and the heads of participating Defense Agencies and other departments and agencies of the United States, shall—

"(1) prescribe a set of long-term challenges and a set of specific technical goals for the program;

"(2) develop a coordinated and integrated research and investment plan for meeting the long-term challenges and achieving the specific technical goals that builds upon investments by the Department and other departments and agencies participating in the National Nanotechnology Initiative in nanotechnology research and development;

"(3) develop memoranda of agreement, joint funding agreements, and other cooperative arrangements necessary for meeting the long-term challenges and achieving the specific technical goals; and

"(4) oversee Department of Defense participation in interagency coordination of the program with other departments and agencies participating in the National Nanotechnology Initiative.

"(d) Strategic Plan.—The Under Secretary shall develop and maintain a strategic plan for defense nanotechnology research and development that—

"(1) is integrated with the strategic plan for the National Nanotechnology Initiative and the strategic plans of the Assistant Secretary of Defense for Research and Engineering, the military departments, and the Defense Agencies; and

"(2) includes a clear strategy for transitioning the research into products needed by the Department.

"(e) Reports.—The Under Secretary of Defense for Acquisition, Technology, and Logistics shall submit to the National Science and Technology Council information on the program that covers the information described in paragraphs (1) through (5) of section 2(d) of the 21st Century Nanotechnology Research and Development Act (15 U.S.C. 7501(d)) to be included in the annual report submitted by the Council under that section."

Program To Increase Business Innovation in Defense Acquisition Programs

Pub. L. 106–65, div. A, title VIII, §812(a)–(c), (e), Oct. 5, 1999, 113 Stat. 709, 710, provided that:

"(a) Requirement To Develop Plan.—Not later than March 1, 2000, the Secretary of Defense shall publish in the Federal Register for public comment a plan to provide for increased innovative technology for acquisition programs of the Department of Defense from commercial private sector entities, including small-business concerns.

"(b) Implementation of Plan.—Not later than March 1, 2001, the Secretary of Defense shall implement the plan required by subsection (a), subject to any modifications the Secretary may choose to make in response to comments received.

"(c) Elements of Plan.—The plan required by subsection (a) shall include, at a minimum, the following elements:

"(1) Procedures through which commercial private sector entities, including small-business concerns, may submit proposals recommending cost-saving and innovative ideas to acquisition program managers.

"(2) A review process designed to make recommendations on the merit and viability of the proposals submitted under paragraph (1) at appropriate times during the acquisition cycle.

"(3) Measures to limit potential disruptions to existing contracts and programs from proposals accepted and incorporated into acquisition programs of the Department of Defense.

"(4) Measures to ensure that research and development efforts of small-business concerns are considered as early as possible in a program's acquisition planning process to accommodate potential technology insertion without disruption to existing contracts and programs.

"(e) Small-Business Concern Defined.—In this section, the term 'small-business concern' has the same meaning as the meaning of such term as used in the Small Business Act (15 U.S.C. 631 et seq.)."

§4061. Defense Research and Development Rapid Innovation Program

(a) Program Established.—(1) The Secretary of Defense shall establish a competitive, merit-based program to enable and assist small businesses to accelerate the commercialization of various technologies, including critical technologies developed pursuant to phase II Small Business Innovation Research Program projects, phase II Small Business Technology Transfer Program projects, technologies developed by the defense laboratories, capabilities developed through competitively awarded prototype agreements and other innovative technologies (including dual use technologies).

(2) The purpose of this program is to stimulate innovative technologies and reduce acquisition or lifecycle costs, address technical risks, improve the timeliness and thoroughness of test and evaluation outcomes, support the integration of such products, and rapidly insert such products directly in support of primarily major defense acquisition programs, but also other defense acquisition programs that meet critical national security needs.

(b) Guidelines.—The Secretary shall issue guidelines for the operation of the program. At a minimum such guidance shall provide for the following:

(1) The issuance of one or more broad agency announcements or the use of any other competitive or merit-based processes by the Department of Defense for candidate proposals in support of primarily major defense acquisition programs, but also other defense acquisition programs as described in subsection (a).

(2) The review of candidate proposals by the Department of Defense and by each Office of Small Business Programs of each military department and the merit-based selection of the most promising cost-effective proposals for funding through contracts, cooperative agreements, and other transactions for the purposes of carrying out the program.

(3) The total amount of funding provided to any project under the program from funding provided under subsection (d) shall not exceed $6,000,000.

(4) No project shall receive more than a total of two years of funding under the program from funding provided under subsection (d), unless the Secretary, or the Secretary's designee, approves funding for any additional year.

(5) Mechanisms to facilitate transition of follow-on or current projects carried out under the program into defense acquisition programs, through the use of the authorities of section 4004 of this title or such other authorities as may be appropriate to conduct further testing, low rate production, or full rate production of technologies developed under the program.

(6) Projects are selected using merit-based selection procedures and the selection of projects is not subject to undue influence by Congress or other Federal agencies.

(7) A preference under the program for funding small business concerns.

(c) Treatment Pursuant to Certain Congressional Rules.—Nothing in this section shall be interpreted to require or enable any official of the Department of Defense to provide funding under this section to any earmark as defined pursuant to House Rule XXI, clause 9, or any congressionally directed spending item as defined pursuant to Senate Rule XLIV, paragraph 5.

(d) Funding.—(1) Subject to the availability of appropriations for such purpose and to the limitation under paragraph (2), the amounts authorized to be appropriated for research, development, test, and evaluation for a fiscal year may be used for such fiscal year for the program established under subsection (a).

(2) During any fiscal year, the total amount of awards in an amount greater than $6,000,000 made under the program established under subsection (a) may not exceed 25 percent of the amount made available to carry out such program during such fiscal year.

(e) Transfer Authority.—(1) The Secretary may transfer funds available for the program to the research, development, test, and evaluation accounts of a military department, defense agency, or the unified combatant command for special operations forces pursuant to a proposal, or any part of a proposal, that the Secretary determines would directly support the purposes of the program.

(2) The transfer authority provided in this subsection is in addition to any other transfer authority available to the Department of Defense.

(Added Pub. L. 115–232, div. A, title II, §224(a)(1), Aug. 13, 2018, 132 Stat. 1683, §2359a; amended Pub. L. 116–92, div. A, title VIII, §878(a), Dec. 20, 2019, 133 Stat. 1530; renumbered §4061 and amended Pub. L. 116–283, div. A, title XVIII, §§1842(b), 1883(b)(2), Jan. 1, 2021, 134 Stat. 4244, 4294; Pub. L. 117–81, div. A, title XVII, §1701(d)(8), (q)(1), (u)(3)(B), Dec. 27, 2021, 135 Stat. 2136, 2148, 2152; Pub. L. 118–31, div. A, title VIII, §860, Dec. 22, 2023, 137 Stat. 346.)

Editorial Notes

Prior Provisions

A prior section 4061 was renumbered section 7381 of this title.

Amendments

2023—Subsec. (a)(1). Pub. L. 118–31, §860(1)(A), inserted "to enable and assist small businesses" after "merit-based program" and "capabilities developed through competitively awarded prototype agreements" after "defense laboratories," and substituted "commercialization of various technologies, including critical technologies" for "fielding of technologies".

Subsec. (a)(2). Pub. L. 118–31, §860(1)(B), inserted "support the integration of such products," after "evaluation outcomes,".

Subsec. (b)(1). Pub. L. 118–31, §860(2)(A), inserted "primarily major defense acquisition programs, but also other" after "candidate proposals in support of".

Subsec. (b)(2). Pub. L. 118–31, §860(2)(B), substituted "by each Office of Small Business Programs of each military department" for "by each military department".

Subsec. (d)(2). Pub. L. 118–31, §860(3), substituted "$6,000,000" for "$3,000,000".

2021—Pub. L. 116–283, §1842(b), as amended by Pub. L. 117–81, §1701(q)(1), (u)(3)(B), renumbered section 2359a of this title as this section.

Subsec. (b)(5). Pub. L. 117–81, §1701(d)(8), which directed the substitution of "section 4004" for "section 2302e", could not be executed because of the intervening amendment by Pub. L. 116–283, §1883(b)(2). See note below.

Pub. L. 116–283, §1883(b)(2), substituted "section 4004" for "section 2302e".

2019—Subsec. (a)(1). Pub. L. 116–92, §878(a)(1), inserted "phase II Small Business Technology Transfer Program projects," after "projects,".

Subsec. (b)(3). Pub. L. 116–92, §878(a)(2)(A), substituted "$6,000,000." for "$3,000,000, unless the Secretary, or the Secretary's designee, approves a larger amount of funding for the project."

Subsec. (b)(7). Pub. L. 116–92, §878(a)(2)(B), added par. (7).

Subsec. (d). Pub. L. 116–92, §878(a)(3), designated existing provisions as par. (1), inserted "and to the limitation under paragraph (2)" after "for such purpose", and added par. (2).

Statutory Notes and Related Subsidiaries

Effective Date of 2021 Amendment

Amendment by section 1701(d)(8) of Pub. L. 117–81 to take effect immediately after the amendments made by title XVIII of Pub. L. 116–283 have taken effect, see section 1701(a)(3) of Pub. L. 117–81, set out in a note preceding section 3001 of this title and note below.

Amendment by section 1701(q)(1), (u)(3)(B) of Pub. L. 117–81 applicable as if included in the enactment of title XVIII of Pub. L. 116–283 as enacted, see section 1701(a)(2) of Pub. L. 117–81, set out in a note preceding section 3001 of this title and note below.

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 a note preceding section 3001 of this title.

Regional Activities

Pub. L. 117–81, div. A, title II, §213(b), Dec. 27, 2021, 135 Stat. 1589, provided that: "Subject to the availability of appropriations for such purpose, the Secretary of Defense may expand the efforts of the Defense Innovation Unit to engage and collaborate with private-sector industry and communities in various regions of the United States—

"(1) to accelerate the adoption of commercially developed advanced technology in modernization priority areas and such other key technology areas as may be identified by the Secretary; and

"(2) to expand outreach to communities that do not otherwise have a Defense Innovation Unit presence, including economically disadvantaged communities."

Pilot Program To Accelerate the Procurement and Fielding of Innovative Technologies

Pub. L. 117–81, div. A, title VIII, §834, Dec. 27, 2021, 135 Stat. 1835, as amended by Pub. L. 117–263, div. A, title VIII, §845, Dec. 23, 2022, 136 Stat. 2720, which authorized the Secretary of Defense to establish a competitive, merit-based pilot program to accelerate the procurement and fielding of innovative technologies and required the Secretary to issue guidelines for the operation of such pilot program, was repealed by Pub. L. 118–159, div. A, title VIII, §861(b), Dec. 23, 2024, 138 Stat. 2000. See section 3604 of this title.

§4062. Defense Acquisition Challenge Program

(a) Program Required.—(1) The Secretary of Defense, acting through the Under Secretary of Defense for Research and Engineering, shall carry out a program to provide opportunities for the increased introduction of innovative and cost-saving technology in acquisition programs of the Department of Defense.

(2) The program, to be known as the Defense Acquisition Challenge Program (hereinafter in this section referred to as the "Challenge Program"), shall provide any person or activity within or outside the Department of Defense with the opportunity to propose alternatives, to be known as challenge proposals, at the component, subsystem, system, or system-of-systems level of an existing Department of Defense acquisition program, or to address any broader functional challenge to Department of Defense missions that may not fall within an acquisition program, that would result in improvements in performance, affordability, manufacturability, or operational capability of that acquisition program or function.

(b) Panels.—The Under Secretary shall establish one or more panels of highly qualified scientists and engineers (hereinafter in this section referred to as "Panels") to provide preliminary evaluations of challenge proposals under subsection (c).

(c) Preliminary Evaluation by Panels.—(1) Under procedures prescribed by the Under Secretary, a person or activity within or outside the Department of Defense may submit challenge proposals to a Panel, through the unsolicited proposal process or in response to a broad agency announcement.

(2) The Under Secretary shall establish procedures pursuant to which appropriate officials of the Department of Defense may identify proposals submitted through the unsolicited proposal process as challenge proposals. The procedures shall provide for the expeditious referral of such proposals to a Panel for preliminary evaluation under this subsection.

(3) The Under Secretary shall issue on an annual basis not less than one such broad agency announcement inviting interested parties to submit challenge proposals. Such announcements may also identify particular technology areas and acquisition programs or functions that will be given priority in the evaluation of challenge proposals.

(4)(A) The Under Secretary shall establish procedures for the prompt issuance of a solicitation for challenge proposals addressing—

(i) any acquisition program for which, since the last such announcement, the Secretary concerned has determined under section 4374 of this title that the program's acquisition unit cost or procurement unit cost has increased by a percentage equal to or greater than the critical cost growth threshold for the program (in this section referred to as a "critical cost growth threshold breach");

(ii) any design, engineering, manufacturing, or technology integration issues, in accordance with the assessment required by section 4375(b) of this title, that have contributed significantly to the cost growth of such program; and

(iii) any functional challenges of importance to Department of Defense missions.

(B) A solicitation under this paragraph may be included in a broad agency announcement issued pursuant to paragraph (3) as long as the broad agency announcement is released in an expeditious manner following the determination of the Secretary concerned that a critical cost growth threshold breach has occurred with respect to a major defense acquisition program.

(5) Under procedures established by the Under Secretary, a Panel shall carry out a preliminary evaluation of each challenge proposal submitted in response to a broad agency announcement, or submitted through the unsolicited proposal process and identified as a challenge proposal in accordance with paragraph (2), to determine each of the following:

(A) Whether the challenge proposal has merit.

(B) Whether the challenge proposal is likely to result in improvements in performance, affordability, manufacturability, or operational capability at the component, subsystem, system, or system-of-systems level of an acquisition program.

(C) Whether the challenge proposal could be implemented in the acquisition program rapidly, at an acceptable cost, and without unacceptable disruption to the acquisition program.

(D) Whether the challenge proposal is likely to result in improvements to any functional challenges of importance to Department of Defense missions, and whether the proposal could be implemented rapidly, at an acceptable cost, and without unacceptable disruption to such missions.

(6) The Under Secretary—

(A) may establish procedures to ensure that the Challenge Program does not become an avenue for the repetitive submission of proposals that have been previously reviewed and found not to have merit; and

(B) may establish procedures to ensure that the Challenge Program establishes appropriate priorities for proposals from businesses that are not major contractors with the Department of Defense.

(7) If a Panel determines that a challenge proposal satisfies each of the criteria specified in paragraph (5), the person or activity submitting that challenge proposal shall be provided an opportunity to submit such challenge proposal for a full review and evaluation under subsection (d).

(d) Full Review and Evaluation.—(1) Under procedures prescribed by the Under Secretary, for each challenge proposal submitted for a full review and evaluation as provided in subsection (c)(7), the office carrying out the acquisition program to which the proposal relates shall, in consultation with the prime system contractor carrying out such program, conduct a full review and evaluation of the proposal.

(2) The full review and evaluation shall, independent of the determination of a Panel under subsection (c)(5), determine each of the matters specified in subparagraphs (A), (B), and (C) of such subsection. The full review and evaluation shall also include—

(A) an assessment of the cost of adopting the challenge proposal and implementing it in the acquisition program; and

(B) consideration of any intellectual property issues associated with the challenge proposal.

(e) Action Upon Favorable Full Review and Evaluation.—(1) Under procedures prescribed by the Under Secretary, each challenge proposal determined under a full review and evaluation to satisfy each of the criteria specified in subsection (c)(5) with respect to an acquisition program shall be considered by the office carrying out the applicable acquisition program and the prime system contractor for incorporation into the acquisition program as a new technology insertion at the component, subsystem, system, or system-of-systems level.

(2) The Under Secretary shall encourage the adoption of each challenge proposal referred to in paragraph (1) by providing suitable incentives to the office carrying out the acquisition program and the prime system contractor carrying out such program.

(3) In the case of a challenge proposal submitted in response to a solicitation issued as a result of a critical cost growth threshold breach that is determined under full review and evaluation to satisfy each of the criteria specified in subsection (c)(5), the Under Secretary shall establish guidelines for covering the costs of the challenge proposal. If appropriate, such guidelines shall not be restricted to funding provided by the Defense Acquisition Challenge Program, but shall also consider alternative funding sources, such as the acquisition program with respect to which the breach occurred.

(f) Action Upon Unfavorable Full Review and Evaluation.—Under procedures prescribed by the Under Secretary, if a challenge proposal is determined by a Panel to satisfy each of the criteria specified in subsection (c)(5), but is not determined under a full review and evaluation to satisfy such criteria, the following provisions apply:

(1) The office carrying out the full review and evaluation shall provide to the Panel that conducted the preliminary evaluation a statement containing a summary of the rationale for the unfavorable evaluation.

(2) If the Panel disagrees with the rationale provided under paragraph (1), the Panel may return the challenge proposal to the office for further consideration.

(g) Access to Technical Resources.—(1) Under procedures established by the Under Secretary, the technical resources of the laboratories, research, development, and engineering centers, test and evaluation activities, and other elements of the Department may be called upon to support the activities of the Challenge Program.

(2) Funds available to carry out this program may be used to compensate such laboratories, centers, activities, and elements for technical assistance provided to a Panel pursuant to paragraph (1).

(h) Conflicts of Interest and Confidentiality.—In carrying out each preliminary evaluation under subsection (c) and full review under subsection (d), the Under Secretary shall ensure the elimination of conflicts of interest and that the identity of any person or activity submitting a challenge proposal is not disclosed outside the Federal Government, prior to contract award, without the consent of the person or activity. For purposes of the proceeding sentence, the term "Federal Government" includes both employees of the Federal Government and employees of Federal Government contractors providing advisory and assistance services as described in part 37 of the Federal Acquisition Regulation.

(i) Limitation on Use of Funds.—Funds made available for the Challenge Program may be used only for activities authorized by this section, and not for implementation of challenge proposals.

(j) Treatment of Use of Certain Procedures as Use of Competitive Procedures.—The use of general solicitation competitive procedures established under subsection (c) shall be considered to be the use of competitive procedures for purposes of sections 3201 through 3205 of this title.

(k) System Defined.—In this section, the term "system"—

(1) means—

(A) the organization of hardware, software, material, facilities, personnel, data, and services needed to perform a designated function with specified results (such as the gathering of specified data, its processing, and its delivery to users); or

(B) a combination of two or more interrelated pieces (or sets) of equipment arranged in a functional package to perform an operational function or to satisfy a requirement; and

(2) includes a major system.

(l) Pilot Program for Programs Other Than Major Defense Acquisition Programs.—

(1) In general.—The Under Secretary of Defense for Research and Engineering shall carry out a pilot program to expand the use of the authority provided in this section to provide opportunities for the introduction of innovative and cost-saving approaches to programs other than major defense acquisition programs through the submission, review, and implementation, where appropriate, of qualifying proposals.

(2) Qualifying proposals.—For purposes of this subsection, a qualifying proposal is an offer to supply a nondevelopmental item that—

(A) is evaluated as achieving a level of performance that is at least equal to the level of performance of an item being procured under a covered acquisition program and as providing savings in excess of 15 percent after considering all costs to the Government of implementing such proposal; or

(B) is evaluated as achieving a level of performance that is significantly better than the level of performance of an item being procured under a covered acquisition program without any increase in cost to the Government.

(3) Review procedures.—The Under Secretary shall adopt modifications as may be needed to the procedures applicable to the Challenge Program to provide for Department of Defense review of, and action on, qualifying proposals. Such procedures shall include, at a minimum, the issuance of a broad agency announcement inviting interested parties to submit qualifying proposals in areas of interest to the Department.

(4) Definitions.—In this subsection:

(A) Nondevelopmental item.—The term "nondevelopmental item" has the meaning given that term in section 110 of title 41.

(B) Covered acquisition program.—The term "covered acquisition program" means any acquisition program of the Department of Defense other than a major defense acquisition program, but does not include any contract awarded under an exception to competitive acquisition authorized by the Small Business Act (15 U.S.C. 631 et seq.).

(C) Level of performance.—The term "level of performance", with respect to a nondevelopmental item, means the extent to which the item demonstrates required item functional characteristics.

(5) Sunset.—The authority to carry out the pilot program under this subsection shall terminate on January 7, 2021.

(Added Pub. L. 107–314, div. A, title II, §243(a), Dec. 2, 2002, 116 Stat. 2495, §2359b; amended Pub. L. 109–364, div. A, title II, §213(b), (d)–(g), Oct. 17, 2006, 120 Stat. 2121–2123; Pub. L. 110–417, [div. A], title VIII, §821, Oct. 14, 2008, 122 Stat. 4531; Pub. L. 111–383, div. A, title VIII, §827, Jan. 7, 2011, 124 Stat. 4270; Pub. L. 112–239, div. A, title X, §1076(e)(3), Jan. 2, 2013, 126 Stat. 1951; Pub. L. 113–66, div. A, title X, §1091(a)(10), Dec. 26, 2013, 127 Stat. 876; Pub. L. 113–291, div. A, title X, §1071(a)(6), Dec. 19, 2014, 128 Stat. 3504; Pub. L. 114–328, div. A, title VIII, §828, Dec. 23, 2016, 130 Stat. 2281; Pub. L. 116–92, div. A, title IX, §902(56), Dec. 20, 2019, 133 Stat. 1549; renumbered §4062 and amended Pub. L. 116–283, div. A, title XVIII, §§1842(b), 1883(b)(2), Jan. 1, 2021, 134 Stat. 4244, 4294; Pub. L. 117–81, div. A, title XVII, §1701(d)(9), (q)(1), (u)(3)(B), Dec. 27, 2021, 135 Stat. 2137, 2148, 2152.)

Editorial Notes

References in Text

The Small Business Act, referred to in subsec. (l)(4)(B), is Pub. L. 85–536, §2(1 et seq.), July 18, 1958, 72 Stat. 384, which is classified generally to chapter 14A (§631 et seq.) of Title 15, Commerce and Trade. For complete classification of this Act to the Code, see Short Title note set out under section 631 of Title 15 and Tables.

Amendments

2021—Pub. L. 116–283, §1842(b), as amended by Pub. L. 117–81, §1701(q)(1), (u)(3)(B), renumbered section 2359b of this title as this section.

Subsec. (c)(4)(A)(i). Pub. L. 117–81, §1701(d)(9)(A)(i), which directed the substitution of "section 4374" for "section 2433(d)", could not be executed because of the intervening amendment by Pub. L. 116–283, §1883(b)(2). See note below.

Pub. L. 116–283, §1883(b)(2), substituted "section 4374" for "section 2433(d)".

Subsec. (c)(4)(A)(ii). Pub. L. 117–81, §1701(d)(9)(A)(ii), substituted "section 4375(b)" for "section 2433(e)(2)(A)".

Pub. L. 116–283, §1883(b)(2), which directed that each reference in the text of title 10 to a section that was redesignated by title XVIII of Pub. L. 116–283, as such section was in effect before the redesignation, be amended by striking such reference and inserting a reference to the appropriate redesignated section, could not be executed for "section 2433(e)(2)(A)" as there were no subparagraphs in subsec. (e)(2) of former section 2433 of this title after general amendment by Pub. L. 111–23, title II, §206(a)(3), May 22, 2009, 123 Stat. 1728. Section 2433(e)(2) was transferred to section 4375(b) of this title by Pub. L. 116–283.

Subsec. (j). Pub. L. 117–81, §1701(d)(9)(B), substituted "sections 3201 through 3205" for "chapter 137".

Subsec. (k)(2). Pub. L. 117–81, §1701(d)(9)(C), which directed that "(as defined in section 2302(5) of this title)" be struck out, was executed by striking out "(as defined in section 3041 of this title)" before period at end to reflect the probable intent of Congress and the intervening amendment by Pub. L. 116–283, §1883(b)(2). See note below.

Pub. L. 116–283, §1883(b)(2), substituted "section 3041" for "section 2302(5)".

2019—Subsecs. (a)(1), (l)(1). Pub. L. 116–92 substituted "Under Secretary of Defense for Research and Engineering" for "Under Secretary of Defense for Acquisition, Technology, and Logistics".

2016—Subsec. (a)(2). Pub. L. 114–328, §828(a), substituted "system, or system-of-systems level of an existing Department of Defense acquisition program, or to address any broader functional challenge to Department of Defense missions that may not fall within an acquisition program, that would result in improvements in performance, affordability, manufacturability, or operational capability of that acquisition program or function." for "or system level of an existing Department of Defense acquisition program that would result in improvements in performance, affordability, manufacturability, or operational capability of that acquisition program."

Subsec. (c)(3). Pub. L. 114–328, §828(d)(1), inserted "or functions" after "acquisition programs".

Subsec. (c)(4)(A)(iii). Pub. L. 114–328, §828(d)(2), added cl. (iii).

Subsec. (c)(5)(B). Pub. L. 114–328, §828(d)(4), substituted "system, or system-of-systems" for "or system".

Subsec. (c)(5)(D). Pub. L. 114–328, §828(d)(3), added subpar. (D).

Subsec. (e)(1). Pub. L. 114–328, §828(d)(4), substituted "system, or system-of-systems" for "or system".

Subsec. (j). Pub. L. 114–328, §828(b)(2), added subsec. (j). Former subsec. (j) redesignated (k).

Subsecs. (k), (l). Pub. L. 114–328, §828(b)(1), redesignated subsecs. (j) and (k) as (k) and (l), respectively.

Subsec. (l)(5). Pub. L. 114–328, §828(c), substituted "2021" for "2016".

2014—Subsec. (k)(4)(A). Pub. L. 113–291 substituted "section 110 of title 41" for "section 4 of the Office of Federal Procurement Policy Act (41 U.S.C. 403)".

2013—Subsec. (k)(4)(B). Pub. L. 113–66 inserted period at end.

Subsec. (k)(5). Pub. L. 112–239 substituted "January 7, 2016" for "the date that is five years after the date of the enactment of this Act".

2011—Subsecs. (j) to (l). Pub. L. 111–383 redesignated subsec. (l) as (j), added subsec. (k), and struck out former subsecs. (j) and (k) which related to annual report and termination of authority, respectively.

2008—Subsec. (l). Pub. L. 110–417 added subsec. (l).

2006—Subsec. (c)(4), (5). Pub. L. 109–364, §213(b)(1), added par. (4) and redesignated former par. (4) as (5). Former par. (5) redesignated (6).

Subsec. (c)(6). Pub. L. 109–364, §213(b)(1)(A), (d), redesignated par. (5) as (6) and amended it generally. Prior to amendment, par. (6) read as follows: "The Under Secretary may establish procedures to ensure that the Challenge Program does not become an avenue for the repetitive submission of proposals that have been previously reviewed and found not to have merit." Former par. (6) redesignated (7).

Subsec. (c)(7). Pub. L. 109–364, §213(b)(1)(A), (g)(1), redesignated par. (6) as (7) and substituted "paragraph (5)" for "paragraph (4)".

Subsec. (d)(1). Pub. L. 109–364, §213(g)(2), substituted "subsection (c)(7)" for "subsection (c)(6)".

Subsec. (d)(2). Pub. L. 109–364, §213(g)(3), substituted "subsection (c)(5)" for "subsection (c)(4)" in introductory provisions.

Subsec. (e)(1). Pub. L. 109–364, §213(g)(4), substituted "subsection (c)(5)" for "subsection (c)(4)".

Subsec. (e)(3). Pub. L. 109–364, §213(b)(2), added par. (3).

Subsecs. (f), (g). Pub. L. 109–364, §213(b)(3), added subsec. (f) and redesignated former subsec. (f) as (g). Former subsec. (g) redesignated (h).

Subsec. (h). Pub. L. 109–364, §213(b)(3)(A), (e), redesignated subsec. (g) as (h), substituted "Conflicts of Interest and Confidentiality" for "Elimination of Conflicts of Interest" in heading, substituted "conflicts of interest and that the identity of any person or activity submitting a challenge proposal is not disclosed outside the Federal Government, prior to contract award, without the consent of the person or activity" for "conflicts of interest", and inserted at end "For purposes of the proceeding sentence, the term 'Federal Government' includes both employees of the Federal Government and employees of Federal Government contractors providing advisory and assistance services as described in part 37 of the Federal Acquisition Regulation." Former subsec. (h) redesignated (i).

Subsec. (i). Pub. L. 109–364, §213(b)(3)(A), redesignated subsec. (h) as (i). Former subsec. (i) redesignated (j).

Subsec. (j). Pub. L. 109–364, §213(b)(3)(A), (4), redesignated subsec. (i) as (j) and substituted "The report shall also include a list of each challenge proposal that was determined by a Panel to satisfy each of the criteria specified in subsection (c)(5), but was not determined under a full review and evaluation to satisfy such criteria, together with a detailed rationale for the Department's determination that such criteria were not satisfied" for "No report is required for a fiscal year in which the Challenge Program is not carried out". Former subsec. (j) redesignated (k).

Subsec. (k). Pub. L. 109–364, §213(b)(3)(A), (f), redesignated subsec. (j) as (k) and substituted "2012" for "2007".

Statutory Notes and Related Subsidiaries

Effective Date of 2021 Amendment

Amendment by section 1701(d)(9) of Pub. L. 117–81 to take effect immediately after the amendments made by title XVIII of Pub. L. 116–283 have taken effect, see section 1701(a)(3) of Pub. L. 117–81, set out in a note preceding section 3001 of this title and note below.

Amendment by section 1701(q)(1), (u)(3)(B) of Pub. L. 117–81 applicable as if included in the enactment of title XVIII of Pub. L. 116–283 as enacted, see section 1701(a)(2) of Pub. L. 117–81, set out in a note preceding section 3001 of this title and Effective Date note below.

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 a note preceding section 3001 of this title.

[§§4063 to 4065. Omitted]

Editorial Notes

Codification

As enacted, Pub. L. 116–283, div. A, title XVIII, §1842(b), Jan. 1, 2021, 134 Stat. 4244, originally transferred sections 2361a, 2358b, and 2374a of this title to sections 4063 to 4065, respectively, to become effective Jan. 1, 2022. Subsequently, Pub. L. 117–81, div. A, title XVII, §1701(q)(1), (u)(3)(B), Dec. 27, 2021, 135 Stat. 2148, 2152, amended section 1842(b) of Pub. L. 116–283, effective as if included therein, so as to eliminate those transfers, thereby omitting these sections before they took effect. Other amendments by Pub. L. 117–81 resulted in transfers of sections 2361a, 2358b, and 2374a to sections 4142, 1766, and 4025 of this title, respectively.

§4066. Global Research Watch Program

(a) Program.—The Under Secretary of Defense for Research and Engineering shall carry out a Global Research Watch program in accordance with this section.

(b) Program Goals.—The goals of the program are as follows:

(1) To monitor and analyze the basic and applied research activities and capabilities of foreign nations and private sector persons in areas of military interest, including allies and competitors.

(2) To provide standards for comparison and comparative analysis of research capabilities of foreign nations and private sector persons in relation to the research capabilities of the United States.

(3) To assist Congress and Department of Defense officials in making investment decisions for research in technical areas where the United States may not be the global leader.

(4) To identify areas where significant opportunities for cooperative research may exist.

(5) To coordinate and promote the international cooperative research and analysis activities of each of the armed forces and Defense Agencies.

(6) To establish and maintain an electronic database on international research capabilities, comparative assessments of capabilities, cooperative research opportunities, and ongoing cooperative programs.

(c) Focus of Program.—The program shall be focused on research and technologies at a technical maturity level equivalent to Department of Defense basic and applied research programs.

(d) Coordination.—(1) The Under Secretary shall coordinate the program with the international cooperation and analysis activities of the military departments and Defense Agencies.

(2) The Secretaries of the military departments and the directors of the Defense Agencies shall provide the Under Secretary of Defense for Research and Engineering such assistance as the Under Secretary may require for purposes of the program.

(3)(A) Funds available to a military department for a fiscal year for monitoring or analyzing the research activities and capabilities of foreign nations may not be obligated or expended until the Under Secretary of Defense for Research and Engineering certifies to the Under Secretary of Defense for Acquisition, Technology, and Logistics that the Secretary of such military department has provided the assistance required under paragraph (2).

(B) The limitation in subparagraph (A) shall not be construed to alter or effect the availability to a military department of funds for intelligence activities.

(e) Classification of Database Information.—Information in electronic databases of the Global Research Watch program shall be maintained in unclassified form and, as determined necessary by the Under Secretary of Defense for Research and Engineering, in classified form in such databases.

(f) Termination.—The requirement to carry out the program under this section shall terminate on September 30, 2035.

(Added Pub. L. 108–136, div. A, title II, §231(a), Nov. 24, 2003, 117 Stat. 1421, §2365; amended Pub. L. 109–364, div. A, title II, §232, Oct. 17, 2006, 120 Stat. 2134; Pub. L. 111–84, div. A, title II, §211, Oct. 28, 2009, 123 Stat. 2225; Pub. L. 111–383, div. A, title IX, §901(j)(3), Jan. 7, 2011, 124 Stat. 4324; Pub. L. 112–239, div. A, title X, §1076(c)(2)(B), Jan. 2, 2013, 126 Stat. 1950; Pub. L. 114–92, div. A, title II, §215, Nov. 25, 2015, 129 Stat. 769; Pub. L. 116–92, div. A, title II, §266, Dec. 20, 2019, 133 Stat. 1301; renumbered §4066, Pub. L. 116–283, div. A, title XVIII, §1842(b), Jan. 1, 2021, 134 Stat. 4244; Pub. L. 117–81, div. A, title XVII, §1701(q)(1), (u)(3)(B), Dec. 27, 2021, 135 Stat. 2148, 2152; Pub. L. 118–159, div. A, title II, §214, Dec. 23, 2024, 138 Stat. 1824.)

Editorial Notes

Amendments

2024—Subsec. (f). Pub. L. 118–159 substituted "September 30, 2035" for "September 30, 2025".

2021—Pub. L. 116–283, §1842(b), as amended by Pub. L. 117–81, §1701(q)(1), (u)(3)(B), renumbered section 2365 of this title as this section.

2019—Subsec. (a). Pub. L. 116–92, §266(1), substituted "Under Secretary of Defense for Research and Engineering" for "Assistant Secretary of Defense for Research and Engineering".

Subsec. (d)(1). Pub. L. 116–92, §266(3), substituted "Under Secretary" for "Assistant Secretary".

Subsec. (d)(2). Pub. L. 116–92, §266(1), (3), substituted "Under Secretary of Defense for Research and Engineering" for "Assistant Secretary of Defense for Research and Engineering" and "Under Secretary" for "Assistant Secretary".

Subsec. (d)(3)(A). Pub. L. 116–92, §266(2), substituted "Under Secretary of Defense for Research and Engineering" for "Assistant Secretary".

Subsec. (e). Pub. L. 116–92, §266(2), substituted "Under Secretary of Defense for Research and Engineering" for "Assistant Secretary".

2015—Subsec. (b)(1), (2). Pub. L. 114–92, §215(1), inserted "and private sector persons" after "foreign nations".

Subsec. (f). Pub. L. 114–92, §215(2), substituted "September 30, 2025" for "September 30, 2015".

2013—Subsec. (a). Pub. L. 112–239, §1076(c)(2)(B)(i), inserted "of Defense for Research and Engineering" after "The Assistant Secretary".

Subsec. (d)(3)(A). Pub. L. 112–239, §1076(c)(2)(B)(ii), substituted "Assistant Secretary" for "Director".

2011—Subsec. (a). Pub. L. 111–383, §901(j)(3)(A), substituted "Assistant Secretary" for "Director of Defense Research and Engineering".

Subsec. (d)(1). Pub. L. 111–383, §901(j)(3)(B), substituted "Assistant Secretary" for "Director".

Subsec. (d)(2). Pub. L. 111–383, §901(j)(3)(C), substituted "Assistant Secretary of Defense for Research and Engineering" for "Director of Defense Research and Engineering" and "Assistant Secretary may" for "Director may".

Subsec. (e). Pub. L. 111–383, §901(j)(3)(D), substituted "Assistant Secretary" for "Director".

2009—Subsec. (d)(3). Pub. L. 111–84, §211(a), added par. (3).

Subsec. (f). Pub. L. 111–84, §211(b), substituted "2015" for "2011".

2006—Subsec. (f). Pub. L. 109–364 substituted "2011" for "2006".

Statutory Notes and Related Subsidiaries

Effective Date of 2021 Amendment

Amendment by Pub. L. 117–81 applicable as if included in the enactment of title XVIII of Pub. L. 116–283 as enacted, see section 1701(a)(2) of Pub. L. 117–81, set out in a note preceding section 3001 of this title and note below.

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 a note preceding section 3001 of this title.

Effective Date of 2011 Amendment

Amendment by Pub. L. 111–383 effective Jan. 1, 2011, see section 901(p) of Pub. L. 111–383, set out as a note under section 131 of this title.

§4067. Technology protection features activities

(a) Activities.—The Secretary of Defense shall carry out activities to develop and incorporate technology protection features in a designated system to increase ally and partner military capability or improve coalition interoperability.

(b) Cost-sharing.—(1) Any contract for the design or development of a system resulting from activities under subsection (a) for the purpose of enhancing or enabling the exportability of the system, either for the development of program protection strategies for the system or the design and incorporation of exportability features into the system, shall include a cost-sharing provision that requires the contractor to bear half of the cost of such activities, or such other portion of such cost as the Secretary considers appropriate upon showing of good cause.

(2) Any contract for the design or development of an exportability feature of a system resulting from activities under subsection (a) for the purpose of enhancing or enabling the exportability of the system shall include a cost-sharing provision that requires the contractor to bear half of the cost of such activities, or such other portion of such cost as the Secretary considers appropriate upon showing of good cause.

(3) The Secretary may deem the portion of the costs of the contractor described in paragraph (1) or (2) with respect to a designated system or exportability feature as allowable independent research and development costs under the regulations issued under section 3762 of this title if—

(A) in the case of a designated system, the designated system receives Milestone B approval; and

(B) the Secretary determines that doing so would further the purposes of this section.

(c) Definitions.—In this section:

(1) The term "designated system" means any system (including a major system, as defined in section 3041 of title 10, United States Code) that the Under Secretary of Defense for Acquisition and Sustainment designates for purposes of this section.

(2) The term "independent research and development costs" has the meaning given the term in section 31.205-18 of title 48, Code of Federal Regulations.

(3) The term "Milestone B approval" has the meaning given the term in section 4172(e)(7) of this title.

(4) The term "technology protection features" means the technical modifications necessary to protect critical program information, including anti-tamper technologies and other systems engineering activities intended to prevent or delay exploitation of critical technologies in a designated system.

(Added Pub. L. 115–232, div. A, title II, §223(a), Aug. 13, 2018, 132 Stat. 1682, §2357; renumbered §4067 and amended Pub. L. 116–283, div. A, title XVIII, §§1841(c), 1842(b), 1883(b)(2), Jan. 1, 2021, 134 Stat. 4243, 4244, 4294; Pub. L. 117–81, div. A, title VIII, §831(a), title XVII, §1701(u)(2)(D), (3)(B), Dec. 27, 2021, 135 Stat. 1832, 2151, 2152; Pub. L. 118–159, div. A, title II, §215, Dec. 23, 2024, 138 Stat. 1824.)

Editorial Notes

Amendments

2024—Subsec. (a). Pub. L. 118–159, §215(a), substituted "to increase ally and partner military capability or improve coalition interoperability" for "during the research and development phase of such system".

Subsec. (b)(2). Pub. L. 118–159, §215(b)(2), added par. (2). Former par. (2) redesignated (3).

Subsec. (b)(3). Pub. L. 118–159, §215(b)(1), (3)(A), (B), redesignated par. (2) as (3) and inserted "or (2)" after "paragraph (1)" and "or exportability feature" after "with respect to a designated system" in introductory provisions.

Subsec. (b)(3)(A). Pub. L. 118–159, §215(b)(3)(C), inserted "in the case of a designated system," before "the".

2021—Pub. L. 116–283, §1842(b), as amended by Pub. L. 117–81, §1701(u)(3)(B), renumbered section 2357 of this title as this section.

Pub. L. 116–283, §1841(c), which directed the renumbering of section 2357 of this title as section 4009 instead of this section, was amended generally by Pub. L. 117–81, §1701(u)(2)(D), effective as if included therein, so that such transfer was no longer directed.

Subsec. (b). Pub. L. 117–81, §831(a)(1), designated existing provisions as par. (1) and added par. (2).

Subsec. (b)(2). Pub. L. 116–283, §1883(b)(2), substituted "section 3762" for "section 2372" in introductory provisions.

Subsec. (c)(1). Pub. L. 116–283, §1883(b)(2), substituted "section 3041" for "section 2302(5)".

Subsec. (c)(2). Pub. L. 117–81, §831(a)(2)(B), added par. (2). Former par. (2) redesignated (4).

Subsec. (c)(3). Pub. L. 116–283, §1883(b)(2), substituted "section 4172(e)(7)" for "section 2366(e)(7)".

Pub. L. 117–81, §831(a)(2)(B), added par. (3).

Subsec. (c)(4). Pub. L. 117–81, §831(a)(2)(A), redesignated par. (2) as (4).

Statutory Notes and Related Subsidiaries

Effective Date of 2021 Amendment

Amendment by Pub. L. 117–81 applicable as if included in the enactment of title XVIII of Pub. L. 116–283 as enacted, see section 1701(a)(2) of Pub. L. 117–81, set out in a note preceding section 3001 of this title and note below.

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 a note preceding section 3001 of this title.

Conforming Regulations

Pub. L. 117–81, div. A, title VIII, §831(b), Dec. 27, 2021, 135 Stat. 1832, provided that: "Not later than 120 days after the date of the enactment of this Act [Dec. 27, 2021], the Secretary of Defense shall revise the Department of Defense Supplement to the Federal Acquisition Regulation to conform with section 2357 of title 10, United States Code [now 10 U.S.C. 4067], as amended by subsection (a)."

Updated Guidance on Planning for Exportability Features for Future Programs

Pub. L. 118–31, div. A, title VIII, §810, Dec. 22, 2023, 137 Stat. 321, as amended by Pub. L. 118–159, div. A, title VIII, §804(c)(5), Dec. 23, 2024, 138 Stat. 1969, provided that:

"(a) Program Guidance on Planning for Exportability Features.—Not later than one year after the date of the enactment of this Act [Dec. 22, 2023], the Under Secretary of Defense for Acquisition and Sustainment shall ensure that the program guidance for major defense acquisition programs (as defined in section 4201 of title 10, United States Code) and for acquisition programs and projects that are carried out using the rapid fielding or rapid prototyping acquisition pathway under section 3602 of title 10, United States Code[,] is revised to integrate planning for exportability features under section 4067 of title 10, United States Code, including—

"(1) for major defense acquisition programs, an assessment of such programs to identify potential exportability needs; and

"(2) for technologies under an acquisition program or project carried out using the rapid fielding or rapid prototyping acquisition pathway that are transitioned to a major capability acquisition program, an assessment of potential exportability needs of such technologies not later than one year after the date of such transition.

"(b) Revision of Guidance for Program Protection Plans.—Not later than three years after the date of the enactment of this Act, the Under Secretary shall revise guidance for program protection plans to integrate a requirement to determine exportability for the programs covered by such plans."

SUBCHAPTER II—PERSONNEL

Editorial Notes

Amendments

2021—Pub. L. 117–81, div. A, title XVII, §1701(u)(3)(A), Dec. 27, 2021, 135 Stat. 2152, amended Pub. L. 116–283, div. A, title XVIII, §1842(a), Jan. 1, 2021, 134 Stat. 4244, which added this chapter, by adding subchapter heading. Heading was editorially conformed to the style used in this title.

Statutory Notes and Related Subsidiaries

Pilot Program on Dynamic Shaping of the Workforce To Improve the Technical Skills and Expertise at Certain Department of Defense Laboratories

Pub. L. 114–92, div. A, title XI, §1109, Nov. 25, 2015, 129 Stat. 1028, as amended by Pub. L. 115–232, div. A, title XI, §1112(b), Aug. 13, 2018, 132 Stat. 2012; Pub. L. 117–81, div. A, title II, §215(d)(3), Dec. 27, 2021, 135 Stat. 1593; Pub. L. 117–263, div. A, title XI, §1110, Dec. 23, 2022, 136 Stat. 2820; Pub. L. 118–159, div. A, title XI, §1113, Dec. 23, 2024, 138 Stat. 2090, provided that:

"(a) Pilot Program Required.—The Secretary of Defense shall establish a pilot program to utilize the authorities specified in subsection (b) at the Department of Defense laboratories specified in subsection (c) to provide the directors of such laboratories the authority to dynamically shape the mix of technical skills and expertise in the workforces of such laboratories in order to achieve one or more of the following:

"(1) To meet organizational and Department-designated missions in the most cost-effective and efficient manner.

"(2) To upgrade and enhance the scientific quality of the workforces of such laboratories.

"(3) To shape such workforces to better respond to such missions.

"(4) To reduce the average unit cost of such workforces.

"(b) Workforce Shaping Authorities.—The authorities that shall be available for use by the director of a Department of Defense laboratory under the pilot program are the following:

"(1) Flexible length and renewable term technical appointments.—

"(A) In general.—Subject to the provisions of this paragraph, authority otherwise available to the director by law (and within the available budgetary resources of the laboratory) to make appointments as follows:

"(i) Appointment of qualified scientific and technical personnel who are not current Department of Defense civilian employees into any scientific or technical position in the laboratory for a period of more than one year but not more than six years.

"(ii) Appointment of qualified scientific and technical personnel who are Department civilian employees in term appointments into any scientific or technical position in the laboratory for a period of more than one year but not more than six years.

"(B) Benefits.—Personnel appointed under this paragraph shall be provided with benefits comparable to those provided to similar employees at the laboratory concerned, including professional development opportunities, eligibility for all laboratory awards programs, and designation as 'status applicants' for the purposes of eligibility for positions in the Federal service.

"(C) Extension of appointments.—The appointment of any individual under this paragraph may be extended without limit in up to six year increments at any time during any term of service under such conditions as the director concerned shall establish for purposes of this paragraph.

"(2) Reemployment of annuitants.—Authorities to authorize the director of any science and technology reinvention laboratory (in this section referred to as 'STRL') to reemploy annuitants in accordance with section 9902(g) of title 5, United States Code, except that as a condition for reemployment the director may authorize the deduction from the pay of any annuitant so reemployed of an amount up to the amount of the annuity otherwise payable to such annuitant allocable to the period of actual employment of such annuitant, which amount shall be determined in a manner specified by the director for purposes of this paragraph to ensure the most cost effective execution of designated missions by the laboratory while retaining critical technical skills.

"(3) Early retirement incentives.—Authorities to authorize the director of any STRL to authorize voluntary early retirement of employees in accordance with section 8336 or 8414 of title 5, United States Code, without regard to section 8336(d)(2)(D) or 8414(b)(1)(B) of such title, and with employees so separated voluntarily from service.

"(4) Separation incentive pay.—Authorities to authorize the director of any STRL to pay voluntary separation pay to employees in accordance with section 3522 of title 5, United States Code, and with—

"(A) employees so separated voluntarily from service under regulations prescribed by the Secretary of Defense for purposes of the pilot program; and

"(B) payments to employees so separated authorized under section 3523 of such title without regard to—

"(i) the plan otherwise required by section 3522 of such title; and

"(ii) paragraph (1) or (3) of section 3523(b) of such title.

"(c) Laboratories.—The Department of Defense laboratories specified in this subsection are the laboratories designated under subsections (a) and (b) of section 4121 of title 10, United States Code.

"(d) Expiration.—

"(1) In general.—The authority in this section shall expire on December 31, 2027.

"(2) Continuation of authorities exercised before termination.—The expiration in paragraph (1) shall not be construed to effect the continuation after the date specified in paragraph (1) of any term of employment or other benefit authorized under this section before that date in accordance with the terms of such authorization."

Pilot Program on Assignment to Defense Advanced Research Projects Agency of Private Sector Personnel With Critical Research and Development Expertise

Pub. L. 113–291, div. A, title II, §232, Dec. 19, 2014, 128 Stat. 3332, as amended by Pub. L. 115–91, div. A, title X, §1051(t)(1), Dec. 12, 2017, 131 Stat. 1566; Pub. L. 117–286, §4(c)(20), Dec. 27, 2022, 136 Stat. 4356, provided that:

"(a) Pilot Program Authorized.—In accordance with the provisions of this section, the Director of the Defense Advanced Research Projects Agency may carry out a pilot program to assess the feasibility and advisability of temporarily assigning covered individuals with significant technical expertise in research and development areas of critical importance to defense missions to the Defense Advanced Research Projects Agency to lead research or development projects of the Agency.

"(b) Assignment of Covered Individuals.—

"(1) Number of individuals assigned.—Under the pilot program, the Director may assign covered individuals to the Agency as described in subsection (a), but may not have more than five covered individuals so assigned at any given time.

"(2) Period of assignment.—

"(A) Except as provided in subparagraph (B), the Director may, under the pilot program, assign a covered individual described in subsection (a) to lead research and development projects of the Agency for a period of not more than two years.

"(B) The Director may extend the assignment of a covered individual for one additional period of not more than two years as the Director considers appropriate.

"(3) Application of certain provisions of law.—

"(A) Except as otherwise provided in this section, the Director shall carry out the pilot program in accordance with the provisions of subchapter VI of chapter 33 of title 5, United States Code, except that, for purposes of the pilot program, the term 'other organization', as used in such subchapter, shall be deemed to include a covered entity.

"(B) A covered individual employed by a covered entity who is assigned to the Agency under the pilot program is deemed to be an employee of the Department of Defense for purposes of the following provisions of law:

"(i) Chapter 73 of title 5, United States Code.

"(ii) Sections 201, 203, 205, 207, 208, 209, 603, 606, 607, 643, 654, 1905, and 1913 of title 18, United States Code.

"(iii) Sections 1343, 1344, and 1349(b) of title 31, United States Code.

"(iv) Chapter 171 of title 28, United States Code (commonly known as the 'Federal Tort Claims Act'), and any other Federal tort liability statute.

"(v) Chapter 131 of title 5, United States Code.

"(vi) Section 1043 of the Internal Revenue Code of 1986 [26 U.S.C. 1043].

"(vii) Chapter 21 of title 41, United States Code.

"(4) Pay and supervision.—A covered individual employed by a covered entity who is assigned to the Agency under the pilot program—

"(A) may continue to receive pay and benefits from such covered entity with or without reimbursement by the Agency;

"(B) is not entitled to pay from the Agency; and

"(C) shall be subject to supervision by the Director in all duties performed for the Agency under the pilot program.

"(c) Conflicts of Interest.—

"(1) Practices and procedures required.—The Director shall develop practices and procedures to manage conflicts of interest and the appearance of conflicts of interest that could arise through assignments under the pilot program.

"(2) Elements.—The practices and procedures required by paragraph (1) shall include, at a minimum, the requirement that each covered individual assigned to the Agency under the pilot program shall sign an agreement that provides for the following:

"(A) The nondisclosure of any trade secrets or other nonpublic or proprietary information which is of commercial value to the covered entity from which such covered individual is assigned.

"(B) The assignment of rights to intellectual property developed in the course of any research or development project under the pilot program—

"(i) to the Agency and its contracting partners in accordance with applicable provisions of law regarding intellectual property rights; and

"(ii) not to the covered individual or the covered entity from which such covered individual is assigned.

"(C) Such additional measures as the Director considers necessary to carry out the program in accordance with Federal law.

"(d) Prohibition on Charges by Covered Entities.—A covered entity may not charge the Federal Government, as direct or indirect costs under a Federal contract, the costs of pay or benefits paid by the covered entity to a covered individual assigned to the Agency under the pilot program.

"(e) Termination of Authority.—The authority provided in this section shall expire on September 30, 2025, except that any covered individual assigned to the Agency under the pilot program shall continue in such assignment until the terms of such assignment have been satisfied.

"(f) Definitions.—In this section:

"(1) The term 'covered individual' means any individual who is employed by a covered entity.

"(2) The term 'covered entity' means any non-Federal, nongovernmental entity that, as of the date on which a covered individual employed by the entity is assigned to the Agency under the pilot program, is a nontraditional defense contractor (as defined in section 2302 of title 10, United States Code [see 10 U.S.C. 3014])."

§4091. Authorities for certain positions at science and technology reinvention laboratories

(a) Authority to Make Direct Appointments.—

(1) Candidates for scientific and engineering positions at science and technology reinvention laboratories.—The director of any Science and Technology Reinvention Laboratory (hereinafter in this section referred to as an "STRL") may appoint qualified candidates possessing a bachelor's or advanced degree to positions described in paragraph (1) of subsection (b) as an employee in a laboratory described in that paragraph without regard to the provisions of subchapter I of chapter 33 of title 5 (other than sections 3303 and 3328 of such title).

(2) Veteran candidates for similar positions at research and engineering facilities.—The director of any STRL may appoint qualified veteran candidates to positions described in paragraph (2) of subsection (b) as an employee at a laboratory, agency, or organization specified in that paragraph without regard to the provisions of subchapter I of chapter 33 of title 5.

(3) Students enrolled in scientific and engineering programs.—The director of any STRL may appoint qualified candidates enrolled in a program of undergraduate or graduate instruction leading to a bachelor's or an advanced degree in a scientific, technical, engineering or mathematical course of study at an institution of higher education (as that term is defined in sections 101 and 102 of the Higher Education Act of 1965 (20 U.S.C. 1001, 1002)) to positions described in paragraph (3) of subsection (b) as an employee in a laboratory described in that paragraph without regard to the provisions of subchapter I of chapter 33 of title 5 (other than sections 3303 and 3328 of such title).

(4) Noncompetitive conversion of appointments.—With respect to any student appointed by the director of an STRL under paragraph (3) to a temporary or term appointment, upon graduation from the applicable institution of higher education (as defined in such paragraph), the director may noncompetitively convert such student to another temporary appointment or to a term or permanent appointment within the STRL without regard to the provisions of subchapter I of chapter 33 of title 5 (other than sections 3303 and 3328 of such title), provided the student meets all eligibility and Office of Personnel Management qualification requirements for the position.

(b) Covered Positions.—

(1) Candidates for scientific and engineering positions.—The positions described in this paragraph are scientific and engineering positions that may be temporary, term, or permanent in any laboratory designated by section 4121(b) of this title as a Department of Defense science and technology reinvention laboratory.

(2) Qualified veteran candidates.—The positions described in this paragraph are scientific, technical, engineering, and mathematics positions, including technicians, in the following:

(A) Any laboratory referred to in paragraph (1).

(B) Any other Department of Defense research and engineering agency or organization designated by the Secretary for purposes of subsection (a)(2).

(3) Candidates enrolled in scientific and engineering programs.—The positions described in this paragraph are scientific and engineering positions that may be temporary or term in any laboratory designated by section 4121(b) of this title as a Department of Defense science and technology reinvention laboratory.

(c) Limitation on Number of Appointments Allowable in a Fiscal Year.—The authority under subsection (a) may not, in any fiscal year and with respect to any laboratory, agency, or organization described in subsection (b), be exercised with respect to a number of candidates greater than the following:

(1) In the case of a laboratory described in subsection (b)(1), with respect to appointment authority under subsection (a)(1), the number equal to 11 percent of the total number of scientific and engineering positions in such laboratory that are filled as of the close of the preceding fiscal year.

(2) In the case of a laboratory, agency, or organization described in subsection (b)(2), with respect to appointment authority under subsection (a)(2), the number equal to 3 percent of the total number of scientific, technical, engineering, mathematics, and technician positions in such laboratory, agency, or organization that are filled as of the close of the preceding fiscal year.

(3) In the case of a laboratory described in subsection (b)(3), with respect to appointment authority under subsection (a)(3), the number equal to 10 percent of the total number of scientific and engineering positions in such laboratory that are filled as of the close of the preceding fiscal year.

(d) Senior Scientific Technical Managers.—

(1) Establishment.—There is hereby established in each STRL, each facility of the Major Range and Test Facility Base, and the Defense Test Resource Management Center a category of senior professional scientific and technical positions, the incumbents of which shall be designated as "senior scientific technical managers" and which shall be positions classified above GS–15 of the General Schedule, notwithstanding section 5108(a) of title 5. The primary functions of such positions shall be—

(A) to engage in research and development in the physical, biological, medical, or engineering sciences, or another field closely related to the mission of such STRL, of such facility of the Major Range and Test Facility Base, or the Defense Test Resource Management Center; and

(B) to carry out technical supervisory responsibilities.

(2) Appointments.—(A) The laboratory positions described in paragraph (1) may be filled, and shall be managed, by the director of the STRL involved, under criteria established pursuant to section 4121(a) of this title, relating to personnel demonstration projects at laboratories of the Department of Defense, except that the director of the laboratory involved shall determine the number of such positions at such laboratory, not to exceed 2 percent of the number of scientists and engineers employed at such laboratory as of the close of the last fiscal year before the fiscal year in which any appointments subject to that numerical limitation are made.

(B) The test and evaluation positions described in paragraph (1) may be filled, and shall be managed, by the director of the Major Range and Test Facility Base, in the case of a position at a facility of the Major Range and Test Facility Base, and the director of the Defense Test Resource Management Center, in the case of a position at such center, under criteria established pursuant to section 4121(a) of this title, relating to personnel demonstration projects at laboratories of the Department of Defense, except that the director involved shall determine the number of such positions at each facility of the Major Range and Test Facility Base and the Defense Test Resource Management Center, not to exceed two percent of the number of scientists and engineers, but at least one position, employed at the Major Range and Test Facility Base or the Defense Test Resource Management Center, as the case may be, as of the close of the last fiscal year before the fiscal year in which any appointments subject to those numerical limitations are made.

(e) Exclusion From Personnel Limitations.—

(1) In general.—The director of an STRL shall manage the workforce strength, structure, positions, and compensation of such STRL—

(A) without regard to any limitation on appointments, positions, or funding with respect to such STRL, subject to subparagraph (B); and

(B) in a manner consistent with the budget available with respect to such STRL.

(2) Exceptions.—Paragraph (1) shall not apply to Senior Executive Service positions (as defined in section 3132(a) of title 5) or scientific and professional positions authorized under section 3104 of such title.

(f) Definitions.—In this section:

(1) The term "Defense Test Resource Management Center" means the Department of Defense Test Resource Management Center established under section 4173 of this title.

(2) The term "employee" has the meaning given that term in section 2105 of title 5.

(3) The term "Major Range and Test Facility Base" means the test and evaluation facilities and resources that are designated by the Secretary of Defense as facilities and resources comprising the Major Range and Test Facility Base.

(4) The term "veteran" has the meaning given that term in section 101 of title 38.

(Added Pub. L. 114–328, div. A, title XI, §1122(a)(1), Dec. 23, 2016, 130 Stat. 2453, §2358a; amended Pub. L. 115–91, div. A, title XI, §1111, Dec. 12, 2017, 131 Stat. 1636; Pub. L. 115–232, div. A, title XI, §1112(a), Aug. 13, 2018, 132 Stat. 2012; renumbered §4091, Pub. L. 116–283, div. A, title XVIII, §1843(a), as added Pub. L. 117–81, div. A, title XVII, §1701(u)(4)(A), Dec. 27, 2021, 135 Stat. 2153; Pub. L. 116–283, div. A, title XVIII, §§1843(b)(2), 1845(c)(5), Jan. 1, 2021, 134 Stat. 4245, 4247; Pub. L. 117–81, div. A, title II, §§212(a), 215(d)(13), Dec. 27, 2021, 135 Stat. 1588, 1595; Pub. L. 118–31, div. A, title XI, §1103, Dec. 22, 2023, 137 Stat. 427.)

Editorial Notes

Amendments

2023—Subsec. (a)(1). Pub. L. 118–31, §1103(1), substituted "bachelor's or advanced degree" for "bachelor's degree".

Subsec. (c). Pub. L. 118–31, §1103(2)(A), (B), (D), substituted "Fiscal Year" for "Calendar Year" in heading, "fiscal year" for "calendar year" in introductory provisions, and "the preceding fiscal year" for "the fiscal year last ending before the start of such calendar year" in pars. (1) to (3).

Subsec. (c)(1). Pub. L. 118–31, §1103(2)(C), substituted "11 percent" for "6 percent".

Subsecs. (f), (g). Pub. L. 118–31, §1103(3), (4), redesignated subsec. (g) as (f) and struck out former subsec. (f) which related to direct hire authority at personnel demonstration laboratories for advanced degree holders.

2021—Pub. L. 116–283, §1843(a), as added by Pub. L. 117–81, §1701(u)(4)(A), renumbered section 2358a of this title as this section.

Pub. L. 116–283, §1843(b)(2), which directed the renumbering of section 2358a of this title as section 4111 instead of this section, was repealed by Pub. L. 117–81, §1701(u)(4)(A), effective as if included therein, so that such renumbering was no longer directed.

Subsec. (b)(1), (3). Pub. L. 117–81, §215(d)(13)(A), substituted "designated by section 4121(b) of this title" for "designated by section 1105(a) of the National Defense Authorization Act for Fiscal Year 2010 (Public Law 111–84; 10 U.S.C. 2358 note)".

Subsec. (d)(2)(A), (B). Pub. L. 117–81, §215(d)(13)(B), substituted "pursuant to section 4121(a) of this title" for "pursuant to section 342(b) of the National Defense Authorization Act for Fiscal Year 1995 (Public Law 103–337; 10 U.S.C. 2358 note)".

Subsec. (f). Pub. L. 117–81, §212(a)(2), added subsec. (f). Former subsec. (f) redesignated (g).

Subsec. (g). Pub. L. 117–81, §212(a)(1), redesignated subsec. (f) as (g).

Subsec. (g)(1). Pub. L. 116–283, §1845(c)(5), which directed amendment of subsec. (f)(1) of this section, as transferred and redesignated by section 503(b)(2) of Pub. L. 116–283, by substituting "section 4173" for "section 196", was executed to subsec. (g)(1) of this section, as transferred and redesignated by section 1843(a) of Pub. L. 116–283, to reflect the probable intent of Congress and the amendments by Pub. L. 117–81, §§212(a)(1), 1701(u)(4)(A). See notes above.

2018—Subsec. (a)(4). Pub. L. 115–232 substituted "of appointments" for "to permanent appointment" in heading and "to another temporary appointment or to a term or permanent appointment" for "to a permanent appointment" in text.

2017—Subsec. (d)(1). Pub. L. 115–91, §1111(1)(A)(i), inserted ", each facility of the Major Range and Test Facility Base, and the Defense Test Resource Management Center" after "each STRL" in introductory provisions.

Subsec. (d)(1)(A). Pub. L. 115–91, §1111(1)(A)(ii), which directed insertion of ", of such facility of the Major Range and Test Facility Base, or the Defense Test Resource Management Center", was executed by making the insertion after "such STRL", to reflect the probable intent of Congress.

Subsec. (d)(2). Pub. L. 115–91, §1111(1)(B), designated existing provisions as subpar. (A), substituted "The laboratory positions" for "The positions", and added subpar. (B).

Subsec. (f). Pub. L. 115–91, §1111(2), added pars. (1) and (3) and redesignated former pars. (1) and (2) as (2) and (4), respectively.

Statutory Notes and Related Subsidiaries

Effective Date of 2021 Amendment

Pub. L. 117–81, div. A, title II, §215(e), Dec. 27, 2021, 135 Stat. 1595, provided that: "This section [enacting section 4121 of this title, amending this section and sections 4094 and 4124 of this title, amending provisions set out as notes preceding section 1580 of this title and under sections 2223a, 2358, 4001, and 4121 of this title, and repealing provisions set out as notes under section 2358 of this title] and the amendments and repeals made by this section shall take effect immediately after the effective date of the amendments made by title XVIII of the William M. (Mac) Thornberry National Defense Authorization Act for Fiscal Year 2021 (Public Law 116–283) [Jan. 1, 2022]."

Amendment by section 1701(u)(4)(A) of Pub. L. 117–81 applicable as if included in the enactment of title XVIII of Pub. L. 116–283 as enacted, see section 1701(a)(2) of Pub. L. 117–81, set out in a note preceding section 3001 of this title and note below.

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 a note preceding section 3001 of this title.

§4092. Personnel management authority to attract experts in science, engineering, and certain other disciplines

(a) Programs Authorized.—

(1) Laboratories of the military departments.—The Secretary of Defense may carry out a program of personnel management authority provided in subsection (b) in order to facilitate recruitment of eminent experts in science or engineering for such laboratories of the military departments as the Secretary shall designate for purposes of the program for research and development projects of such laboratories.

(2) DARPA.—The Director of the Defense Advanced Research Projects Agency may carry out a program of personnel management authority provided in subsection (b) in order to facilitate recruitment of eminent experts in science or engineering for research and development projects and to enhance the administration and management of the Agency.

(3) DOTE.—The Director of the Office of Operational Test and Evaluation may carry out a program of personnel management authority provided in subsection (b) in order to facilitate recruitment of eminent experts in science or engineering to support operational test and evaluation missions of the Office.

(4) Strategic capabilities office.—The Director of the Strategic Capabilities Office may carry out a program of personnel management authority provided in subsection (b) in order to facilitate recruitment of eminent experts in science or engineering for the Office.

(5) DIU.—The Director of the Defense Innovation Unit may carry out a program of personnel management authority provided in subsection (b) in order to facilitate recruitment of eminent experts in science or engineering for the Unit.

(6) Joint artificial intelligence.—The official designated under section 238(b) of the John S. McCain National Defense Authorization Act for Fiscal Year 2019 (Public Law 115–232) may carry out a program of personnel management authority provided in subsection (b) in order to facilitate recruitment of eminent experts in science or engineering to support the activities of such official under section 238 of such Act. The authority to carry out the program under this paragraph shall terminate on December 31, 2024.

(7) NGA.—The Director of the National Geospatial-Intelligence Agency may carry out a program of personnel management authority provided in subsection (b) in order to facilitate recruitment of eminent experts in science or engineering for research and development projects and to enhance the administration and management of the Agency.

(8) SDA.—The Director of the Space Development Agency may carry out a program of personnel management authority provided in subsection (b) in order to facilitate recruitment of eminent experts in science or engineering for research and development projects and to enhance the administration and management of the Agency. The authority to carry out the program under this paragraph shall terminate on December 31, 2030.

(9) United states cyber command.—The Commander of United States Cyber Command may carry out a program of personnel management authority provided in subsection (b) in order to facilitate the recruitment of eminent experts in computer science, data science, engineering, mathematics, and computer network exploitation within the headquarters of United States Cyber Command and the Cyber National Mission Force.

(10) Office of the under secretary of defense for research and engineering.—The Under Secretary of Defense for Research and Engineering may carry out a program of personnel management authority provided in subsection (b) in order to facilitate recruitment of eminent experts in science or engineering for the Office of the Under Secretary.

(11) Office of strategic capital.—The Director of the Office of Strategic Capital may carry out a program of personnel management authority provided in subsection (b) in order to facilitate recruitment of eminent experts in finance and investment for the Office.

(b) Personnel Management Authority.—Under a program under subsection (a), the official responsible for administration of the program may—

(1) without regard to any provision of title 5 governing the appointment of employees in the civil service—

(A) in the case of the laboratories of the military departments designated pursuant to subsection (a)(1), appoint scientists and engineers to a total of not more than 40 scientific and engineering positions in such laboratories;

(B) in the case of the Defense Advanced Research Projects Agency, appoint individuals to a total of not more than 140 positions in the Agency;

(C) in the case of the Office of Operational Test and Evaluation, appoint scientists and engineers to a total of not more than 10 scientific and engineering positions in the Office;

(D) in the case of the Strategic Capabilities Office, appoint scientists and engineers to a total of not more than 20 scientific and engineering positions in the Office, of which not more than 5 such positions may be positions of administration or management of the Office;

(E) in the case of the Defense Innovation Unit, appoint scientists and engineers to a total of not more than 35 scientific and engineering positions in the Unit, of which not more than 5 such positions may be positions of administration or management of the Unit;

(F) in the case of the office of the official designated under section 238(b) of the John S. McCain National Defense Authorization Act for Fiscal Year 2019 (Public Law 115–232), appoint scientists and engineers to a total of not more than 5 scientific and engineering positions in support of the activities of such official under section 238 of such Act;

(G) in the case of the National Geospatial-Intelligence Agency, appoint individuals to a total of not more than 7 positions in the Agency, of which not more than 2 such positions may be positions of administration or management in the Agency;

(H) in the case of the Space Development Agency, appoint individuals to a total of not more than 25 positions in the Agency, of which not more than 5 such positions may be positions of administration or management of the Agency;

(I) in the case of United States Cyber Command, appoint computer scientists, data scientists, engineers, mathematicians, and computer network exploitation specialists to a total of not more than 10 scientific and engineering positions in the Command;

(J) in the case of the Office of the Under Secretary of Defense for Research and Engineering, appoint scientists and engineers to a total of not more than 10 scientific and engineering positions in the Office; and

(K) in the case of the Office of Strategic Capital, appoint individuals to a total of not more than 30 positions in the Office;

(2) notwithstanding any provision of title 5 governing the rates of pay or classification of employees in the executive branch, prescribe the rates of basic pay for positions to which employees are appointed under paragraph (1)—

(A) in the case of employees appointed pursuant to subparagraphs (B), (D), (E), (H), and (K) of paragraph (1), at a rate to be determined by the head of the organization concerned up to 150 percent of the total annual compensation payable to the Vice President under section 104 of title 3;

(B) in the case of employees appointed pursuant to paragraph (1)(G), to any of 2 positions of administration or management designated by the Director of the National Geospatial-Intelligence Agency for purposes of this subparagraph; and

(C) in the case of any other employee appointed pursuant to paragraph (1), at rates not in excess of the maximum rate of basic pay authorized for senior-level positions under section 5376 of title 5;

(3) pay any employee appointed under paragraph (1), other than an employee appointed to a position designated as described in paragraph (2)(A), payments in addition to basic pay within the limit applicable to the employee under subsection (d); and

(4) during any fiscal year—

(A) pay up to 15 individuals newly appointed pursuant to paragraph (1)(B) the travel, transportation, and relocation expenses and services described under sections 5724, 5724a, and 5724c of title 5; and

(B) pay up to 15 individuals previously appointed pursuant to such paragraph, upon separation, the travel, transportation, and relocation expenses and services described under such sections (as applicable).

(c) Limitation on Term of Appointment.—

(1) In general.—Except as provided in paragraph (2), the service of an employee under an appointment under subsection (b)(1) may not exceed four years.

(2) Extension.—The official responsible for the administration of a program under subsection (a) may, in the case of a particular employee under the program, extend the period to which service is limited under paragraph (1) by up to two years if the official determines that such action is necessary to promote the efficiency of a laboratory of a military department, the Defense Advanced Research Projects Agency, the Office of Operational Test and Evaluation, the Strategic Capabilities Office, the Defense Innovation Unit, the activities under section 238 of the John S. McCain National Defense Authorization Act for Fiscal Year 2019 (Public Law 115–232), the Space Development Agency, or the National Geospatial-Intelligence Agency, as applicable.

(d) Maximum Amount of Additional Payments Payable.—Notwithstanding any other provision of this section or section 5307 of title 5, no additional payments may be paid to an employee under subsection (b)(3) in any calendar year if, or to the extent that, the employee's total annual compensation in such calendar year will exceed the maximum amount of total annual compensation payable at the salary set in accordance with section 104 of title 3.

(Added Pub. L. 114–328, div. A, title XI, §1121(a)(1), Dec. 23, 2016, 130 Stat. 2451, §1599h; amended Pub. L. 115–232, div. A, title XI, §1111, Aug. 13, 2018, 132 Stat. 2011; Pub. L. 116–92, div. A, title II, §212, title XI, §1101, Dec. 20, 2019, 133 Stat. 1255, 1595; Pub. L. 116–260, div. W, title IV, §402, Dec. 27, 2020, 134 Stat. 2377; Pub. L. 116–283, div. A, title XVI, §1602, title XVII, §1708(a), Jan. 1, 2021, 134 Stat. 4042, 4085; renumbered §4092, Pub. L. 116–283, div. A, title XVIII, §1843(a), as added Pub. L. 117–81, div. A, title XVII, §1701(u)(4)(A), Dec. 27, 2021, 135 Stat. 2153; Pub. L. 117–81, div. A, title X, §1081(a)(21), title XI, §1107, Dec. 27, 2021, 135 Stat. 1920, 1951; Pub. L. 117–103, div. X, title IV, §412, Mar. 15, 2022, 136 Stat. 976; Pub. L. 117–263, div. A, title II, §§212(a), 213, title XI, §1109, Dec. 23, 2022, 136 Stat. 2466, 2471, 2819; Pub. L. 118–31, div. A, title II, §213, title XVIII, §1801(a)(33), Dec. 22, 2023, 137 Stat. 183, 685; Pub. L. 118–159, div. A, title II, §216, Dec. 23, 2024, 138 Stat. 1825.)

Editorial Notes

References in Text

Section 238 of the John S. McCain National Defense Authorization Act for Fiscal Year 2019, referred to in subsecs. (a)(6), (b)(1)(F), and (c)(2), is section 238 of Pub. L. 115–232, which is set out as a note preceding section 4061 of this title.

Amendments

2024—Pub. L. 118–159, §216(1), substituted "science, engineering, and certain other disciplines" for "science and engineering" in section catchline.

Subsec. (a)(11). Pub. L. 118–159, §216(2), added par. (11).

Subsec. (b)(1)(D). Pub. L. 118–159, §216(3)(A)(i), substituted "20 scientific and engineering positions in the Office, of which not more than 5 such positions may be positions of administration or management of the Office" for "5 scientific and engineering positions in the Office".

Subsec. (b)(1)(E). Pub. L. 118–159, §216(3)(A)(ii), substituted "35 scientific and engineering positions in the Unit, of which not more than 5 such positions may be positions of administration or management of the Unit" for "5 scientific and engineering positions in the Unit".

Subsec. (b)(1)(H). Pub. L. 118–159, §216(3)(A)(iii), substituted "25" for "15".

Subsec. (b)(1)(K). Pub. L. 118–159, §216(3)(A)(iv)–(vi), added subpar. (K).

Subsec. (b)(2)(A). Pub. L. 118–159, §216(3)(B), amended subpar. (A) generally. Prior to amendment, subpar. (A) read as follows: "in the case of employees appointed pursuant to subparagraphs (B) and (H) of paragraph (1)—

"(i) to any of the 5 positions designated by the Director of the Defense Advanced Research Projects Agency and any of the 5 positions designated by the Director of the Space Development Agency for purposes of this clause, at rates not in excess of a rate equal to 150 percent of the maximum rate of basic pay authorized for positions at Level I of the Executive Schedule under section 5312 of title 5; and

"(ii) to any other position designated by the Director of the Defense Advanced Research Projects Agency or the Director of the Space Development Agency for purposes of this clause, at rates not in excess of the maximum amount of total annual compensation payable at the salary set in accordance with section 104 of title 3;".

2023—Subsec. (b)(1)(B). Pub. L. 118–31, §213(1), struck out ", of which not more than 5 such positions may be positions of administration or management of the Agency" before semicolon at end.

Subsec. (b)(4). Pub. L. 118–31, §213(2), amended par. (4) generally. Prior to amendment, par. (4) read as follows: "during any fiscal year, pay up to 15 individuals newly appointed pursuant to paragraph (1)(B) the travel, transportation, and relocation expenses and services described under sections 5724, 5724a, and 5724c of title 5."

Subsec. (c)(2). Pub. L. 118–31, §1801(a)(33), substituted "the activities" for "the the activities".

2022—Subsec. (a)(6). Pub. L. 117–263, §212(a)(1), in heading, struck out "center" after "intelligence", and in text, substituted "official designated under section 238(b) of the John S. McCain National Defense Authorization Act for Fiscal Year 2019 (Public Law 115–232)" for "Director of the Joint Artificial Intelligence Center" and "to support the activities of such official under section 238 of such Act" for "for the Center".

Subsec. (a)(8). Pub. L. 117–263, §1109(1), substituted "December 31, 2030" for "December 31, 2025".

Subsec. (a)(10). Pub. L. 117–263, §213(1), added par. (10).

Subsec. (b)(1)(F). Pub. L. 117–263, §212(a)(2), substituted "office of the official designated under section 238(b) of the John S. McCain National Defense Authorization Act for Fiscal Year 2019 (Public Law 115–232)" for "Joint Artificial Intelligence Center" and "in support of the activities of such official under section 238 of such Act" for "in the Center".

Subsec. (b)(1)(H). Pub. L. 117–263, §1109(2)(A), substituted "15 positions" for "10 positions" and "5 such positions" for "3 such positions".

Subsec. (b)(1)(J). Pub. L. 117–263, §213(2), added subpar. (J).

Subsec. (b)(2)(A). Pub. L. 117–263, §1109(2)(B)(i), substituted "subparagraphs (B) and (H) of paragraph (1)" for "paragraph (1)(B)" in introductory provisions.

Subsec. (b)(2)(A)(i). Pub. L. 117–263, §1109(2)(B)(ii), substituted "to any of the" for "to any of" and inserted "and any of the 5 positions designated by the Director of the Space Development Agency" after "Projects Agency".

Subsec. (b)(2)(A)(ii). Pub. L. 117–263, §1109(2)(B)(iii), substituted "the Director of the Defense Advanced Research Projects Agency or the Director of the Space Development Agency" for "the Director".

Subsec. (b)(2)(B), (C). Pub. L. 117–103 added subpar. (B) and redesignated former subpar. (B) as (C).

Subsec. (c)(2). Pub. L. 117–263, §1109(3), which directed amendment of par. (2) by inserting "the Space Development Agency," after "Intelligence Center,", was executed by making the insertion after "the activities under section 238 of the John S. McCain National Defense Authorization Act for Fiscal Year 2019 (Public Law 115–232)," to reflect the probable intent of Congress and the intervening amendment by Pub. L. 117–263, §212(a)(3). See below.

Pub. L. 117–263, §212(a)(3), substituted "the activities under section 238 of the John S. McCain National Defense Authorization Act for Fiscal Year 2019 (Public Law 115–232)" for "Joint Artificial Intelligence Center".

2021—Pub. L. 116–283, §1843(a), as added by Pub. L. 117–81, §1701(u)(4)(A), renumbered section 1599h of this title as this section.

Subsec. (a)(7). Pub. L. 117–81, §1081(a)(21)(A), redesignated second par. (7), relating to the Space Development Agency, as (8). Former par. (8) redesignated (9).

Pub. L. 116–283, §1602(a), added par. (7) relating to the Space Development Agency.

Subsec. (a)(8). Pub. L. 116–283, §1708(a)(1), added par. (8).

Subsec. (a)(9). Pub. L. 117–81, §1081(a)(21)(A), redesignated par. (8) as (9).

Subsec. (b)(1)(G). Pub. L. 117–81, §1081(a)(21)(B), redesignated second subpar. (G), relating to the Space Development Agency, as (H). Former subpar. (H) redesignated (I).

Pub. L. 116–283, §1602(b), added subpar. (G) relating to the Space Development Agency. Similar conforming amendments to subsec. (b)(1)(E) and (F) were made by Pub. L. 116–260 and Pub. L. 116–283. Text of subsec. (b)(1)(E) reflects amendment made by Pub. L. 116–283.

Subsec. (b)(1)(H). Pub. L. 116–283, §1708(a)(2), added subpar. (H). Conforming amendment inserting "and" at end of subpar. (G) was executed to the second subpar. (G) to reflect the probable intent of Congress.

Subsec. (b)(1)(I). Pub. L. 117–81, §1081(a)(21)(B), redesignated subpar. (H) as (I).

Subsec. (b)(2)(A). Pub. L. 117–81, §1107(1)(A), added subpar. (A) and struck out former subpar. (A) which read as follows: "in the case of employees appointed pursuant to paragraph (1)(B) to any of 5 positions designated by the Director of the Defense Advanced Research Projects Agency for purposes of this subparagraph, at rates not in excess of a rate equal to 150 percent of the maximum rate of basic pay authorized for positions at Level I of the Executive Schedule under section 5312 of title 5; and".

Subsec. (b)(4). Pub. L. 117–81, §1107(1)(B)–(3), added par. (4).

2020—Subsec. (a)(7). Pub. L. 116–260, §402(1), added par. (7) relating to the National Geospatial-Intelligence Agency.

Subsec. (b)(1)(G). Pub. L. 116–260, §402(2), added subpar. (G) relating to the National Geospatial-Intelligence Agency.

Subsec. (c)(2). Pub. L. 116–260, §402(3), substituted "the Joint Artificial Intelligence Center, or the National Geospatial-Intelligence Agency" for "or the Joint Artificial Intelligence Center".

2019—Subsec. (a)(5). Pub. L. 116–92, §212(d)(1), substituted "DIU" for "Diux" in heading and struck out "Experimental" after "Innovation Unit".

Subsec. (a)(6). Pub. L. 116–92, §212(a), added par. (6).

Subsec. (b)(1)(B). Pub. L. 116–92, §1101, substituted "140 positions" for "100 positions".

Subsec. (b)(1)(E). Pub. L. 116–92, §212(d)(2), struck out "Experimental" after "Innovation Unit".

Subsec. (b)(1)(F). Pub. L. 116–92, §212(b), added subpar. (F).

Subsec. (c)(2). Pub. L. 116–92, §212(c), substituted "the Defense Innovation Unit, or the Joint Artificial Intelligence Center" for "or the Defense Innovation Unit Experimental".

2018—Subsec. (a)(4), (5). Pub. L. 115–232, §1111(a), added pars. (4) and (5).

Subsec. (b)(1)(D), (E). Pub. L. 115–232, §1111(b), added subpars. (D) and (E).

Subsec. (c)(2). Pub. L. 115–232, §1111(c), substituted "the Office of Operational Test and Evaluation, the Strategic Capabilities Office, or the Defense Innovation Unit Experimental" for "or the Office of Operational Test and Evaluation".

Statutory Notes and Related Subsidiaries

Effective Date of 2021 Amendment

Amendment by Pub. L. 117–81 applicable as if included in the enactment of title XVIII of Pub. L. 116–283 as enacted, see section 1701(a)(2) of Pub. L. 117–81, set out in a note preceding section 3001 of this title and note below.

Amendment by section 1843(a) of 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 a note preceding section 3001 of this title.

Program To Develop Accesses, Discover Vulnerabilities, and Engineer Cyber Tools and Develop Tactics, Techniques, and Procedures for Offensive Cyber Operations

Pub. L. 116–283, div. A, title XVII, §1708(b), Jan. 1, 2021, 134 Stat. 4085, provided that:

"(1) In general.—Pursuant to the authority provided under section 1599h(a)(8) of title 10, United States Code, as added by subsection (a), [now 10 U.S.C. 4092(a)(9)] the Commander of United States Cyber Command shall establish a program or augment an existing program within the Command to develop accesses, discover vulnerabilities, and engineer cyber tools and develop tactics, techniques, and procedures for the use of these assets and capabilities in offensive cyber operations.

"(2) Elements.—The program or augmented program required by paragraph (1) shall—

"(A) develop accesses, discover vulnerabilities, and engineer cyber tools and develop tactics, techniques, and procedures fit for Department of Defense military operations in cyberspace, such as reliability, meeting short development and operational timelines, low cost, and expendability;

"(B) aim to decrease the reliance of Cyber Command on accesses, tools, and expertise provided by the intelligence community;

"(C) be designed to provide technical and operational expertise on par with that of programs of the intelligence community;

"(D) enable the Commander to attract and retain expertise resident in the private sector and other technologically elite government organizations; and

"(E) coordinate development activities with, and, as appropriate, facilitate transition of capabilities from, the Defense Advanced Research Projects Agency, the Strategic Capabilities Office, and components within the intelligence community.

"(3) Intelligence community defined.—In this subsection, the term 'intelligence community' has the meaning given such term in section 3 of the National Security Act of 1947 (50 U.S.C. 3003)."

Guidance and Direction on Use of Direct Hiring Processes for Artificial Intelligence Professionals and Other Data Science and Software Development Personnel

Pub. L. 116–283, div. A, title XVII, §1751, Jan. 1, 2021, 134 Stat. 4143, provided that:

"(a) Guidance Required.—Not later than 180 days after the date of the enactment of this Act [Jan. 1, 2021], the Secretary of Defense shall review applicable Department of Defense guidance and where beneficial issue new guidance to the secretaries of the military departments and the heads of the defense components on improved use of the direct hiring processes for artificial intelligence professionals and other data science and software development personnel.

"(b) Objective.—The objective of the guidance issued under subsection (a) shall be to ensure that organizational leaders assume greater responsibility for the results of civilian hiring of artificial intelligence professionals and other data science and software development personnel.

"(c) Contents of Guidance.—At a minimum, the guidance required by subsection (a) shall—

"(1) instruct human resources professionals and hiring authorities to utilize available direct hiring authorities (including excepted service authorities) for the hiring of artificial intelligence professionals and other data science and software development personnel, to the maximum extent practicable;

"(2) instruct hiring authorities, when using direct hiring authorities, to prioritize utilization of panels of subject matter experts over human resources professionals to assess applicant qualifications and determine which applicants are best qualified for a position;

"(3) authorize and encourage the use of ePortfolio reviews to provide insight into the previous work of applicants as a tangible demonstration of capabilities and contribute to the assessment of applicant qualifications by subject matter experts; and

"(4) encourage the use of referral bonuses for recruitment and hiring of highly qualified artificial intelligence professionals and other data science and software development personnel in accordance with volume 451 of Department of Defense Instruction 1400.25.

"(d) Report.—

"(1) In general.—Not later than one year after the date on which the guidance is issued under subsection (a), the Secretary shall submit to the Committee on Armed Services of the Senate and the Committee on Armed Services of the House of Representatives a report on the guidance issued pursuant to subsection (a).

"(2) Contents.—At a minimum, the report submitted under paragraph (1) shall address the following:

"(A) The objectives of the guidance and the manner in which the guidance seeks to achieve those objectives.

"(B) The effect of the guidance on the hiring process for artificial intelligence professionals and other data science and software development personnel, including the effect on—

"(i) hiring time;

"(ii) the use of direct hiring authority;

"(iii) the use of subject matter experts; and

"(iv) the quality of new hires, as assessed by hiring managers and organizational leaders."

Applicability of Personnel Management Authority to Personnel Currently Employed Under Superseded Authority

Pub. L. 114–328, div. A, title XI, §1121(c), Dec. 23, 2016, 130 Stat. 2452, provided that:

"(1) In general.—Any individual employed as of the date of the enactment of this Act [Dec. 23, 2016] under section 1101(b)(1) of the Strom Thurmond National Defense Authorization Act for Fiscal Year 1999 (5 U.S.C. 3104 note) (as in effect on the day before such date) shall remain employed under section 1599h of title 10, United States Code [now 10 U.S.C. 4092] (as added by subsection (a)), after such date in accordance with such section 1599h [now 4092] and the applicable program carried out under such section 1599h [now 4092].

"(2) Date of appointment.—For purposes of subsection (c) of section 1599h of title 10, United States Code [now 10 U.S.C. 4092(c)] (as so added), the date of the appointment of any employee who remains employed as described in paragraph (1) shall be the date of the appointment of such employee under section 1101(b)(1) of the Strom Thurmond National Defense Authorization Act for Fiscal Year 1999 (5 U.S.C. 3104 note) (as so in effect)."

§4093. Science, Mathematics, and Research for Transformation (SMART) Defense Education Program

(a) Requirement for Program.—The Secretary of Defense shall carry out a program to provide financial assistance for education in science, mathematics, engineering, and technology skills and disciplines that, as determined by the Secretary, are critical to the national security functions of the Department of Defense and are needed in the Department of Defense workforce.

(b) Financial Assistance.—(1) Under the program under this section, the Secretary of Defense may award a scholarship or fellowship in accordance with this section to a person who—

(A) is a citizen of the United States or, subject to subsection (g), a country the government of which is a party to The Technical Cooperation Program (TTCP) memorandum of understanding of October 24, 1995;

(B) is pursuing an associates degree, undergraduate degree, or advanced degree in a critical skill or discipline described in subsection (a) at an accredited institution of higher education; and

(C) enters into a service agreement with the Secretary of Defense as described in subsection (c).

(2) The amount of the financial assistance provided under a scholarship or fellowship awarded to a person under this subsection shall be an amount determined by the Secretary of Defense.

(3) Financial assistance provided under a scholarship or fellowship awarded under this section may be paid directly to the recipient of such scholarship or fellowship or to an administering entity for disbursement of the funds.

(c) Service Agreement for Recipients of Financial Assistance.—(1) To receive financial assistance under this section—

(A) in the case of an employee of the Department of Defense, the employee shall enter into a written agreement to continue in the employment of the department for the period of obligated service determined under paragraph (2); and

(B) in the case of a person not an employee of the Department of Defense, the person shall enter into a written agreement to accept and continue employment for the period of obligated service determined under paragraph (2)—

(i) with the Department, including by serving on active duty in the Armed Forces; or

(ii) with a public or private entity or organization outside of the Department if the Secretary—

(I) is unable to find an appropriate position for the person within the Department; and

(II) determines that employment of the person with such entity or organization for the purpose of such obligated service would provide a benefit to the Department.

(2) For the purposes of this subsection, the period of obligated service for a recipient of financial assistance under this section shall be the period determined by the Secretary of Defense as being appropriate to obtain adequate service in exchange for such financial assistance. The period of service required of a recipient may not be less than the total period of pursuit of a degree that is covered by such financial assistance. The period of obligated service is in addition to any other period for which the recipient is obligated to serve in the civil service of the United States.

(3) An agreement entered into under this subsection by a person pursuing an academic degree shall include any terms and conditions that the Secretary of Defense determines necessary to protect the interests of the United States or otherwise appropriate for carrying out this section.

(d) Employment of Program Participants.—The Secretary of Defense—

(1) may, without regard to any provision of title 5 governing appointment of employees to competitive service positions within the Department of Defense, appoint to a position in the Department of Defense in the excepted service an individual who has successfully completed an academic program for which a scholarship or fellowship under this section was awarded and who, under the terms of the agreement for such scholarship or fellowship, at the time of such appointment, owes a service commitment to the Department;

(2) may, upon satisfactory completion of 2 years of substantially continuous service by an incumbent who was appointed to an excepted service position under the authority of paragraph (1), convert the appointment of such individual, without competition, to a career or career conditional appointment; and

(3) may establish arrangements so that participants may participate in a paid internship for an appropriate period with an industry sponsor.

(e) Refund for Period of Unserved Obligated Service.—(1)(A) A participant in the program under this section who is not an employee of the Department of Defense and who voluntarily fails to complete the educational program for which financial assistance has been provided under this section, or fails to maintain satisfactory academic progress as determined in accordance with regulations prescribed by the Secretary of Defense, shall refund to the United States an appropriate amount, as determined by the Secretary.

(B) A participant in the program under this section who is an employee of the Department of Defense and who—

(i) voluntarily fails to complete the educational program for which financial assistance has been provided, or fails to maintain satisfactory academic progress as determined in accordance with regulations prescribed by the Secretary; or

(ii) before completion of the period of obligated service required of such participant—

(I) voluntarily terminates such participant's employment with the Department; or

(II) is removed from such participant's employment with the Department on the basis of misconduct,

shall refund the United States an appropriate amount, as determined by the Secretary.

(2) An obligation to reimburse the United States imposed under paragraph (1) is for all purposes a debt owed to the United States.

(3) The Secretary of Defense may waive, in whole or in part, a refund required under paragraph (1) if the Secretary determines that recovery would be against equity and good conscience or would be contrary to the best interests of the United States.

(4) A discharge in bankruptcy under title 11 that is entered less than five years after the termination of an agreement under this section does not discharge the person signing such agreement from a debt arising under such agreement or under this subsection.

(f) Relationship to Other Programs.—(1) The Secretary of Defense shall coordinate the provision of financial assistance under the authority of this section with the provision of financial assistance under the other authorities provided in this chapter in order to maximize the benefits derived by the Department of Defense from the exercise of all such authorities.

(2) The Secretary of Defense shall seek to enter into partnerships with minority institutions of higher education and appropriate public and private sector organizations to diversify the participants in the program under subsection (a).

(3) In coordination with the efforts under paragraph (2), the Secretary of Defense shall additionally establish a program, which shall be known as the "Ronald V. Dellums Memorial Fellowship in STEM", to provide financial assistance under this section to at least 30 students from communities that are underrepresented in the Department of Defense STEM workforce, not fewer of 50 percent of whom shall attend historically Black colleges and universities and minority-serving institutions. As part of such program, the Secretary shall establish an internship program that provides each student who is awarded a fellowship under this paragraph with an internship in an organization or element of the Department of Defense, and to the extent practicable, each such student shall be paired with a mid-level or a senior-level official of the relevant organization or element of the Department of Defense who shall serve as a mentor during the internship.

(g) Limitation on Participation.—(1) The Secretary may not award scholarships or fellowships under this section to more than five individuals described in paragraph (2) per year.

(2) An individual described in this paragraph is an individual who—

(A) has not previously been awarded a scholarship or fellowship under the program under this section;

(B) is not a citizen of the United States; and

(C) is a citizen of a country the government of which is a party to The Technical Cooperation Program (TTCP) memorandum of understanding of October 24, 1995.

(h) Institution of Higher Education Defined.—In this section, the term "institution of higher education" has the meaning given such term in section 101 of the Higher Education Act of 1965 (20 U.S.C. 1001).

(Added Pub. L. 109–163, div. A, title XI, §1104(d)(1), Jan. 6, 2006, 119 Stat. 3449, §2192a; amended Pub. L. 110–417, [div. A], title X, §1061(a)(5), Oct. 14, 2008, 122 Stat. 4612; Pub. L. 111–84, div. A, title XI, §1102(a)–(d)(1), Oct. 28, 2009, 123 Stat. 2484, 2485; Pub. L. 113–66, div. A, title XI, §1105(a)(1), Dec. 26, 2013, 127 Stat. 886; Pub. L. 113–291, div. A, title II, §215, Dec. 19, 2014, 128 Stat. 3327; Pub. L. 114–92, div. A, title II, §212, Nov. 25, 2015, 129 Stat. 767; Pub. L. 116–283, div. A, title II, §242, Jan. 1, 2021, 134 Stat. 3488; renumbered §4093, Pub. L. 116–283, div. A, title XVIII, §1843(a), as added Pub. L. 117–81, div. A, title XVII, §1701(u)(4)(A), Dec. 27, 2021, 135 Stat. 2153; Pub. L. 117–263, div. A, title X, §1083, Dec. 23, 2022, 136 Stat. 2800.)

Editorial Notes

Codification

Section, as added by Pub. L. 109–163, consists of text of Pub. L. 108–375, div. A, title XI, §1105, Oct. 28, 2004, 118 Stat. 2074; Pub. L. 109–163, div. A, title X, §1056(d), title XI, §1104(a)–(c), Jan. 6, 2006, 119 Stat. 3440, 3448, 3449; Pub. L. 111–383, div. A, title X, §1075(h)(5), Jan. 7, 2011, 124 Stat. 4377, which was formerly set out as a note under section 2192 of this title, and was repealed by Pub. L. 109–163, div. A, title XI, §1104(e)(1), Jan. 6, 2006, 119 Stat. 3450.

Amendments

2022—Subsec. (f)(3). Pub. L. 117–263 added par. (3).

2021—Pub. L. 116–283, §1843(a), as added by Pub. L. 117–81, §1701(u)(4)(A), renumbered section 2192a of this title as this section.

Subsec. (c)(1)(B)(i). Pub. L. 116–283, §242(1), inserted ", including by serving on active duty in the Armed Forces" after "Department".

Subsec. (d)(3). Pub. L. 116–283, §242(2), added par. (3).

Subsec. (f). Pub. L. 116–283, §242(3), designated existing provisions as par. (1) and added par. (2).

2015—Subsec. (b)(1)(A). Pub. L. 114–92, §212(1), inserted "or, subject to subsection (g), a country the government of which is a party to The Technical Cooperation Program (TTCP) memorandum of understanding of October 24, 1995" after "United States".

Subsecs. (g), (h). Pub. L. 114–92, §212(2), (3), added subsec. (g) and redesignated former subsec. (g) as (h).

2014—Subsec. (c)(1)(B). Pub. L. 113–291 amended subpar. (B) generally. Prior to amendment, subpar. (B) read as follows: "in the case of a person not an employee of the Department of Defense, the person shall enter into a written agreement to accept and continue employment in the Department of Defense for the period of obligated service determined under paragraph (2)."

2013—Subsec. (b)(2). Pub. L. 113–66 substituted "an amount determined by the Secretary of Defense" for "the amount determined by the Secretary of Defense as being necessary to pay all educational expenses incurred by that person, including tuition, fees, cost of books, laboratory expenses, equipment expenses, and expenses of room and board".

2009—Subsec. (c)(2). Pub. L. 111–84, §1102(b), substituted "The" for "Except as provided in subsection (d), the" in second sentence.

Subsec. (d). Pub. L. 111–84, §1102(a), amended subsec. (d) generally. Prior to amendment, subsec. (d) provided that, under certain circumstances, the Secretary of Defense could appoint or retain a SMART program participant as an interim employee and separate such participant from employment if no appropriate permanent position was available at the end of the interim period and that the period of interim service would count towards the participant's obligated service requirements.

Subsec. (f). Pub. L. 111–84, §1102(c), struck out "The program under this section is in addition to the authorities provided in chapter 111 of this title." before "The Secretary" and substituted "the other authorities provided in this chapter" for "the authorities provided in such chapter".

Subsecs. (g), (h). Pub. L. 111–84, §1102(d)(1), redesignated subsec. (h) as (g) and struck out former subsec. (g). Prior to amendment, text read as follows: "Not later than February 1, 2007, the Secretary of Defense shall submit to the Committees on Armed Services of the Senate and the House of Representatives, the Committee on Governmental Affairs of the Senate, and the Committee on Government Reform of the House of Representatives a plan for expanding and improving the national defense science and engineering workforce educational assistance program carried out under this section as appropriate to improve recruitment and retention to meet the requirements of the Department of Defense for its science and engineering workforce on a short-term basis and on a long-term basis."

2008—Subsec. (e)(4). Pub. L. 110–417, §1061(a)(5)(A), substituted "title 11" for "title 11, United States Code,".

Subsec. (f). Pub. L. 110–417, §1061(a)(5)(B), substituted "this title" for "title 10, United States Code".

Statutory Notes and Related Subsidiaries

Effective Date of 2021 Amendment

Amendment by Pub. L. 117–81 applicable as if included in the enactment of title XVIII of Pub. L. 116–283 as enacted, see section 1701(a)(2) of Pub. L. 117–81, set out in a note preceding section 3001 of this title and note below.

Amendment by section 1843(a) of 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 a note preceding section 3001 of this title.

National Security Workforce and Educational Diversity Activities

Pub. L. 116–283, div. A, title II, §250, Jan. 1, 2021, 134 Stat. 3495, provided that:

"(a) In General.—The Secretary of Defense shall seek to diversify participation in the Science, Mathematics, and Research for Transformation (SMART) Defense Education Program under section 2192a of title 10, United States Code [now 10 U.S.C. 4093].

"(b) Activities.—In carrying out subsection (a), the Secretary shall—

"(1) subject to the availability of appropriations for this purpose, set aside funds for financial assistance, scholarships, and fellowships for students at historically Black colleges or universities or at minority institutions of higher education and such other institutions as the Secretary considers appropriate;

"(2) partner with institutions of higher education, and such other public and private sector organizations as the Secretary considers appropriate, to increase diversity of participants in the program described in subsection (a);

"(3) establish individual and organizational incentives, and such other activities as the Secretary considers appropriate, to increase diversity of student participation in the program described in subsection (a);

"(4) increase awareness of opportunities to participate in the program described in subsection (a);

"(5) evaluate the potential for new programs, fellowships, and other activities at historically Black colleges or universities and minority institutions of higher education to increase diversity in educational and workforce development programs;

"(6) identify potential changes to the program described in subsection (a) that would improve diversity of participants in such program; and

"(7) establish metrics to evaluate success of activities under this section.

"(c) Report.—Not later than September 30, 2024, the Secretary of Defense shall submit to the congressional defense committees [Committees on Armed Services and Appropriations of the Senate and the House of Representatives] a report that evaluates the success of activities conducted by the Secretary in increasing diversity in appropriate programs of the Department of Defense and hiring and retaining diverse individuals in the science, mathematics, and research workforce of the public sector."

Effect on Current Participants in SMART Pilot Program

Pub. L. 109–163, div. A, title XI, §1104(f), Jan. 6, 2006, 119 Stat. 3450, provided that: "Participation in the Science, Mathematics, and Research for Transformation (SMART) Defense Scholarship Pilot Program under section 1105 of Public Law 108–375 [see Codification note above] by an individual who has entered into an agreement under that pilot program before the date of the enactment of this Act [Jan. 6, 2006] shall be governed by the terms of such agreement without regard to the amendments made by this section [enacting this section, amending section 3304 of Title 5, Government Organization and Employees, and amending and repealing provisions set out as a note under section 2192 of this title]."

§4094. Enhanced pay authority for certain research and technology positions in science and technology reinvention laboratories

(a) In General.—The Secretary of Defense may carry out a program using the pay authority specified in subsection (d) to fix the rate of basic pay for positions described in subsection (c) in order to assist the military departments in attracting and retaining high quality acquisition and technology experts in positions responsible for managing and performing complex, high-cost research and technology development efforts in the science and technology reinvention laboratories of the Department of Defense.

(b) Approval Required.—The program may be carried out in a military department only with the approval of the service acquisition executive of the military department concerned.

(c) Positions.—The positions described in this subsection are positions in the science and technology reinvention laboratories of the Department of Defense that—

(1) require expertise of an extremely high level in a scientific, technical, professional, or acquisition management field; and

(2) are critical to the successful accomplishment of an important research or technology development mission.

(d) Rate of Basic Pay.—The pay authority specified in this subsection is authority as follows:

(1) Authority to fix the rate of basic pay for a position at a rate not to exceed 150 percent of the rate of basic pay payable for level I of the Executive Schedule, upon the approval of the service acquisition executive concerned.

(2) Authority to fix the rate of basic pay for a position at a rate in excess of 150 percent of the rate of basic pay payable for level I of the Executive Schedule, upon the approval of the Secretary of the military department concerned.

(e) Limitations.—

(1) In general.—The authority in subsection (a) may be used only to the extent necessary to competitively recruit or retain individuals exceptionally well qualified for positions described in subsection (c).

(2) Number of positions.—The authority in subsection (a) may not be used with respect to more than five positions in each military department at any one time, unless the Under Secretary of Defense for Research and Engineering, in concurrence with the Secretaries of the military departments concerned, authorizes the transfer of positions from one military department to another.

(3) Term of positions.—The authority in subsection (a) may be used only for positions having a term of less than five years.

(f) Science and Technology Reinvention Laboratories of the Department of Defense Defined.—In this section, the term "science and technology reinvention laboratories of the Department of Defense" means the laboratories designated as science and technology reinvention laboratories by section 4121(b) of this title.

(Added Pub. L. 117–263, div. A, title XI, §1106(a), Dec. 23, 2022, 136 Stat. 2817.)

Editorial Notes

Codification

Another section 4094, added Pub. L. 116–283, div. A, title XI, §1115(a), Jan. 1, 2021, 134 Stat. 3895, §2358c; renumbered §4094 and amended Pub. L. 117–81, div. A, title II, §215(d)(14), title XVII, §1701(e)(3)(A), Dec. 27, 2021, 135 Stat. 1595, 2138, which related to enhanced pay authority for certain research and technology positions in science and technology reinvention laboratories and was substantially identical to this section, was repealed by Pub. L. 118–31, div. A, title XVIII, §1801(a)(32), Dec. 22, 2023, 137 Stat. 685.

Statutory Notes and Related Subsidiaries

Effective Date

Pub. L. 117–263, div. A, title XI, §1106(c), Dec. 23, 2022, 136 Stat. 2818, provided that: "This section [enacting this section] shall take effect immediately after section 881 of this Act [section 881(a) and (b) of Pub. L. 117–263, set out as notes under section 4027 of this title]."

SUBCHAPTER III—RESEARCH AND DEVELOPMENT CENTERS AND FACILITIES

Editorial Notes

Amendments

2021—Pub. L. 117–81, div. A, title XVII, §1701(u)(3)(A), Dec. 27, 2021, 135 Stat. 2152, amended Pub. L. 116–283, div. A, title XVIII, §1842(a), Jan. 1, 2021, 134 Stat. 4244, which added this chapter, by adding subchapter heading. Heading was editorially conformed to the style used in this title.

Statutory Notes and Related Subsidiaries

Laboratory Quality Enhancement Program

Pub. L. 114–328, div. A, title II, §211, Dec. 23, 2016, 130 Stat. 2046, as amended by Pub. L. 115–91, div. A, title II, §218(a), (b)(1), Dec. 12, 2017, 131 Stat. 1329, 1330; Pub. L. 117–81, div. A, title II, §215(d)(6), Dec. 27, 2021, 135 Stat. 1594, which authorized the Secretary of Defense, acting through the Under Secretary of Defense for Research and Engineering, to carry out Laboratory Quality Enhancement Program establishing panels, was repealed by Pub. L. 118–159, div. A, title II, §217(b), Dec. 23, 2024, 138 Stat. 1827. See section 4128 of this title.

Defense Laboratory Modernization Pilot Program

Pub. L. 114–92, div. B, title XXVIII, §2803, Nov. 25, 2015, 129 Stat. 1169, as amended by Pub. L. 114–328, div. B, title XXVIII, §2806, Dec. 23, 2016, 130 Stat. 2715; Pub. L. 115–232, div. B, title XXVIII, §2808(a)–(c), Aug. 13, 2018, 132 Stat. 2265, 2266; Pub. L. 117–81, div. A, title II, §215(d)(4), Dec. 27, 2021, 135 Stat. 1594, which authorized using amounts appropriated or otherwise made available to the Department of Defense for research, development, test, and evaluation, to fund certain military construction projects, was repealed by Pub. L. 117–263, div. B, title XXVIII, §2803(c), Dec. 23, 2022, 136 Stat. 2994. See section 2805(g) of this title.

§4121. Science and technology reinvention laboratories: authority and designation

(a) In General.—(1) The Secretary of Defense may carry out personnel demonstration projects at Department of Defense laboratories designated by the Secretary as Department of Defense science and technology reinvention laboratories.

(2)(A) Each personnel demonstration project carried out under the authority of paragraph (1) shall be generally similar in nature to the China Lake demonstration project.

(B) For purposes of subparagraph (A), the China Lake demonstration project is the demonstration project that is authorized by section 6 of the Civil Service Miscellaneous Amendments Act of 1983 (Public Law 98–224) to be continued at the Naval Weapons Center, China Lake, California, and at the Naval Ocean Systems Center, San Diego, California.

(3) If the Secretary carries out a demonstration project at a laboratory pursuant to paragraph (1), section 4703 of title 5 shall apply to the demonstration project, except that—

(A) subsection (d) of such section 4703 shall not apply to the demonstration project;

(B) the authority of the Secretary to carry out the demonstration project is that which is provided in paragraph (1) rather than the authority which is provided in such section 4703; and

(C) the Secretary shall exercise the authorities granted to the Office of Personnel Management under such section 4703 through the Under Secretary of Defense for Research and Engineering (who shall place an emphasis in the exercise of such authorities on enhancing efficient operations of the laboratory and who may, in exercising such authorities, request administrative support from science and technology reinvention laboratories to review, research, and adjudicate personnel demonstration project proposals).

(4) The employees of a laboratory covered by a personnel demonstration project carried out under this section shall be exempt from, and may not be counted for the purposes of, any constraint or limitation in a statute or regulation in terms of supervisory ratios or maximum number of employees in any specific category or categories of employment that may otherwise be applicable to the employees. The employees shall be managed by the director of the laboratory subject to the supervision of the Under Secretary of Defense for Research and Engineering.

(5) The limitations in section 5373 of title 5 do not apply to the authority of the Secretary under this subsection to prescribe salary schedules and other related benefits.

(b) Designation of Laboratories.—Each of the following is hereby designated as a Department of Defense science and technology reinvention laboratory as described in subsection (a):

(1) The Air Force Research Laboratory.

(2) The Joint Warfare Analysis Center.

(3) The Army Research Institute for the Behavioral and Social Sciences.

(4) The Combat Capabilities Development Command Armaments Center.

(5) The Combat Capabilities Development Command Army Research Laboratory.

(6) The Combat Capabilities Development Command Aviation and Missile Center.

(7) The Combat Capabilities Development Command Chemical Biological Center.

(8) The Combat Capabilities Development Command Command, Control, Communications, Computers, Cyber, Intelligence, Surveillance, and Reconnaissance Center.

(9) The Combat Capabilities Development Command Ground Vehicle Systems Center.

(10) The Combat Capabilities Development Command Soldier Center.

(11) The Engineer Research and Development Center.

(12) The Medical Research and Development Command.

(13) The Technical Center, US Army Space and Missile Defense Command.

(14) The Naval Air Systems Command Warfare Centers.

(15) The Naval Facilities Engineering Command Engineering and Expeditionary Warfare Center.

(16) The Naval Information Warfare Centers, Atlantic and Pacific.

(17) The Naval Medical Research Center.

(18) The Naval Research Laboratory.

(19) The Naval Sea Systems Command Warfare Centers.

(20) The Office of Naval Research.

(c) Conversion Procedures.—The Secretary of Defense shall implement procedures to convert the civilian personnel of each Department of Defense science and technology reinvention laboratory, as so designated by subsection (b), to the personnel system under an appropriate demonstration project (as referred to in subsection (a)). Any conversion under this subsection—

(1) shall not adversely affect any employee with respect to pay or any other term or condition of employment;

(2) shall be consistent with section 4703(f) of title 5;

(3) shall be completed within 18 months after designation; and

(4) shall not apply to prevailing rate employees (as defined by section 5342(a)(2) of title 5) or senior executives (as defined by section 3132(a)(3) of such title).

(d) Limitation.—The science and technology reinvention laboratories, as so designated by subsection (a), may not implement any personnel system, other than a personnel system under an appropriate demonstration project (as referred to subsection (a)), without prior congressional authorization.

(Added Pub. L. 117–81, div. A, title II, §215(a), Dec. 27, 2021, 135 Stat. 1591.)

Editorial Notes

References in Text

Section 6 of the Civil Service Miscellaneous Amendments Act of 1983, referred to in subsec. (a)(2)(B), is section 6 of Pub. L. 98–224, Mar. 2, 1984, 98 Stat. 49, which is not classified to the Code.

Statutory Notes and Related Subsidiaries

Effective Date

Section effective immediately after the effective date of the amendments made by title XVIII of Pub. L. 116–283 (Jan. 1, 2022), see section 215(e) of Pub. L. 117–81, set out as an Effective Date of 2021 Amendment note under section 4091 of this title.

Defense Laboratories Personnel Demonstration Projects

Pub. L. 110–181, div. A, title XI, §1107, Jan. 28, 2008, 122 Stat. 357, as amended by Pub. L. 110–417, [div. A], title XI, §1109, Oct. 14, 2008, 122 Stat. 4618; Pub. L. 111–84, div. A, title X, §1073(d), Oct. 28, 2009, 123 Stat. 2475; Pub. L. 111–383, div. A, title XI, §1101(b), Jan. 7, 2011, 124 Stat. 4382; Pub. L. 112–81, div. A, title X, §1066(b)(2), Dec. 31, 2011, 125 Stat. 1588; Pub. L. 117–81, div. A, title II, §215(d)(2), Dec. 27, 2021, 135 Stat. 1593, provided that:

"(e) [sic] Requirement.—The Secretary of Defense shall take all necessary actions to fully implement and use the authorities provided to the Secretary under subsection (a) of section 4121 of title 10, United States Code, to carry out personnel management demonstration projects at Department of Defense laboratories designated by subsection (b) of such section as Department of Defense science and technology reinvention laboratories.

"(b) Process for Full Implementation.—The Secretary of Defense shall also implement a process and implementation plan to fully utilize the authorities described in subsection (a) to enhance the performance of the missions of the laboratories.

"(c) Other Laboratories.—Any flexibility available to any demonstration laboratory shall be available for use at any other laboratory designated by section 4121(b) of title 10, United States Code[,] as a Department of Defense science and technology reinvention laboratory.

"(d) Submission of List and Description.—Not later than March 1 of each year, the Secretary of Defense shall submit to Congress a report containing a list and description of the demonstration project notices, amendments, and changes requested by the laboratories during the preceding calendar year. The list shall include all approved and disapproved notices, amendments, and changes, and the reasons for disapproval or delay in approval.

"(e) Status Reports.—

"(1) In general.—The Secretary shall include in each report under subsection (d) the information described in paragraph (2).

"(2) Information required.—Each report under subsection (d) shall describe the following:

"(A) The actions taken by the Secretary of Defense under subsection (a) during the year covered by the report.

"(B) The progress made by the Secretary of Defense during such year in developing and implementing the plan required by subsection (b), including the anticipated date for completion of such plan and a list and description of any issues relating to the development or implementation of such plan.

"(C) With respect to any applications by any Department of Defense laboratories seeking to be designated as a demonstration laboratory or to otherwise obtain any of the personnel flexibilities available to a demonstration laboratory—

"(i) the number of applications that were received, pending, or acted on during such year;

"(ii) the status or disposition of any applications under clause (i), including, in the case of any application on which a final decision was rendered, the laboratory involved, what the laboratory had requested, the decision reached, and the reasons for the decision; and

"(iii) in the case of any applications under clause (i) on which a final decision was not rendered, the date by which a final decision is anticipated.

"(3) Definition.—For purposes of this subsection, the term 'demonstration laboratory' means a laboratory designated by the Secretary of Defense under the provisions of section 4121(a) of title 10, United States Code."

[For termination, effective Dec. 31, 2021, of annual reporting provisions in section 1107(d) of Pub. L. 110–181, set out above, see section 1061 of Pub. L. 114–328, set out as a note under section 111 of this title.]

§4123. Mechanisms to provide funds for defense laboratories for research and development of technologies for military missions

(a) Mechanisms to Provide Funds.—(1) The Secretary of Defense, in consultation with the Secretaries of the military departments, shall establish mechanisms under which the director of a defense laboratory may use an amount of funds equal to not less than two percent and not more than four percent of all funds available to the defense laboratory for the following purposes:

(A) To fund innovative basic and applied research that is conducted at the defense laboratory and supports military missions.

(B) To fund development programs that support the transition of technologies developed by the defense laboratory into operational use.

(C) To fund workforce development activities that improve the capacity of the defense laboratory to recruit and retain personnel with necessary scientific and engineering expertise that support military missions.

(D) To fund the repair or minor military construction of the laboratory infrastructure and equipment, in accordance with subsection (b).

(2) The mechanisms established under paragraph (1) shall provide that funding shall be used under paragraph (1) at the discretion of the director of a defense laboratory in consultation with the science and technology executive of the military department concerned.

(3) The science and technology executive of a military department may develop policies and guidance to leverage funding and promote cross-laboratory collaboration, including with laboratories of other military departments.

(4) After consultation with the science and technology executive of the military department concerned, the director of a defense laboratory may charge customer activities a fixed percentage fee, in addition to normal costs of performance, in order to obtain funds to carry out activities authorized by this subsection. The fixed fee may not exceed four percent of costs.

(b) Availability of Funds for Infrastructure Projects.—Funds shall be available in accordance with subsection (a)(1)(D) only if—

(1) the Secretary notifies the congressional defense committees of the total cost of the project before the date on which the Secretary uses the mechanism under such subsection for such project; and

(2) the Secretary ensures that the project complies with the applicable cost limitations in—

(A) section 2805(d) of this title, with respect to revitalization and recapitalization projects; and

(B) section 2811 of this title, with respect to repair projects.

(c) Release and Dissemination of Information on Contributions From Use of Authority to Military Missions.—

(1) Collection of information.—The Secretary shall establish and maintain mechanisms for the continuous collection of information on achievements, best practices identified, lessons learned, and challenges arising in the exercise of the authority in this section.

(2) Release of information.—The Secretary shall establish and maintain mechanisms as follows:

(A) Mechanisms for the release to the public of information on achievements and best practices described in paragraph (1) in unclassified form.

(B) Mechanisms for dissemination to appropriate civilian and military officials of information on achievements and best practices described in paragraph (1) in classified form.

(Added Pub. L. 115–91, div. A, title II, §220(a), Dec. 12, 2017, 131 Stat. 1332, §2363; amended Pub. L. 115–232, div. A, title II, §250, Aug. 13, 2018, 132 Stat. 1702; renumbered §4123, Pub. L. 116–283, div. A, title XVIII, §1843(b)(1), as added Pub. L. 117–81, div. A, title XVII, §1701(u)(4)(A), Dec. 27, 2021, 135 Stat. 2153.)

Editorial Notes

Amendments

2021—Pub. L. 116–283, §1843(b)(1), as added by Pub. L. 117–81, §1701(u)(4)(A), renumbered section 2363 of this title as this section. A former section 1843(b)(1) of Pub. L. 116–283, which directed the renumbering of section 2363 of this title as section 4103 instead of this section, was repealed by Pub. L. 117–81, §1701(u)(4)(A), effective as if included therein, so that such renumbering was no longer directed.

2018—Subsec. (c). Pub. L. 115–232 amended subsec. (c) generally. Prior to amendment, subsec. (c) related to annual reports on the use of the authority under subsec. (a).

Statutory Notes and Related Subsidiaries

Effective Date of 2021 Amendment

Amendment by Pub. L. 117–81 applicable as if included in the enactment of title XVIII of Pub. L. 116–283 as enacted, see section 1701(a)(2) of Pub. L. 117–81, set out in a note preceding section 3001 of this title and note below.

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 a note preceding section 3001 of this title.

§4124. Centers for Science, Technology, and Engineering Partnership

(a) Designation.—(1) The Secretary of Defense, in coordination with the Secretaries of the military departments, shall designate each science and technology reinvention laboratory as a Center for Science, Technology, and Engineering Partnership (in this section referred to as "Centers") in the recognized core competencies of the designee.

(2) The Secretary of Defense shall establish a policy to encourage the Secretary of each military department to reengineer management and business processes and adopt best-business and personnel practices at the Centers of the Secretary concerned in connection with the capability requirements of the Centers, so as to serve as recognized leaders in such capabilities throughout the Department of Defense and in the national technology and industrial base.

(3) The Secretary of Defense, acting through the directors of the Centers, may conduct one or more pilot programs, consistent with applicable requirements of law, to test any practices referred to in paragraph (2) that the Directors determine could—

(A) improve the efficiency and effectiveness of operations at Centers;

(B) improve the support provided by the Centers for the elements of the Department of Defense who use the services of the Centers; and

(C) enhance capabilities by reducing the cost and improving the performance and efficiency of executing laboratory missions.

(b) Public-private Partnerships.—(1) To achieve one or more objectives set forth in paragraph (2), the Secretary may authorize and establish incentives for the Director of a Center to enter into public-private cooperative arrangements (in this section referred to as a "public-private partnership") to provide for any of the following:

(A) For employees of the Center, academia, private industry, State and local governments, or other entities outside the Department of Defense to perform (under contract, subcontract, or otherwise) work related to the capabilities of the Center, including any work that—

(i) involves one or more capabilities of the Center; and

(ii) may be applicable to both the Department and commercial entities.

(B) For private industry or other entities outside the Department of Defense to use for either Government or commercial purposes any capabilities of the Center that are not fully used for Department of Defense activities for any period determined to be consistent with the needs of the Department of Defense.

(2) The objectives for exercising the authority provided in paragraph (1) are as follows:

(A) To maximize the use of the capacity of a Center.

(B) To reduce or eliminate the cost of ownership of a Center by the Department of Defense.

(C) To reduce the cost of science, technology, and engineering activities of the Department of Defense.

(D) To leverage private sector investment in—

(i) such efforts as research and equipment recapitalization for a Center; and

(ii) the promotion of the undertaking of commercial business ventures based on the capabilities of a Center, as determined by the director of the Center.

(E) To foster cooperation and technology transfer between the armed forces, academia, private industry, and State and local governments.

(F) To increase access by a Center to a skilled technical workforce that can contribute to the effective and efficient execution of the missions of the Department of Defense.

(G) To increase the ability of a Center to access and use non-Department of Defense methods to develop and innovate and access capabilities that contribute to the effective and efficient execution of the missions of the Department of Defense.

(3)(A) Public-private partnerships entered into under paragraph (1) may be used for purposes relating to technology transfer and other authorities described in subparagraph (B).

(B) The authorities described in this subparagraph are provisions of law that provide for cooperation and partnership by the Department of Defense with academia, private industry, and State and local governments, including the following:

(i) Sections 3371 through 3375 of title 5.

(ii) Sections 2194, 2563, 4001, 4021, 4831, and 4062 of this title.

(iii) Section 209 of title 35.

(iv) Sections 8, 12, and 23 of the Stevenson-Wydler Technology Innovation Act of 1980 (15 U.S.C. 3706, 3710a, and 3715).

(c) Private Sector Use of Excess Capacity.—Any capability of a Center made available to the private sector may be used to perform research and testing activities in order to make more efficient and economical use of Government-owned capabilities and encourage the creation and preservation of jobs to ensure the availability of a workforce with the necessary research and technical skills to meet the needs of the armed forces.

(d) Crediting of Amounts for Performance.—Amounts received by a Center for work performed under a public-private partnership may—

(1) be credited to the appropriation or fund, including a working-capital or revolving fund, that incurs the cost of performing the work; or

(2) be used by the Director of the Center as the Director considers appropriate and consistent with section 219 of the Duncan Hunter National Defense Authorization Act for Fiscal Year 2009 (Public Law 110–417; 10 U.S.C. 2358 note).¹

(e) Availability of Excess Capacities to Private-sector Partners.—Capacities of a Center may be made available for use by a private-sector entity under this section only if—

(1) the use of the capacities will not have a significant adverse effect on the performance of the Center or the ability of the Center to achieve the mission of the Center, as determined by the Director of the Center; and

(2) the private-sector entity agrees—

(A) to reimburse the Department of Defense when required in accordance with the guidance of the Department for the direct and indirect costs (including any rental costs) that are attributable to the use of the capabilities by the private-sector entity, as determined by the Secretary of the military departments; and

(B) to hold harmless and indemnify the United States from—

(i) any claim for damages or injury to any person or property arising out of the use of the capabilities, except under the circumstances described in section 2563(c)(3) of this title; and

(ii) any liability or claim for damages or injury to any person or property arising out of a decision by the Secretary to suspend or terminate that use of capabilities during a war or national emergency.

(f) Use of Partnership Intermediaries to Promote Defense Research and Education.—(1) Subject to the approval of the Secretary or the head of the another department or agency of the Federal Government concerned, the Director of a Center may enter into a contract, memorandum of understanding or other transaction with a partnership intermediary that provides for the partnership intermediary to perform services for the Department of Defense that increase the likelihood of success in the conduct of cooperative or joint activities of the Center with industry or academic institutions.

(2) In this subsection, the term "partnership intermediary" means an agency of a State or local government, or a nonprofit entity owned in whole or in part by, chartered by, funded in whole or in part by, or operated in whole or in part by or on behalf of a State or local government, that—

(A) assists, counsels, advises, evaluates, or otherwise cooperates with industry or academic institutions that need or can make demonstrably productive use of technology-related assistance from a Center;

(B) facilitates technology transfer from industry or academic institutions to a Center; or

(C) assists and facilitates workforce development in critical technology areas for technology transition activities to fulfill unmet needs of a Center.

(g) Construction of Provision.—Nothing in this section may be construed to authorize a change, otherwise prohibited by law, from the performance of work at a Center by personnel of the Department of Defense to performance by a contractor.

(h) Definitions.—In this section:

(1) The term "capabilities", with respect to a Center for Science, Technology, and Engineering Partnership, means the facilities, equipment, personnel, intellectual property, and other assets that support the core competencies of the Center.

(2) The term "national technology and industrial base" has the meaning given that term in section 4801 of this title.

(3) The term "science and technology reinvention laboratory" means a science and technology reinvention laboratory designated under section 4121(b) of this title.

(Added Pub. L. 114–92, div. A, title II, §211(a), Nov. 25, 2015, 129 Stat. 764, §2368; amended Pub. L. 115–232, div. A, title II, §231, Aug. 13, 2018, 132 Stat. 1690; Pub. L. 116–92, div. A, title XVII, §1731(a)(45), Dec. 20, 2019, 133 Stat. 1814; renumbered §4124 and amended Pub. L. 116–283, div. A, title XVIII, §1843(b)(1), (d), as added Pub. L. 117–81, div. A, title XVII, §1701(u)(4)(A), (C), Dec. 27, 2021, 135 Stat. 2153; Pub. L. 116–283, div. A, title XVIII, §§1844(b)(1), (c), 1883(b)(2), Jan. 1, 2021, 134 Stat. 4245, 4246, 4294; Pub. L. 117–81, div. A, title II, §215(d)(12), title XVII, §1701(u)(5)(B), Dec. 27, 2021, 135 Stat. 1594, 2154; Pub. L. 118–31, div. A, title II, §214, Dec. 22, 2023, 137 Stat. 184.)

Editorial Notes

References in Text

Section 219 of the Duncan Hunter National Defense Authorization Act for Fiscal Year 2009, referred to in subsec. (d)(2), is section 219 of Pub. L. 110–417, [div. A], title II, Oct. 14, 2008, 122 Stat. 4389, which was set out as a note under section 2358 of this title, prior to repeal by Pub. L. 115–91, div. A, title II, §220(c)(1), Dec. 12, 2017, 131 Stat. 1333. Provisions similar to those in former section 219 of Pub. L. 110–417 are now contained in section 4123 of this title.

Amendments

2023—Subsec. (f)(2). Pub. L. 118–31 inserted dash after "local government, that" and subpar. (A) designation before "assists" and added subpars. (B) and (C).

2021—Pub. L. 116–283, §1844(b)(1), which directed the renumbering of section 2368 of this title as section 4146 instead of this section, was repealed by Pub. L. 117–81, §1701(u)(5)(B), effective as if included therein, so that such renumbering was no longer directed.

Pub. L. 116–283, §1843(b)(1), as added by Pub. L. 117–81, §1701(u)(4)(A), renumbered section 2368 of this title as this section.

Subsec. (b)(3)(B)(ii). Pub. L. 116–283, §1843(d), as added by Pub. L. 117–81, §1701(u)(4)(C), substituted "2563, 4001, 4021, 4831, and 4062" for "2358, 2371, 2511, 2539b, and 2563". Former section 1844(c)(1) of Pub. L. 116–283, which directed substitution of "4001, 4002, 4831, 4892," for "2358, 2371, 2511, 2539b,", was repealed by Pub. L. 117–81, §1701(u)(5)(B), effective as if included in title XVIII of Pub. L. 116–283.

Subsec. (d)(2). Pub. L. 116–283, §1844(c)(2), which directed substitution of "section 4103 of this title." for "section 219 of the Duncan Hunter National Defense Authorization Act for Fiscal Year 2009 (Public Law 110–417; 10 U.S.C. 2358 note).", was repealed by Pub. L. 117–81, §1701(u)(5)(B), effective as if included in title XVIII of Pub. L. 116–283.

Subsec. (h)(3). Pub. L. 117–81, §215(d)(12), which directed amendment of section "2124(h)(3)" of this title by substituting "designated under section 4121(b) of this title" for "designated under section 1105 of the National Defense Authorization Act for Fiscal Year 2010 (Public Law 111–84; 10 U.S.C. 2358 note)", was executed by making the substitution in subsec. (h)(3) of this section to reflect the probable intent of Congress.

2019—Subsec. (f)(1). Pub. L. 116–92 substituted "transaction" for "transition".

2018—Subsecs. (f) to (h). Pub. L. 115–232 added subsec. (f) and redesignated former subsecs. (f) and (g) as (g) and (h), respectively.

Statutory Notes and Related Subsidiaries

Effective Date of 2021 Amendment

Amendment by section 215 of Pub. L. 117–81 effective immediately after the effective date of the amendments made by title XVIII of Pub. L. 116–283 (Jan. 1, 2022), see section 215(e) of Pub. L. 117–81, set out as a note under section 4091 of this title.

Amendment by section 1701(u)(4)(A), (C), (5)(B) of Pub. L. 117–81 applicable as if included in the enactment of title XVIII of Pub. L. 116–283 as enacted, see section 1701(a)(2) of Pub. L. 117–81, set out in a note preceding section 3001 of this title and note below.

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 a note preceding section 3001 of this title.

¹ See References in Text note below.

§4125. Functions of Defense research facilities

(a) Functions of Defense Research Facilities.—The Secretary of Defense shall ensure, to the maximum extent practicable—

(1) that Defense research facilities are assigned broad mission requirements rather than specific hardware needs;

(2) that appropriate personnel of such facilities are assigned to serve as consultants on component and support system standardization;

(3) that the managers of such facilities have broad latitude to choose research and development projects based on awareness of activities throughout the technology domain, including within the Federal Government, the Department of Defense, public and private research institutions and universities, and the global commercial marketplace;

(4) that technology position and issue papers prepared by Defense research facilities are readily available to all components of the Department of Defense and to contractors who submit bids or proposals for Department of Defense contracts;

(5) that, in order to promote increased consideration of technological issues early in the development process, any technological assessment made by a Defense research facility shall be provided to the Defense Technical Information Center repository to support acquisition decisions; and

(6) that, in light of Defense research facilities being funded by the public, Defense research facilities are broadly authorized and encouraged to support national technological development goals and support technological missions of other departments and agencies of the Federal Government, when such support is determined by the Secretary of Defense to be in the best interests of the Federal Government.

(b) Definitions.—In this section, the term "Defense research facility" means a Department of Defense facility which performs or contracts for the performance of—

(1) basic research; or

(2) applied research known as exploratory development.

(Added and amended Pub. L. 116–283, div. A, title XVIII, §1843(b)(2), as added Pub. L. 117–81, div. A, title XVII, §1701(u)(4)(A), Dec. 27, 2021, 135 Stat. 2153.)

Codification

The text of subsecs. (b) and (c) of section 2364 of this title, which were transferred to this section and redesignated as subsecs. (a) and (b), respectively, by Pub. L. 116–283, §1843(b)(2), was based on Pub. L. 99–661, div. A, title II, §234(c)(1), Nov. 14, 1986, 100 Stat. 3848; Pub. L. 100–26, §§3(1)(A), 7(a)(9), Apr. 21, 1987, 101 Stat. 273, 278; Pub. L. 100–180, div. A, title XII, §1231(10)(A), Dec. 4, 1987, 101 Stat. 1160; Pub. L. 104–106, div. A, title VIII, §805, Feb. 10, 1996, 110 Stat. 390; Pub. L. 113–291, div. A, title II, §213, Dec. 19, 2014, 128 Stat. 3325; Pub. L. 114–92, div. A, title II, §214(a)(2), Nov. 25, 2015, 129 Stat. 768; Pub. L. 116–283, div. A, title XVIII, §1844(d), Jan. 1, 2021, 134 Stat. 4246; Pub. L. 117–81, div. A, title XVII, §1701(u)(5)(B), Dec. 27, 2021, 135 Stat. 2154.

Amendments

2021—Subsecs. (a), (b). Pub. L. 116–283, §1843(b)(2), as added by Pub. L. 117–81, §1701(u)(4)(A), transferred subsecs. (b) and (c) of section 2364 of this title to this section and redesignated them as subsecs. (a) and (b), respectively.

Statutory Notes and Related Subsidiaries

Effective Date of 2021 Amendment

Amendment by Pub. L. 117–81 applicable as if included in the enactment of title XVIII of Pub. L. 116–283 as enacted, see section 1701(a)(2) of Pub. L. 117–81, set out in a note preceding section 3001 of this title and Effective Date note below.

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.

Specification of Certain Duties of the Defense Technical Information Center

Pub. L. 115–232, div. A, title IX, §905, Aug. 13, 2018, 132 Stat. 1922, as amended by Pub. L. 116–283, div. A, title XVIII, §1842(c)(2), Jan. 1, 2021, 134 Stat. 4244, provided that:

"(a) In General.—In addition to any other duties specified for the Defense Technical Information Center by law, regulation, or Department of Defense directive or instruction, the duties of the Center shall include the following:

"(1) To execute the Global Research Watch Program under section 4066 of title 10, United States Code.

"(2) To develop and maintain datasets and other data repositories on research and engineering activities being conducted within the Department.

"(b) Action Plan.—Not later than 90 days after the date of the enactment of this Act [Aug. 13, 2018], the Secretary of Defense shall submit to the Committees on Armed Services of the Senate and the House of Representatives a plan of action for the commencement by the Defense Technical Information Center of the duties specified in subsection (a)."

Coordination of High-Temperature Superconductivity Research and Development

Pub. L. 100–180, div. A, title II, §218(b)(2), Dec. 4, 1987, 101 Stat. 1053, as amended by Pub. L. 100–418, title V, §5115(c), Aug. 23, 1988, 102 Stat. 1433; Pub. L. 103–160, div. A, title IX, §904(f), Nov. 30, 1993, 107 Stat. 1729; Pub. L. 106–65, div. A, title IX, §911(a)(1), Oct. 5, 1999, 113 Stat. 717, provided that: "The Secretary of Defense, acting through the Under Secretary of Defense for Acquisition, Technology, and Logistics, shall—

"(A) coordinate the research and development activities of the Department of Defense relating to high-temperature superconductivity; and

"(B) ensure that such research and development—

"(i) is carried out in coordination with the high-temperature superconductivity research and development activities of the Department of Energy (including the national laboratories of the Department of Energy), the National Science Foundation, the National Institute of Standards and Technology, and the National Aeronautics and Space Administration; and

"(ii) complements rather than duplicates such activities."

§4126. Use of federally funded research and development centers

(a) Limitation on Use of Centers.—Except as provided in subsection (b), the Secretary of Defense may not place work with a federally funded research and development center unless such work is within the purpose, mission, and general scope of effort of such center as established in the sponsoring agreement of the Department of Defense with such center.

(b) Exception for Applied Scientific Research.—This section does not apply to a federally funded research and development center that performs applied scientific research under laboratory conditions.

(c) Limitation on Creation of New Centers.—(1) The head of an agency may not obligate or expend amounts appropriated to the Department of Defense for purposes of operating a federally funded research center that was not in existence before June 2, 1986, until—

(A) the head of the agency submits to Congress a report with respect to such center that describes the purpose, mission, and general scope of effort of the center; and

(B) a period of 60 days beginning on the date such report is received by Congress has elapsed.

(2) In this subsection, the term "head of an agency" has the meaning given such term in section 3004 of this title.

(d) Identification to Congress of FFRDC Workload Effort.—After the close of a fiscal year, and not later than January 1 of the next year, the Secretary shall submit to the Committee on Armed Services and the Committee on Appropriations of the Senate and the Committee on Armed Services and the Committee on Appropriations of the House of Representatives a report setting forth the actual obligations and the actual man-years of effort expended at each federally funded research and development center during that fiscal year.

(Added Pub. L. 99–500, §101(c) [title X, §912(a)(1)], Oct. 18, 1986, 100 Stat. 1783–82, 1783-146, and Pub. L. 99–591, §101(c) [title X, §912(a)(1)], Oct. 30, 1986, 100 Stat. 3341–82, 3341-146, §2367; Pub. L. 99–661, div. A, title IX, formerly title IV, §912(a)(1), Nov. 14, 1986, 100 Stat. 3925, renumbered title IX, Pub. L. 100–26, §3(5), Apr. 21, 1987, 101 Stat. 273; amended Pub. L. 102–190, div. A, title II, §256(a)(1), Dec. 5, 1991, 105 Stat. 1330; Pub. L. 104–106, div. A, title XV, §1502(a)(9), Feb. 10, 1996, 110 Stat. 503; Pub. L. 106–65, div. A, title X, §1067(1), Oct. 5, 1999, 113 Stat. 774; Pub. L. 107–314, div. A, title X, §1041(a)(12), Dec. 2, 2002, 116 Stat. 2645; renumbered §4126, Pub. L. 116–283, div. A, title XVIII, §1843(b)(1), as added Pub. L. 117–81, div. A, title XVII, §1701(u)(4)(A), Dec. 27, 2021, 135 Stat. 2153; Pub. L. 116–283, div. A, title XVIII, §§1844(b)(1), 1883(b)(2), Jan. 1, 2021, 134 Stat. 4245, 4294; Pub. L. 117–81, div. A, title XVII, §1701(u)(5)(B), Dec. 27, 2021, 135 Stat. 2154.)

Editorial Notes

Codification

Pub. L. 99–591 is a corrected version of Pub. L. 99–500.

Pub. L. 99–500, Pub. L. 99–591, and Pub. L. 99–661 added identical sections.

Amendments

2021—Pub. L. 116–283, §1844(b)(1), which directed the renumbering of section 2367 of this title as section 4147 instead of this section, was repealed by Pub. L. 117–81, §1701(u)(5)(B), effective as if included therein, so that such renumbering was no longer directed.

Pub. L. 116–283, §1843(b)(1), as added by Pub. L. 117–81, §1701(u)(4)(A), renumbered section 2367 of this title as this section.

Subsec. (c)(2). Pub. L. 116–283, §1883(b)(2), substituted "section 3004" for "section 2302(1)".

2002—Subsec. (d). Pub. L. 107–314, §1041(a)(12), struck out designations for pars. (1) and (2) and text of par. (1). Prior to amendment par. (1) read as follows: "In the documents provided to Congress by the Secretary of Defense in support of the budget submitted by the President under section 1105 of title 31 for any fiscal year, the Secretary shall set forth the proposed amount of the man-years of effort to be funded by the Department of Defense for each federally funded research and development center for the fiscal year covered by that budget."

1999—Subsec. (d)(2). Pub. L. 106–65 substituted "and the Committee on Armed Services" for "and the Committee on National Security".

1996—Subsec. (d)(2). Pub. L. 104–106 substituted "the Committee on Armed Services and the Committee on Appropriations of the Senate and the Committee on National Security and the Committee on Appropriations of the" for "the Committees on Armed Services and the Committees on Appropriations of the Senate and".

1991—Subsec. (d). Pub. L. 102–190 added subsec. (d).

Statutory Notes and Related Subsidiaries

Effective Date of 2021 Amendment

Amendment by Pub. L. 117–81 applicable as if included in the enactment of title XVIII of Pub. L. 116–283 as enacted, see section 1701(a)(2) of Pub. L. 117–81, set out in a note preceding section 3001 of this title and note below.

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 a note preceding section 3001 of this title.

Effective Date of 1991 Amendment

Pub. L. 102–190, div. A, title II, §256(a)(2), Dec. 5, 1991, 105 Stat. 1330, provided that:

"(A) Paragraph (1) of subsection (d) of section 2367 of title 10, United States Code [now 10 U.S.C. 4126], as added by paragraph (1), shall take effect with respect to the budget submitted for fiscal year 1994.

"(B) Paragraph (2) of such subsection shall take effect with respect to fiscal year 1992."

Termination of Reporting Requirements

For termination, effective Dec. 31, 2021, of provisions in subsec. (d) of this section requiring submittal of annual report to Congress, see section 1061 of Pub. L. 114–328, set out as a note under section 111 of this title.

Pilot Program on Disclosure of Certain Sensitive Information to Federally Funded Research and Development Centers

Pub. L. 114–328, div. A, title II, §235, Dec. 23, 2016, 130 Stat. 2064, which authorized the Secretary of Defense to carry out a pilot program on disclosure of certain sensitive information to federally funded research and development centers of the Department of Defense, was repealed by Pub. L. 118–159, div. A, title VIII, §811(a)(1)(E), Dec. 23, 2024, 138 Stat. 1979.

§4127. Defense Innovation Unit

(a) Establishment.—There is established in the Department of Defense a Defense Innovation Unit (referred to in this section as the "Unit").

(b) Director and Deputy Director.—There is a Director of the Unit who shall be appointed by the Secretary of Defense from among persons with substantial experience in innovation and commercial technology, as determined by the Secretary.

(c) Authority of Director.—The Director is the head of the Unit. The Director—

(1) shall serve as a principal staff assistant to the Secretary of Defense on matters within the responsibility of the Unit;

(2) shall report directly to the Secretary without intervening authority; and

(3) may communicate views on matters within the responsibility of the Unit directly to the Secretary without obtaining the approval or concurrence of any other official within the Department of Defense.

(d) Responsibilities.—The Unit shall have the following responsibilities:

(1) Seek out, identify, and support development of and experimentation with commercial technologies that have the potential to be implemented within the Department of Defense.

(2) Accelerate the adoption or integration of commercial technologies within the Department of Defense to transform military capacity and capabilities.

(3) Serve as the principal liaison between the Department of Defense and individuals and entities in the national security innovation base, including entrepreneurs, startups, commercial technology companies, and venture capital sources.

(4) Carry out programs, projects, and other activities to strengthen the national security innovation base.

(5) Coordinate and harmonize the activities of other organizations and elements of the Department of Defense on matters relating to commercial technologies, dual use technologies, and the innovation of such technologies.

(6) Coordinate and advise efforts among elements of the Department of Defense on matters relating to the development, procurement, and fielding of nontraditional capabilities.

(7) Coordinate with the Joint Staff and the commanders of the combatant commands to identify operational challenges that have the potential to be addressed through the use of nontraditional capabilities, including dual-use technologies, that are being developed and financed in the commercial sector.

(8) Using funds made available to the Unit—

(A) select projects to be carried out by one or more of the service-level innovation organizations;

(B) allocate funds to service-level innovation organizations to carry out such projects; and

(C) monitor the execution of such projects by the service-level innovation organizations.

(9) Serve as the principal liaison between the Department of Defense, nontraditional defense contractors, investors in nontraditional defense companies, and departments and agencies of the Federal Government pursing ¹ nontraditional capabilities similar to those pursued by the Department.

(10) Lead engagement with industry, academia, and other nongovernment entities to develop—

(A) domestic capacity with respect to innovative, commercial, and dual-use technologies and the use of nontraditional defense contractors; and

(B) the capacity of international allies and partners of the United States with respect to such technologies and the use of such contractors.

(11) Carry out such other activities as the Secretary of Defense determines appropriate.

(e) Support for Multi-stakeholder Partnerships.—

(1) The Director shall identify and support multi-stakeholder research and innovation partnerships that—

(A) have the potential to generate technologies, processes, products, or other solutions that address national defense or security needs; and

(B) have as an objective the technology transfer or commercialization of the work product generated by the partnership, which may include work product that incorporates Government-developed intellectual property licensed to the partnership in accordance with paragraph (3).

(2) Support provided by the Director to a multi-stakeholder research and innovation partnership under this subsection may include—

(A) providing funding or other resources to the partnership;

(B) participating in the partnership;

(C) providing technical and technological advice and guidance to the partnership;

(D) suggesting and introducing other participants for inclusion in the partnership;

(E) providing the partnership with insight into desired solutions for defense and security needs; and

(F) such other forms of support as the Director determines appropriate.

(3) To the extent the Director determines appropriate, the Director shall seek to actively inform potential participants in multi-stakeholder research and innovation partnerships of the availability of Government-developed intellectual property that may be licensed to the partnership.

(4) On an annual basis, the Director shall submit to the Secretary of Defense and the congressional defense committees a report on the activities, advances, outcomes, and work product of the multi-stakeholder research and innovation partnerships supported under this subsection.

(f) Definitions.—In this section:

(1) The term "multi-stakeholder research and innovation partnership" means a partnership composed of any combination of two or more of the following:

(A) Universities, colleges, or other institutions of higher education with research and innovation capability.

(B) Non-profit organizations that provide policy, research, outreach, operations, organizational, management, testing, evaluation, technology transfer, legal, financial, or advocacy expertise.

(C) For-profit commercial enterprises that may be publicly or privately owned, early stage or mature, and incorporated or operating by another ownership structure.

(D) Departments or agencies of the Federal Government with expertise, operations, or resources related to the objectives of the multi-stakeholder research and innovation partnership.

(2) The term "nontraditional capability" means a solution to an operational challenge that can significantly leverage commercial innovation or external capital with minimal dependencies on fielded systems.

(3) The term "nontraditional defense contractor" has the meaning given that term in section 3014 of this title.

(Added Pub. L. 118–31, div. A, title IX, §913(a)(1), Dec. 22, 2023, 137 Stat. 365; amended Pub. L. 118–159, div. A, title XVII, §1701(a)(43), Dec. 23, 2024, 138 Stat. 2206.)

Editorial Notes

Amendments

2024—Pub. L. 118–159 substituted "Defense Innovation Unit" for "Defense innovation unit" in section catchline.

Statutory Notes and Related Subsidiaries

Effective Date; Implementation

Section effective 180 days after Dec. 22, 2023, with additional implementation requirements, see section 913(b)(1), (2) of Pub. L. 118–31, set out as notes under section 1766 of this title.

¹ So in original. Probably should be "pursuing".

§4128.¹ Laboratory Quality Enhancement Program

(a) Program Required.—(1) The Secretary of Defense, acting through the Under Secretary of Defense for Research and Engineering, shall carry out a program under which the Secretary shall establish the panels described in subsection (b) and direct such panels—

(A) to review and make recommendations to the Secretary with respect to—

(i) existing policies and practices affecting the science and technology reinvention laboratories to improve the mission effectiveness of such laboratories;

(ii) new initiatives proposed by the science and technology reinvention laboratories; and

(iii) new interpretations of existing provisions of law that would enhance the ability of a director of a science and technology reinvention laboratory to manage the laboratory and discharge the mission of the laboratory;

(B) to support implementation of current and future initiatives affecting the science and technology reinvention laboratories; and

(C) to conduct assessments or data analysis on the effectiveness of the authorities granted to the science and technology reinvention laboratories and such other issues as the Secretary determines to be appropriate.

(2) The program carried out pursuant to paragraph (1) shall be known as the "Laboratory Quality Enhancement Program".

(b) Panels.—The panels described in this subsection are the following:

(1) A panel on personnel, workforce development, and talent management.

(2) A panel on facilities, equipment, and infrastructure.

(3) A panel on research strategy, technology transfer, and industry and university partnerships.

(4) A panel on governance and oversight processes.

(c) Composition of Panels.—(1) Each panel described in paragraphs (1) through (3) of subsection (b) may be composed of subject matter and technical management experts from—

(A) laboratories and research centers of the Army, Navy, and Air Force;

(B) appropriate Defense Agencies;

(C) the Office of the Under Secretary of Defense for Research and Engineering; and

(D) such other entities as the Secretary determines to be appropriate.

(2) The panel described in subsection (b)(4) shall be composed of—

(A) at least one member from each of the science and technology reinvention laboratories; and

(B) such other members as the Secretary determines to be appropriate.

(d) Governance of Panels.—(1) The chairperson of each panel established pursuant to subsection (a) shall be selected by the members of the respective panel.

(2) Each panel, in coordination with the Under Secretary of Defense for Research and Engineering, shall transmit to the Science and Technology Executive Committee of the Department of Defense such information or findings on topics requiring decision or approval as the panel considers appropriate.

(e) Interpretation of Provisions of Law.—(1) The Under Secretary of Defense for Research and Engineering, acting under the guidance of the Secretary, shall issue regulations regarding the meaning, scope, implementation, and applicability of any provision of a statute relating to a science and technology reinvention laboratory.

(2) In interpreting or defining under paragraph (1), the Under Secretary shall, to the degree practicable, emphasize providing the maximum operational flexibility to the directors of the science and technology reinvention laboratories to discharge the missions of their laboratories.

(3) In interpreting or defining under paragraph (1), the Under Secretary shall, to the extent practicable, consult and coordinate with the secretaries of the military departments and such other agencies or entities as the Under Secretary considers relevant on any proposed revision to regulations under paragraph (1).

(4) In interpreting or defining under paragraph (1), the Under Secretary shall seek recommendations from the panel described in subsection (b)(4).

(f) Science and Technology Reinvention Laboratory Defined.—In this section, the term "science and technology reinvention laboratory" means a Department of Defense laboratory designated as a Department of Defense science and technology reinvention laboratory under section 4121 of this title.

(Added Pub. L. 118–159, div. A, title II, §217(a), Dec. 23, 2024, 138 Stat. 1825.)

Prior Provisions

Provisions similar to those in this section were contained in Pub. L. 114–328, div. A, title II, §211, Dec. 23, 2016, 130 Stat. 2046, as amended by Pub. L. 115–91, div. A, title II, §218(a), (b)(1), Dec. 12, 2017, 131 Stat. 1329, 1330; Pub. L. 117–81, div. A, title II, §215(d)(6), Dec. 27, 2021, 135 Stat. 1594, which was set out in a note preceding section 4121 of this title, prior to repeal by Pub. L. 118–159, div. A, title II, §217(b), Dec. 23, 2024, 138 Stat. 1827.

¹ Another section 4128 is set out after this section.

§4128.¹ Joint Federated Assurance Center

(a) Establishment.—There is in the Office of the Under Secretary of Defense for Research and Engineering a Joint Federated Assurance Center (referred to in this section as the "Center").

(b) Purpose.—The purpose of the Center shall be to serve as a joint, Department-wide federation of organizations and capabilities to support the assurance needs of the Department of Defense by ensuring, pursuant to policies related to hardware and software assurance and supply chain risk management, that the software and hardware developed, acquired, maintained, and used by the Department are free from intentional and unintentional vulnerability during the life-cycle of development and deployment of assured, trustworthy defense systems.

(c) Governance.—

(1) The Center shall be governed by an Executive Steering Group. The Executive Steering Group shall continually evaluate the Center's capabilities to support the hardware and software assurance needs of the Department.

(2) The Executive Steering Group shall be composed of one or more representatives from each of the organizations that comprise the Center.

(3) The Under Secretary of Defense for Research and Engineering and the Under Secretary of Defense for Acquisition and Sustainment shall serve as co-Chairpersons of the Executive Steering Group.

(d) Duties.—The duties of the Center are as follows:

(1) Providing knowledge management capabilities for hardware and software assurance for the Department.

(2) Providing Department-wide visibility on strategy, use cases, procurement, investment, and other relevant activities to aggregate, to the extent practicable, assurance tool purchases by the Department.

(3) Developing and standardizing policies, procedures, competencies, risk assessment methodologies, and independent validation and verification test capabilities—

(A) to support timely and cost-effective fielding of current and future technologies to the Department;

(B) to ensure sustainment of enduring capability needs across the life-cycle of Department of Defense programs and determine the sustainment factors related to the assurance of future hardware and software systems;

(C) to increase efficiencies across Department of Defense programs through the use of emerging assurance technologies; and

(D) to leverage economies of scale through coordinated acquisition and use of hardware and software assurance technologies.

(4) Promoting assurance capabilities for hardware and software assurance—

(A) to mature assessment criteria and enable scalable deployment of commercial best practices, such as through the fostering and maturation of evidence-based assurance of trusted defense microelectronics system needs, with emphasis on commercial security protocols that are transferable to defense applications;

(B) to scale the Center for Department-wide access, through the resourcing of adequate personnel to address standardization and automation of data collection and analysis;

(C) to utilize data from commercial assurance processes to support the development of Department hardware and software that meet standards, applications, and requirements, including through comparative analysis and data modeling;

(D) to seek and apply commercial best practices, where practicable, through industry collaboration; and

(E) to develop and align Department policy, investments, and activities with commercial best practices, to the extent practicable.

(5) For contracts for application-specific integrated circuits designed by defense industrial base contractors, develop guidance for—

(A) the consideration of evidence-based assurance processes and techniques that are included in the contract data requirements list, to the extent practicable;

(B) the use of commercial best practices, as applicable, for confidentiality, integrity and availability; and

(C) the development of a library of certified third-party intellectual property for reuse, including streamlining legal mechanisms for data collection and sharing, and enhanced use of automation technology to achieve efficiency.

(6) The assessment, creation, prototyping, maturation, and maintenance of relevant assurance practices, including the validation and maturation of evidence based assurance methods, for the development, procurement, and deployment of hardware and software assurance tools and processes, including—

(A) development and assessment of validation methods for such processes and techniques, in coordination with the developmental and operational test and evaluation community, as the Executive Steering Group determines necessary;

(B) development and assessment of threat models that comprehensively characterize the threat to microelectronics confidentiality, integrity, and availability across the entire supply chain, and the design, production, packaging, and deployment cycle to support risk management and risk mitigation; and

(C) support development of guides to inform use and decision-making by program evaluators, program offices, and industry to meet software and hardware assurance requirements.

(e) Revised Charter.—Not later than 180 days after the date of the enactment of this section, the Secretary of Defense shall issue a revised charter for the Center. The charter shall set forth—

(1) the role and authorities of the Center and the Executive Steering Group;

(2) the requirement of the Center to establish guidelines for the development of improved software code vulnerability analysis and testing tools;

(3) the requirement of the Center to establish guidelines for the development of improved hardware vulnerability testing and protection tools; and

(4) the manner in which the Center will connect to the Department's major governance and resourcing processes to ensure the continuation of Center duties.

(Added Pub. L. 118–159, div. A, title IX, §922(a), Dec. 23, 2024, 138 Stat. 2037.)

Editorial Notes

References in Text

The date of the enactment of this section, referred to in subsec. (e), is the date of enactment of Pub. L. 118–159, which was approved Dec. 23, 2024.

Prior Provisions

Provisions requiring the establishment of a joint federation of capabilities to support the trusted defense system needs of the Department were contained in Pub. L. 113–66, div. A, title IX, §937, Dec. 26, 2013, 127 Stat. 834, as amended by Pub. L. 114–92, div. A, title II, §231, Nov. 25, 2015, 129 Stat. 778, which was set out in a note under section 2224 of this title, prior to repeal by Pub. L. 118–159, div. A, title IX, §922(c), Dec. 23, 2024, 138 Stat. 2039.

¹ Another section 4128 is set out preceding this section.

CHAPTER 305—UNIVERSITIES

        

Editorial Notes

Codification

Pub. L. 116–283, div. A, title XVIII, §1843(a), Jan. 1, 2021, 134 Stat. 4244, initially enacted chapter 305 of this title, consisting of sections 4103, 4111, and 4112, which was to become effective Jan. 1, 2022. However, Pub. L. 117–81, div. A, title XVII, §1701(u)(4)(A), (5)(A), Dec. 27, 2021, 135 Stat. 2153, repealed section 1843(a), and enacted a new section 1844(a), of Pub. L. 116–283, effective as if included therein, which eliminated the initial chapter 305 and enacted the current one.

Statutory Notes and Related Subsidiaries

Support for Protection of Sensitive Research Performed on Behalf of the Department of Defense

Pub. L. 118–31, div. A, title II, §221, Dec. 22, 2023, 137 Stat. 188, provided that:

"(a) In General.—The Secretary of Defense, acting through the Under Secretary of Defense for Research and Engineering, may enter into contracts or other agreements with one or more eligible entities to assist institutions of higher education in protecting sensitive research performed on behalf of the Department of Defense.

"(b) Activities.—An eligible entity that enters into a contract or other agreement with the Secretary of Defense under subsection (a) shall carry out activities to assist institutions of higher education in protecting sensitive research performed on behalf of the Department of Defense. Such activities may include—

"(1) conducting effective due diligence in vetting visiting scholars;

"(2) assisting institutions in meeting applicable research security requirements, including through the use of common procedures and practices and shared infrastructure, as appropriate;

"(3) providing training to employees and offices of the institution that have responsibilities relating to research security; and

"(4) providing advice and assistance to institutions in establishing and maintaining research security programs.

"(c) Considerations.—In selecting an entity to receive a contract or other agreement under subsection (a), the Secretary of Defense shall consider the following:

"(1) Geographic diversity and the extent to which the entity is able to maximize coverage of different regions of the United States.

"(2) Any ratings of the entity made by the Defense Counterintelligence and Security Agency as part of the Agency's annual security vulnerability assessment ratings.

"(3) Whether and to what extent the entity uses best practices for research security as outlined by the National Institute of Standards and Technology.

"(4) The entity's demonstrated excellence in security programs, including receipt of awards for excellence in counterintelligence and outstanding achievement in industrial security.

"(d) Performance Metrics.—The Secretary of Defense shall establish metrics to measure the performance of each entity with which the Secretary enters into a contract or other agreement under subsection (a).

"(e) Notification and Report.—For any year in which the Secretary of Defense exercises the authority provided under subsection (a), the Secretary shall submit to the congressional defense committees [Committees on Armed Services and Appropriations of the Senate and the House of Representatives] a report that—

"(1) identifies each eligible entity with which the Secretary entered into a contract or other agreement under such subsection; and

"(2) evaluates the performance of the entity.

"(f) Eligible Entity Defined.—In this section, the term 'eligible entity' means—

"(1) an entity the Secretary of Defense determines to be eligible to participate in the activities authorized under this section; or

"(2) a consortium composed of two or more such entities."

Support to Covered Educational Institutions

Pub. L. 118–31, div. A, title II, §227(f), (g), Dec. 22, 2023, 137 Stat. 198, provided that:

"(f) Support to Covered Educational Institutions.—

"(1) In general.—The Under Secretary of Defense for Research and Engineering may establish a program to award contracts, grants, or other agreements on a competitive basis to a covered educational institution, and to perform other appropriate activities, for the purposes described in paragraph (2).

"(2) Purposes.—The purposes described in this paragraph are the following:

"(A) Developing the capability, including workforce and research infrastructure capabilities, for covered educational institutions to more effectively compete for Federal engineering, applied research, commercialization, and workforce development funding opportunities.

"(B) Improving the capability of covered educational institutions to—

"(i) recruit and retain research faculty;

"(ii) participate in appropriate personnel exchange programs; and

"(iii) participate in appropriate educational and career development activities.

"(C) Any other purposes the Under Secretary determines appropriate for enhancing the engineering, applied research, commercialization, and development capabilities of covered educational institutions.

"(g) Definitions.—In this section:

"(1) Covered educational institution.—The term 'covered educational institution' means—

"(A) a mining, metallurgical, geological, or mineral engineering program—

"(i) accredited by a non-governmental organization that accredits post-secondary education programs in applied and natural science, engineering technology, and computing; and

"(ii) located at an institution of higher education; or

"(B) any other post-secondary educational institution with a geology or engineering program or department that has experience in mining research or work with the mining industry.

"(2) Critical materials.—The term 'critical materials' means materials designated as strategic and critical under section 3(a) of the Strategic and Critical Materials Stock Piling Act (50 U.S.C. 98b(a)).

"(3) Institution of higher education.—For purposes of paragraph (1), the term 'institution of higher education' has the meaning given in section 101 of the Higher Education Act of 1965 (20 U.S.C. 1001)."

Infrastructure To Support Research, Development, Test, and Evaluation Missions

Pub. L. 116–92, div. A, title II, §252, Dec. 20, 2019, 133 Stat. 1285, as amended by Pub. L. 117–81, div. A, title II, §215(d)(9), Dec. 27, 2021, 135 Stat. 1594, provided that:

"(a) Master Plan Required.—The Secretary of Defense, acting through the Under Secretary of Defense for Research and Engineering and in coordination with the Secretaries of the military departments, shall develop and implement a master plan that addresses the research, development, test, and evaluation infrastructure and modernization requirements of the Department of Defense, including the science and technology reinvention laboratories and the facilities of the Major Range and Test Facility Base.

"(b) Elements.—The master plan required under subsection (a) shall include, with respect to the research, development, test, and evaluation infrastructure of the Department of Defense, the following:

"(1) A summary of deficiencies in the infrastructure, by location, and the effect of the deficiencies on the ability of the Department—

"(A) to meet current and future military requirements identified in the National Defense Strategy;

"(B) to support science and technology development and acquisition programs; and

"(C) to recruit and train qualified personnel.

"(2) A summary of existing and emerging military research, development, test, and evaluation mission areas, by location, that require modernization investments in the infrastructure—

"(A) to improve operations in a manner that may benefit all users;

"(B) to enhance the overall capabilities of the research, development, test, and evaluation infrastructure, including facilities and resources;

"(C) to improve safety for personnel and facilities; and

"(D) to reduce the long-term cost of operation and maintenance.

"(3) Identification of specific infrastructure projects that are required to address the infrastructure deficiencies identified under paragraph (1) or to support the existing and emerging mission areas identified under paragraph (2).

"(4) For each project identified under paragraph (3)—

"(A) a description of the scope of work;

"(B) a cost estimate;

"(C) a summary of the plan for the project;

"(D) an explanation of the level of priority that will be given to the project; and

"(E) a schedule of required infrastructure investments.

"(5) A description of how the Department, including each military department concerned, will carry out the infrastructure projects identified in paragraph (3) using the range of authorities and methods available to the Department, including—

"(A) military construction authority under section 2802 of title 10, United States Code;

"(B) unspecified minor military construction authority under section 2805(a) of such title;

"(C) laboratory revitalization authority under section 2805(d) of such title;

"(D) the authority to carry out facility repair projects, including the conversion of existing facilities, under section 2811 of such title;

"(E) the authority provided under the Defense Laboratory Modernization Pilot Program under section 2803 of the National Defense Authorization Act for Fiscal Year 2016 (Public Law 114–92; 10 U.S.C. 2358 note [now 10 U.S.C. 4121 note prec.]);

"(F) methods that leverage funding from entities outside the Department, including public-private partnerships, enhanced use leases and real property exchanges;

"(G) the authority to conduct commercial test and evaluation activities at a Major Range and Test Facility Installation, under section 2681 of title 10, United States Code [now 10 U.S.C. 4175]; and

"(H) any other authorities and methods determined to be appropriate by the Secretary of Defense.

"(6) Identification of any regulatory or policy barriers to the effective and efficient implementation of the master plan.

"(c) Consultation and Coordination.—In developing and implementing the plan required under subsection (a), the Secretary of Defense shall—

"(1) consult with existing and anticipated customers and users of the capabilities of the Major Range and Test Facility Base and science and technology reinvention laboratories;

"(2) ensure consistency with the science and technology roadmaps and strategies of the Department of Defense and the Armed Forces; and

"(3) ensure consistency with the strategic plan for test and evaluation resources required by section 196(d) of title 10, United States Code [now 10 U.S.C. 4173(d)].

"(d) Submittal to Congress.—Not later than January 1, 2021, the Secretary of Defense, in coordination with the Secretaries of the military departments, shall submit to the congressional defense committees [Committees on Armed Services and Appropriations of the Senate and the House of Representatives] the master plan developed under subsection (a).

"(e) Research, Development, Test, and Evaluation Infrastructure Defined.—In this section, the term 'research, development, test, and evaluation infrastructure' means the infrastructure of—

"(1) the science and technology reinvention laboratories (as designated under section 4121(b) of title 10, United States Code);

"(2) the Major Range and Test Facility Base (as defined in section 2358a(f)(3) of title 10, United States Code [now 10 U.S.C. 4091(f)(3)]); and

"(3) other facilities that support the research development, test, and evaluation activities of the Department."

Pilot Program for the Enhancement of the Research, Development, Test, and Evaluation Centers of the Department of Defense

Pub. L. 114–328, div. A, title II, §233, Dec. 23, 2016, 130 Stat. 2061, as amended by Pub. L. 115–91, div. A, title II, §235, title X, §1081(d)(2), Dec. 12, 2017, 131 Stat. 1341, 1600; Pub. L. 116–92, div. A, title XVII, §1731(d), Dec. 20, 2019, 133 Stat. 1816; Pub. L. 116–283, div. A, title II, §216(a), (b), Jan. 1, 2021, 134 Stat. 3460; Pub. L. 117–81, div. A, title II, §§215(d)(7), 219, Dec. 27, 2021, 135 Stat. 1594, 1597, provided that:

"(a) Pilot Program Required.—

"(1) In general.—The Secretary of Defense and the Secretaries of the military departments shall jointly carry out a pilot program to demonstrate methods for the more effective development of technology and management of functions at eligible centers.

"(2) Eligible centers.—For purposes of the pilot program, the eligible centers are—

"(A) the science and technology reinvention laboratories, as designated under section 4121(b) of title 10, United States Code;

"(B) the test and evaluation centers which are activities specified as part of the Major Range and Test Facility Base in Department of Defense Directive 3200.11; and

"(C) the Defense Advanced Research Projects Agency.

"(b) Selection.—

"(1) In general.—The Secretaries described in subsection (a) shall ensure that participation in the pilot program includes—

"(A) the Defense Advanced Research Projects Agency; and

"(B) in accordance with paragraph (2)—

"(i) five additional eligible centers described in subparagraph (A) of subsection (a)(2) from each of the military departments; and

"(ii) five additional eligible centers described in subparagraph (B) of such subsection from each of the military departments.

"(2) Selection procedures.—(A) The head of an eligible center described in subparagraph (A) or (B) of subsection (a)(2) seeking to participate in the pilot program shall submit to the appropriate reviewer an application therefor at such time, in such manner, and containing such information as the appropriate reviewer shall specify.

"(B) Not later than 120 days after the date of such submittal, each appropriate reviewer shall—

"(i) evaluate each application received under subparagraph (A); and

"(ii) approve or disapprove of the application.

"(C) If the head of an eligible center submits an application under subparagraph (A) in accordance with the requirements specified by the appropriate reviewer for purposes of such subparagraph and the appropriate reviewer neither approves nor disapproves such application pursuant to subparagraph (B)(ii) on or before the date that is 120 days after the date of such submittal, such eligible center shall be considered a participant in the pilot program.

"(D) For purposes of this paragraph, the appropriate reviewer is—

"(i) in the case of an eligible center described in subparagraph (A) of subsection (a)(2), the Laboratory Quality Enhancement Program; and

"(ii) in the case of an eligible center described in subparagraph (B) of such subsection, the Director of the Test Resource Management Center.

"(c) Participation in Program.—

"(1) In general.—Subject to paragraph (2), the head of each eligible center selected under subsection (b)(1) shall submit to the Assistant Secretary concerned a proposal on, and implement, alternative and innovative methods of effective management and operations of eligible centers, rapid project delivery, support, experimentation, prototyping, and partnership with universities and private sector entities to—

"(A) generate greater value and efficiencies in research and development activities;

"(B) enable more efficient and effective operations of supporting activities, such as—

"(i) facility management, construction, and repair;

"(ii) business operations;

"(iii) personnel management policies and practices; and

"(iv) intramural and public outreach; and

"(C) enable more rapid deployment of warfighter capabilities.

"(2) Implementation.—(A) The head of an eligible center described in subparagraph (A) or (B) of subsection (a)(2) shall implement each method proposed under paragraph (1) unless such method is disapproved in writing by the Assistant Secretary concerned within 60 days of receiving a proposal from an eligible center selected under subsection (b)(1) by such Assistant Secretary.

"(B) The Director of the Defense Advanced Research Projects Agency shall implement each method proposed under paragraph (1) unless such method is disapproved in writing by the Deputy Secretary of Defense or a designee of the Deputy Secretary within 60 days of receiving a proposal from the Director.

"(C) In this paragraph, the term 'Assistant Secretary concerned' means—

"(i) the Assistant Secretary of the Air Force for Acquisition [now Assistant Secretary of the Air Force for Acquisition, Technology, and Logistics], with respect to matters concerning the Air Force;

"(ii) the Assistant Secretary of the Army for Acquisition, Logistics, and Technology, with respect to matters concerning the Army; and

"(iii) the Assistant Secretary of the Navy for Research, Development, and Acquisition, with respect to matters concerning the Navy.

"(d) Waiver Authority for Demonstration and Implementation.—Until the termination of the pilot program under subsection (e), the head of an eligible center selected under subsection (b)(1) may waive any regulation, restriction, requirement, guidance, policy, procedure, or departmental instruction that would affect the implementation of a method proposed under subsection (c)(1), unless such implementation would be prohibited by a provision of a Federal statute or common law.

"(e) Termination.—The pilot program shall terminate on September 30, 2027.

"(f) Report.—

"(1) In general.—Not later than one year after the date of the enactment of the William M. (Mac) Thornberry National Defense Authorization Act for Fiscal Year 2021 [Pub. L. 116–283; approved Jan. 1, 2021], the Secretary of Defense shall submit to the congressional defense committees [Committees on Armed Services and Appropriations of the Senate and the House of Representatives] a report on the status of the pilot program.

"(2) Contents.—The report required by paragraph (1) shall include the following:

"(A) Identification of the eligible centers participating in the pilot program.

"(B) Identification of the eligible centers whose applications to participate in the pilot program were disapproved under subsection (b), including justifications for such disapprovals.

"(C) A description of the methods implemented pursuant to subsection (c).

"(D) A description of the methods that were proposed pursuant to paragraph (1) of subsection (c) but disapproved under paragraph (2) of such subsection.

"(E) An assessment of how methods implemented pursuant to subsection (c) have contributed to the objectives identified in subparagraphs (A), (B), and (C) of paragraph (1) of such subsection.

"(F) With respect to any military department not participating in the pilot program, an explanation for such nonparticipation, including identification of—

"(i) any issues that may be preventing such participation; and

"(ii) any offices or other elements of the Department of Defense that may be responsible for the delay in participation."

[Pub. L. 116–283, div. A, title II, §216(b), Jan. 1, 2021, 134 Stat. 3460, provided in part that the amendment made to section 233(c)(2)(C)(ii) of Pub. L. 114–328, set out above, by section 216(b) of Pub. L. 116–283 is effective as of Dec. 23, 2016, and as if included in such section 233(c)(2)(C)(ii) as enacted.]

[Pub. L. 116–92, §1731(d), and Pub. L. 116–283, §216(b), made identical amendments to section 233(c)(2)(C)(ii) of Pub. L. 114–328, set out above, by substituting "Assistant Secretary of the Army for Acquisition, Logistics, and Technology" for "Assistant Secretary of the Army for Acquisition, Technology, and Logistics", both effective as of Dec. 23, 2016, and as if included in such section as enacted. However, the substitution reflects execution of the amendment made by Pub. L. 116–283 and not by Pub. L. 116–92, as the latter directed amendment of the "National Defense Authorization Act for Fiscal Year 2018", and Pub. L. 114–328 is known as the "National Defense Authorization Act for Fiscal Year 2017".]

§4141. Award of grants and contracts to colleges and universities: requirement of competition

(a) The Secretary of Defense may not make a grant or award a contract to a college or university for the performance of research and development, or for the construction of any research or other facility, unless—

(1) in the case of a grant, the grant is made using competitive procedures; and

(2) in the case of a contract, the contract is awarded in accordance with section 3204 of this title (other than pursuant to subsection (a)(5) of that section).

(b)(1) A provision of law may not be construed as modifying or superseding the provisions of subsection (a), or as requiring funds to be made available by the Secretary of Defense to a particular college or university by grant or contract, unless that provision of law—

(A) specifically refers to this section;

(B) specifically states that such provision of law modifies or supersedes the provisions of this section; and

(C) specifically identifies the particular college or university involved and states that the grant to be made or the contract to be awarded, as the case may be, pursuant to such provision of law is being made or awarded in contravention of subsection (a).

(2) A grant may not be made, or a contract awarded, pursuant to a provision of law that authorizes or requires the making of the grant, or the awarding of the contract, in a manner that is inconsistent with subsection (a) until—

(A) the Secretary of Defense submits to Congress a notice in writing of the intent to make the grant or award the contract; and

(B) a period of 180 days has elapsed after the date on which the notice is received by Congress.

(Added Pub. L. 100–456, div. A, title II, §220(a), Sept. 29, 1988, 102 Stat. 1940, §2361; amended Pub. L. 101–189, div. A, title II, §252(a), (b)(1), (c)(1), Nov. 29, 1989, 103 Stat. 1404, 1405; Pub. L. 101–510, div. A, title XIII, §1311(4), Nov. 5, 1990, 104 Stat. 1669; Pub. L. 103–35, title II, §201(g)(5), May 31, 1993, 107 Stat. 100; Pub. L. 103–160, div. A, title VIII, §821(b), Nov. 30, 1993, 107 Stat. 1704; Pub. L. 103–337, div. A, title VIII, §813, Oct. 5, 1994, 108 Stat. 2816; Pub. L. 104–106, div. A, title II, §264, title XV, §1502(a)(1), Feb. 10, 1996, 110 Stat. 237, 502; Pub. L. 104–201, div. A, title II, §265, Sept. 23, 1996, 110 Stat. 2466; renumbered §4141, Pub. L. 116–283, div. A, title XVIII, §1844(b), as added Pub. L. 117–81, div. A, title XVII, §1701(u)(5)(B), Dec. 27, 2021, 135 Stat. 2154; Pub. L. 116–283, div. A, title XVIII, §§1841(c), 1883(b)(2), Jan. 1, 2021, 134 Stat. 4243, 4294; Pub. L. 117–81, div. A, title XVII, §1701(u)(2)(D), Dec. 27, 2021, 135 Stat. 2151; Pub. L. 118–159, div. A, title XVII, §1701(a)(38), Dec. 23, 2024, 138 Stat. 2205.)

Editorial Notes

Amendments

2024—Subsec. (a)(2). Pub. L. 118–159 substituted "section 3204" for "section 2304" and "subsection (a)(5)" for "subsection (c)(5)".

2021—Pub. L. 116–283, §1844(b), as added by Pub. L. 117–81, §1701(u)(5)(B), renumbered section 2361 of this title as this section.

Pub. L. 116–283, §1841(c), which directed the renumbering of section 2361 of this title as section 4015 instead of this section, was amended generally by Pub. L. 117–81, §1701(u)(2)(D), effective as if included therein, so that such renumbering was no longer directed.

Subsec. (a)(2). Pub. L. 116–283, §1883(b)(2), which directed that each reference in the text of title 10 to a section that was redesignated by title XVIII of Pub. L. 116–283, as such section was in effect before the redesignation, be amended by striking such reference and inserting a reference to the appropriate redesignated section, was not executed with respect to "section 2304", which was redesignated as multiple sections.

1996—Subsec. (c). Pub. L. 104–201 struck out subsec. (c) which read as follows:

"(1) The Secretary of Defense shall submit to the Committee on Armed Services of the Senate and the Committee on National Security of the House of Representatives an annual report on the use of competitive procedures for the award of research and development contracts, and the award of construction contracts, to colleges and universities. Each such report shall include—

"(A) a list of each college and university that, during the period covered by the report, received more than $1,000,000 in such contracts through the use of procedures other than competitive procedures; and

"(B) the cumulative amount of such contracts received during that period by each such college and university.

"(2) Each report under paragraph (1) shall cover the preceding fiscal year and shall be submitted not later than February 1 of the fiscal year after the fiscal year covered by the report."

Subsec. (c)(1). Pub. L. 104–106, §1502(a)(1), substituted "Committee on Armed Services of the Senate and the Committee on National Security of the House of Representatives" for "Committees on Armed Services of the Senate and House of Representatives".

Subsec. (c)(2). Pub. L. 104–106, §264, substituted "preceding fiscal year" for "preceding calendar year" and "the fiscal year after the fiscal year" for "the year after the year".

1994—Subsec. (c). Pub. L. 103–337 added subsec. (c).

1993—Subsec. (b)(2). Pub. L. 103–35 substituted "inconsistent" for "inconsisent".

Subsec. (c). Pub. L. 103–160 struck out subsec. (c) which read as follows:

"(1) The Secretary of Defense shall submit to the Committees on Armed Services of the Senate and House of Representatives an annual report on the use of competitive procedures for the award of research and development contracts, and the award of construction contracts, to colleges and universities. Each such report shall include—

"(A) a list of each college and university that, during the period covered by the report, received more than $1,000,000 in such contracts through the use of procedures other than competitive procedures; and

"(B) the cumulative amount of such contracts received during that period by each such college and university.

"(2) The reports under paragraph (1) shall cover the preceding calendar year and shall be submitted not later than February 1 of the year after the year covered by the report.

"(3) A report is not required under paragraph (1) for any period beginning after December 31, 1993."

1990—Subsec. (c)(1). Pub. L. 101–510, §1311(4)(A), substituted "an annual report" for "a semiannual report" in introductory provisions.

Subsec. (c)(2). Pub. L. 101–510, §1311(4)(B), substituted "the preceding calendar year and shall be submitted not later than February 1 of the year after the year covered by the report" for "the six-month periods ending on June 30 and December 31 of each year. Each such report shall be submitted within 30 days after the end of the period covered by the report".

1989—Subsec. (a). Pub. L. 101–189, §252(a), substituted "unless—" for "unless" and pars. (1) and (2) for "the grant or contract is made or awarded using competitive procedures."

Subsec. (b). Pub. L. 101–189, §252(b)(1), amended subsec. (b) generally. Prior to amendment, subsec. (b) read as follows: "A provision of law enacted after the date of the enactment of this section may not be construed as modifying or superseding the provisions of subsection (a) unless that provision of law specifically refers to this section and specifically states that such provision of law modifies or supersedes the provisions of this section."

Subsec. (c). Pub. L. 101–189, §252(c)(1), added subsec. (c).

Statutory Notes and Related Subsidiaries

Effective Date of 2021 Amendment

Amendment by Pub. L. 117–81 applicable as if included in the enactment of title XVIII of Pub. L. 116–283 as enacted, see section 1701(a)(2) of Pub. L. 117–81, set out in a note preceding section 3001 of this title and note below.

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 a note preceding section 3001 of this title.

Effective Date of 1993 Amendment

Pub. L. 103–160, div. A, title VIII, §821(b), Nov. 30, 1993, 107 Stat. 1704, provided that the amendment made by that section is effective Feb. 1, 1994.

Effective Date of 1989 Amendment

Pub. L. 101–189, div. A, title II, §252(b)(2), Nov. 29, 1989, 103 Stat. 1405, provided that: "Subsection (b) of section 2361 of title 10, United States Code [now 10 U.S.C. 4141(b)], as amended by paragraph (1), applies with respect to any provision of law enacted after September 30, 1989."

Effective Date

Pub. L. 100–456, div. A, title II, §220(c), Sept. 29, 1988, 102 Stat. 1941, provided that: "The limitation specified in section 2361(a) of title 10, United States Code [now 10 U.S.C. 4141(a)] (as added by subsection (a)), on the authority of the Secretary of Defense to make grants and award contracts shall take effect on October 1, 1989."

§4142. Extramural acquisition innovation and research activities

(a) Establishment.—The Secretary of Defense, acting through the Under Secretary of Defense for Acquisition and Sustainment and in coordination with the Under Secretary of Defense for Research and Engineering, shall establish and maintain extramural acquisition innovation and research activities as described in subsection (c), which shall include an acquisition research organization within a civilian college or university that is not owned or operated by the Federal Government that is established to provide and maintain essential research and development capabilities through a long-term strategic relationship with the Department of Defense.

(b) Goals.—The goal of any activity conducted pursuant to this section shall be to provide academic analyses and policy alternatives for innovation in defense acquisition policies and practices to policymakers in the Federal Government by using a variety of means intended to widely disseminate research findings from such an activity, in addition to executing demonstration and pilot programs of innovative acquisition policies and practices.

(c) Activities.—The activities described in this subsection are as follows:

(1) Research on past and current defense acquisition policies and practices, commercial and international best practices, and the application of new technologies and analytical capabilities to improve acquisition policies and practices.

(2) Pilot programs to prototype and demonstrate new acquisition practices for potential transition to wider use in the Department of Defense.

(3) Establishment of data repositories and development of analytical capabilities, in coordination with the Chief Data Officer of the Department of Defense, to enable researchers and acquisition professionals to access and analyze historical data sets to support research and new policy and practice development.

(4) Executive education to—

(A) support acquisition workforce development, including for early career, mid-career, and senior leaders; and

(B) provide appropriate education on acquisition issues to non-acquisition professionals.

(5) On an ongoing basis, a review of the implementation of recommendations contained in relevant Department of Defense and private sector studies on acquisition policies and practices, including—

(A) for recommendations for the enactment of legislation, identify the extent to which the recommendations have been enacted into law by Congress;

(B) for recommendations for the issuance of regulations, identify the extent to which the recommendations have been adopted through the issuance or revision of regulations;

(C) for recommendations for revisions to policies and procedures in the executive branch, identify the extent to which the recommendations have been adopted through issuance of an appropriate implementing directive or other form of guidance; and

(D) for recommendations for the resources required to implement recommendations contained in relevant Department of Defense and private sector studies on acquisition policies and practices.

(6) Engagement with researchers and acquisition professionals in the Department of Defense, as appropriate.

(d) Funding.—Subject to the availability of appropriations, the Secretary may use amounts available in the Defense Acquisition Workforce and Development Account to carry out the requirements of this section.

(e) Annual Report.—Not later than September 30, 2021, and annually thereafter, the Under Secretary of Defense for Acquisition and Sustainment shall submit to the Secretary of Defense and the congressional defense committees a report describing the activities conducted under this section during the previous year.

(Added Pub. L. 116–92, div. A, title VIII, §835(a)(1), Dec. 20, 2019, 133 Stat. 1494, §2361a; renumbered §4142, Pub. L. 116–283, div. A, title XVIII, §1844(b), as added Pub. L. 117–81, div. A, title XVII, §1701(u)(5)(B), Dec. 27, 2021, 135 Stat. 2154; Pub. L. 116–283, div. A, title XVIII, §1842(b), Jan. 1, 2021, 134 Stat. 4244; Pub. L. 117–81, div. A, title XVII, §1701(q)(1), (u)(3)(B), Dec. 27, 2021, 135 Stat. 2148, 2152; Pub. L. 118–159, div. A, title VIII, §835, Dec. 23, 2024, 138 Stat. 1986.)

Editorial Notes

Amendments

2024—Subsec. (a). Pub. L. 118–159, §835(3), substituted "subsection (c)" for "subsection (d)".

Subsecs. (c), (d). Pub. L. 118–159, §835(1), (2), redesignated subsecs. (d) and (e) as (c) and (d), respectively, and struck out former subsec. (c) which authorized the Secretary of Defense to appoint an individual from civilian life to serve as the director for the extramural acquisition innovation and research to serve a term of five years.

Subsec. (e). Pub. L. 118–159, §835(2), (4), redesignated subsec. (f) as (e) and substituted "Under Secretary of Defense for Acquisition and Sustainment" for "Director". Former subsec. (e) redesignated (d).

Subsec. (f). Pub. L. 118–159, §835(2), redesignated subsec. (f) as (e).

2021—Pub. L. 116–283, §1844(b), as added by Pub. L. 117–81, §1701(u)(5)(B), renumbered section 2361a of this title as this section.

Pub. L. 116–283, §1842(b), which directed the renumbering of section 2361a of this title as section 4063 instead of this section, was amended by Pub. L. 117–81, §1701(q)(1), (u)(3)(B), effective as if included therein, so that such renumbering was no longer directed.

Statutory Notes and Related Subsidiaries

Effective Date of 2021 Amendment

Amendment by Pub. L. 117–81 applicable as if included in the enactment of title XVIII of Pub. L. 116–283 as enacted, see section 1701(a)(2) of Pub. L. 117–81, set out in a note preceding section 3001 of this title and note below.

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 a note preceding section 3001 of this title.

Implementation of Section

Pub. L. 116–92, div. A, title VIII, §835(a)(3), Dec. 20, 2019, 133 Stat. 1496, provided that:

"(A) Deadline.—Not later than March 1, 2020, the Secretary of Defense shall establish the extramural acquisition innovation and research activities required by section 2361a of title 10, United States Code [now 10 U.S.C. 4142] (as added by this subsection).

"(B) Report.—

"(i) In general.—Not later than January 1, 2021, the Director of the extramural acquisition innovation and research activities appointed under such section shall submit to the Secretary of Defense a report setting forth a plan, proposed budget, and schedule for execution of such activities.

"(ii) Transmittal.—Not later than February 1, 2021, the Secretary of Defense shall transmit the report required under clause (i), together with whatever comments the Secretary considers appropriate, to the Committees on Armed Services of the Senate and the House of Representatives."

Records of the Section 809 Panel

Pub. L. 116–92, div. A, title VIII, §835(b), Dec. 20, 2019, 133 Stat. 1496, provided that:

"(1) Transfer and maintenance of records.—Not later than March 1, 2020, the records of the Section 809 Panel shall be transferred to, and shall be maintained by, the Defense Technical Information Center.

"(2) Status of records.—Working papers, records of interview, and any other draft work products generated for any purpose by the Section 809 Panel shall be covered by the deliberative process privilege exemption under paragraph (5) of section 552(b) of title 5, United States Code.

"(3) Availability.—To the maximum extent practicable, the Secretary shall make the records available to support activities conducted by the research organization described under section 2361a of title 10, United States Code [now 10 U.S.C. 4142] (as added by subsection (a)).

"(4) Section 809 panel defined.—In this subsection, the term 'Section 809 Panel' means the panel established by the Secretary of Defense pursuant to section 809 of the National Defense Authorization Act for Fiscal Year 2016 (Public Law 114–92) [129 Stat. 889]."

§4143. Research and development laboratories: contracts for services of university students

(a) Subject to the availability of appropriations for such purpose, the Secretary of Defense may procure by contract under the authority of this section the temporary or intermittent services of students at institutions of higher learning for the purpose of providing technical support at defense research and development laboratories. Such contracts may be made directly with such students or with nonprofit organizations employing such students.

(b) Students providing services pursuant to a contract made under subsection (a) shall be considered to be employees for the purposes of chapter 81 of title 5, relating to compensation for work injuries, and to be employees of the government for the purposes of chapter 171 of title 28, relating to tort claims. Such students who are not otherwise employed by the Federal Government shall not be considered to be Federal employees for any other purpose.

(c) The Secretary of Defense shall prescribe regulations to carry out this section. Such regulations shall include definitions for the purposes of this section of the terms "student", "institution of higher learning", and "nonprofit organization".

(Added Pub. L. 97–86, title VI, §603(a), Dec. 1, 1981, 95 Stat. 1110, §2360; renumbered §4143, Pub. L. 116–283, div. A, title XVIII, §1844(b), as added Pub. L. 117–81, div. A, title XVII, §1701(u)(5)(B), Dec. 27, 2021, 135 Stat. 2154; Pub. L. 116–283, div. A, title XVIII, §1843(b)(2), Jan. 1, 2021, 134 Stat. 4245; Pub. L. 117–81, div. A, title XVII, §1701(u)(4)(A), Dec. 27, 2021, 135 Stat. 2153.)

Editorial Notes

Amendments

2021—Pub. L. 116–283, §1844(b), as added by Pub. L. 117–81, §1701(u)(5)(B), renumbered section 2360 of this title as this section.

Pub. L. 116–283, §1843(b)(2), which directed the renumbering of section 2360 of this title as section 4112 instead of this section, was repealed by Pub. L. 117–81, §1701(u)(4)(A), effective as if included therein, so that such renumbering was no longer directed.

Statutory Notes and Related Subsidiaries

Effective Date of 2021 Amendment

Amendment by Pub. L. 117–81 applicable as if included in the enactment of title XVIII of Pub. L. 116–283 as enacted, see section 1701(a)(2) of Pub. L. 117–81, set out in a note preceding section 3001 of this title and note below.

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 a note preceding section 3001 of this title.

§4144. Research and educational programs and activities: historically black colleges and universities and minority-serving institutions of higher education

(a) Program Established.—(1) The Secretary of Defense, acting through the Under Secretary of Defense for Research and Engineering and the Secretary of each military department, shall carry out a program to provide assistance to covered educational institutions to assist the Department in defense-related research, development, testing, and evaluation activities.

(2) The Secretary of Defense may not delegate or transfer to an individual outside the Office of the Secretary of Defense the authority regarding the programming or budgeting of the program established by this section that is carried out by the Under Secretary of Defense for Research and Engineering.

(b) Program Objective.—The objective of the program established by subsection (a)(1) is to enhance defense-related research and education at covered educational institutions. Such objective shall be accomplished through initiatives designed to—

(1) enhance the research and educational capabilities of such institutions in areas of importance to national defense, as determined by the Secretary;

(2) encourage the participation of such institutions in the research, development, testing, and evaluation programs and activities of the Department of Defense;

(3) increase the number of graduates from such institutions engaged in disciplines important to the national security functions of the Department of Defense, as determined by the Secretary; and

(4) encourage research and educational collaborations between such institutions and other institutions of higher education, Government defense organizations, and the defense industry.

(c) Assistance Provided.—Under the program established by subsection (a)(1), the Secretary of Defense may provide covered educational institutions with funding or technical assistance, including any of the following:

(1) Support for research, development, testing, evaluation, or educational enhancements in areas important to national defense through the competitive awarding of grants, cooperative agreements, contracts, scholarships, fellowships, or the acquisition of research equipment or instrumentation.

(2) Support to assist in the attraction and retention of faculty in scientific disciplines important to the national security functions of the Department of Defense.

(3) Establishing partnerships between such institutions and defense laboratories, Government defense organizations, the defense industry, and other institutions of higher education in research, development, testing, and evaluation in areas important to the national security functions of the Department of Defense.

(4) Other such non-monetary assistance as the Secretary finds appropriate to enhance defense-related research, development, testing, and evaluation activities at such institutions.

(d) Incentives.—(1) The Secretary of Defense may develop incentives to encourage research and educational collaborations between covered educational institutions and other institutions of higher education.

(2) The Secretary of Defense shall establish goals and incentives to encourage federally funded research and development centers, science and technology reinvention laboratories, and University Affiliated Research Centers funded by the Department of Defense—

(A) to assess the capacity of covered educational institutions to address the research and development needs of the Department through partnerships and collaborations; and

(B) if appropriate, to enter into partnerships and collaborations with such institutions.

(e) Criteria for Funding.—The Secretary of Defense may establish procedures under which the Secretary may limit funding under this section to institutions that have not otherwise received a significant amount of funding from the Department of Defense for research, development, testing, and evaluation programs supporting the national security functions of the Department.

(f) Definition of Covered Educational Institution.—In this section the term "covered educational institution" means—

(1) an institution of higher education eligible for assistance under title III or V of the Higher Education Act of 1965 (20 U.S.C. 1051 et seq.); or

(2) an accredited postsecondary minority institution.

(Added Pub. L. 111–84, div. A, title II, §252(a), Oct. 28, 2009, 123 Stat. 2242, §2362; amended Pub. L. 111–383, div. A, title X, §1075(b)(32), Jan. 7, 2011, 124 Stat. 4370; Pub. L. 112–81, div. A, title II, §219, Dec. 31, 2011, 125 Stat. 1335; Pub. L. 112–239, div. A, title X, §1076(c)(2)(A)(i), Jan. 2, 2013, 126 Stat. 1949; Pub. L. 115–232, div. A, title II, §245, Aug. 13, 2018, 132 Stat. 1700; Pub. L. 116–92, div. A, title II, §214, Dec. 20, 2019, 133 Stat. 1257; renumbered §4144, Pub. L. 116–283, div. A, title XVIII, §1844(b), as added Pub. L. 117–81, div. A, title XVII, §1701(u)(5)(B), Dec. 27, 2021, 135 Stat. 2154; Pub. L. 116–283, div. A, title XVIII, §1838(b), Jan. 1, 2021, 134 Stat. 4242; Pub. L. 117–81, div. A, title II, §220(c), title XVII, §1701(v)(2)(A), Dec. 27, 2021, 135 Stat. 1599, 2154.)

Editorial Notes

References in Text

The Higher Education Act of 1965, referred to in subsec. (f)(1), is Pub. L. 89–329, Nov. 8, 1965, 79 Stat. 1219. Titles III and V of the Act are classified generally to subchapters III (§1051 et seq.) and V (§1101 et seq.), respectively, of chapter 28 of Title 20, Education. For complete classification of this Act to the Code, see Short Title note set out under section 1001 of Title 20 and Tables.

Amendments

2021—Pub. L. 116–283, §1844(b), as added by Pub. L. 117–81, §1701(u)(5)(B), renumbered section 2362 of this title as this section.

Pub. L. 116–283, §1838(b), which directed renumbering section 2362 of this title as section 3904 instead of this section, was amended by Pub. L. 117–81, §1701(v)(2)(A), effective as if included therein, so that such renumbering was no longer directed.

Subsec. (a). Pub. L. 117–81, §220(c)(1), substituted "Under Secretary" for "Assistant Secretary" in pars. (1) and (2).

Subsec. (d). Pub. L. 117–81, §220(c)(2), designated existing provisions as par. (1) and added par. (2).

2019—Subsecs. (d) to (f). Pub. L. 116–92 added subsec. (d) and redesignated former subsecs. (d) and (e) as (e) and (f), respectively.

2018—Subsec. (d). Pub. L. 115–232 substituted "Criteria" for "Priority" in heading and "limit" for "give priority in providing" in text.

2013—Subsec. (a)(1). Pub L. 112–239 substituted "Assistant Secretary of Defense for Research and Engineering" for "Director of Defense Research and Engineering".

2011—Subsec. (a). Pub. L. 112–81, §219(a), designated existing provisions as par. (1) and added par. (2).

Subsec. (b). Pub. L. 112–81, §219(b)(1), substituted "established by subsection (a)(1)" for "established under subsection (a)" in introductory provisions.

Subsec. (c). Pub. L. 112–81, §219(b)(2), substituted "subsection (a)(1)" for "subsection (a)" in introductory provisions.

Subsec. (e)(1). Pub. L. 111–383 substituted "title III or V" for "title III or IV".

Statutory Notes and Related Subsidiaries

Effective Date of 2021 Amendment

Amendment by Pub. L. 117–81 applicable as if included in the enactment of title XVIII of Pub. L. 116–283 as enacted, see section 1701(a)(2) of Pub. L. 117–81, set out in a note preceding section 3001 of this title and Effective Date note below.

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 a note preceding section 3001 of this title.

Outreach to Historically Black Colleges and Universities and Other Minority-Serving Institutions Regarding National Security Innovation Network Programs That Promote Entrepreneurship and Innovation at Institutions of Higher Education

Pub. L. 117–263, div. A, title II, §222, Dec. 23, 2022, 136 Stat. 2479, provided that:

"(a) Pilot Program.—The Under Secretary of Defense for Research and Engineering, acting through the National Security Innovation Network, may carry out a pilot program under which the Under Secretary conducts activities, including outreach and technical assistance, to better connect historically Black colleges and universities and other minority-serving institutions to the commercialization, innovation, and entrepreneurial activities of the Department of Defense.

"(b) Briefing.—Not later than one year after commencing a pilot program under subsection (a), the Under Secretary of Defense for Research and Engineering shall provide to the congressional defense committees [Committees on Armed Services and Appropriations of the Senate and the House of Representatives] a briefing on the program, including—

"(1) an explanation of—

"(A) the results of any outreach efforts conducted under the pilot program;

"(B) the success of the pilot program in expanding National Security Innovation Network programs to historically Black colleges and universities and other minority-serving institutions; and

"(C) any potential barriers to the expansion of the pilot program; and

"(2) recommendations for how the Department of Defense can support historically Black colleges and universities and other minority-serving institutions to enable such institutions to successfully participate in Department of Defense commercialization, innovation, and entrepreneurship programs.

"(c) Termination.—The authority to carry out the pilot program under subsection (a) shall terminate on the date that is five years after the date of the enactment of this Act [Dec. 23, 2022].

"(d) Definitions.—In this section:

"(1) The term 'historically Black college or university' means a part B institution (as defined in section 322 of the Higher Education Act of 1965 (20 U.S.C. 1061)).

"(2) The term 'other minority-serving institution' means an institution of higher education specified in paragraphs (2) through (7) of section 371(a) of the Higher Education Act of 1965 (20 U.S.C. 1067q(a))."

Report and Pilot Program Based on Recommendations Regarding Defense Research Capacity at Historically Black Colleges and Universities and Other Minority-Serving Institutions

Pub. L. 117–263, div. A, title II, §223, Dec. 23, 2022, 136 Stat. 2480, provided that:

"(a) Report Required.—

"(1) In general.—Not later than 180 days after the date of the enactment of this Act [Dec. 23, 2022], the Secretary of Defense shall submit to the congressional defense committees [Committees on Armed Services and Appropriations of the Senate and the House of Representatives] a report on the recommendations set forth in the publication of the National Academies of Sciences, Engineering, and Medicine titled 'Defense Research Capacity at Historically Black Colleges and Universities and Other Minority Institutions: Transitioning from Good Intentions to Measurable Outcomes' and dated April 28, 2022.

"(2) Contents.—The report required under paragraph (1) shall include the following:

"(A) With respect to the recommendations and subrecommendations set forth in the publication described in paragraph (1)—

"(i) a description of each recommendation and subrecommendation the Secretary has implemented as of the date of the report;

"(ii) a description of each recommendation and subrecommendation the Secretary has commenced implementing as of the date of the report, including a justification for determining to commence implementing the recommendation; and

"(iii) a description of each recommendation and subrecommendation the Secretary has not implemented or commenced implementing as of the date of the report and a determination as to whether or not to implement the recommendation.

"(B) For each recommendation or subrecommendation the Secretary determines to implement under subparagraph (A)(iii)—

"(i) a timeline for implementation;

"(ii) a description of any additional resources or authorities required for implementation; and

"(iii) the plan for implementation.

"(C) For each recommendation or subrecommendation the Secretary determines not to implement under subparagraph (A)(iii), a justification for the determination not to implement the recommendation.

"(3) Format.—The report required under paragraph (1) shall be submitted in unclassified form, but may include a classified annex.

"(b) Program to Implement Report Recommendations and Subrecommendations.—

"(1) Program required.—The Secretary of Defense shall establish and carry out a program (referred to in this subsection as the 'Program') under which the Secretary carries out activities to increase the capacity of eligible institutions to achieve very high research activity status.

"(2) Considerations.—In establishing the Program the Secretary shall consider—

"(A) the recommendations and subrecommendations to be implemented under subsection (a);

"(B) the extent of nascent research capabilities and planned research capabilities at eligible institutions and the relevance of those capabilities to research areas of interest to the Department of Defense;

"(C) recommendations from previous studies for increasing the level of research activity at eligible institutions to very high research activity status, including measurable milestones such as growth in very high research activity status indicators and other relevant factors;

"(D) how institutions participating in the Program will evaluate and assess progress toward achieving very high research activity status;

"(E) how such institutions will sustain an increased level of research activity after the Program terminates; and

"(F) reporting requirements for institutions participating in the Program.

"(3) Consultation.—In designing the Program, the Secretary may consult with the President's Board of Advisors on historically Black colleges and universities.

"(4) Program activities.—

"(A) Activities.—Under the Program, the Secretary shall carry out activities to build the capacity of eligible institutions to achieve very high research activity status, which may include—

"(i) activities to support—

     "(I) faculty professional development;

     "(II) stipends for undergraduate and graduate students and post-doctoral scholars;

     "(III) recruitment and retention of faculty and graduate students;

     "(IV) the provision of laboratory equipment and instrumentation;

     "(V) communication and dissemination of research products produced during the Program;

     "(VI) construction, modernization, rehabilitation, or retrofitting of facilities for research purposes; and

"(ii) such other activities as the Secretary determines appropriate.

"(B) Identification of priority areas.—The Secretary shall establish and update, on an annual basis, a list of research priorities for STEM and critical technologies appropriate for the Program to assist eligible institutions in identifying appropriate areas for research and related activities.

"(5) Termination.—The Program shall terminate 10 years after the date on which the Secretary commences the Program.

"(6) Evaluation.—Not later than two years after the date of the enactment of this Act and every two years thereafter until the date on which the Program terminates under paragraph (5), the Secretary shall submit to the Committees on Armed Services of the Senate and the House of Representatives a report providing an update on the Program, including—

"(A) a description of the activities carried out under the Program;

"(B) an analysis of any growth in very high research activity status indicators of eligible institutions that participated in the Program; and

"(C) emerging research areas of interest to the Department of Defense that are being pursued by such institutions.

"(7) Report to congress.—Not later than 180 days after the date on which the program terminates under paragraph (5), the Secretary shall submit to the Committees on Armed Services of the Senate and the House of Representatives a report on the Program that includes the following:

"(A) An analysis of the growth in very high research activity status indicators of eligible institutions that participated in the Program.

"(B) An evaluation on the effectiveness of the Program in increasing the research capacity of such institutions.

"(C) An explanation of how institutions that achieved very high research activity status plan to sustain that status after the termination of the Program.

"(D) An evaluation of the maintenance of very high research status by eligible institutions that participated in the Program.

"(E) An evaluation of the effectiveness of the Program in increasing the diversity of students conducting high quality research in unique areas.

"(F) Recommendations with respect to further activities and investments necessary to elevate the research status of historically Black colleges and universities and other minority-serving institutions.

"(G) Recommendations as to whether the Program should be renewed or expanded.

"(c) Definitions.—In this section:

"(1) The term 'eligible institution' means a historically Black college or university or other minority-serving institution that is classified as a high research activity status institution at the time of participation in the program under subsection (b).

"(2) The term 'high research activity status' means R2 status, as classified by the Carnegie Classification of Institutions of Higher Education.

"(3) The term 'historically Black college or university' has the meaning given the term 'part B institution' under section 322 of the Higher Education Act of 1965 (20 U.S.C. 1061).

"(4) The term 'other minority-serving institution' means an institution of higher education specified in paragraphs (2) through (7) of section 371(a) of the Higher Education Act of 1965 (20 U.S.C. 1067q(a)).

"(5) The term 'Secretary' means the Secretary of Defense.

"(6) The term 'very high research activity status' means R1 status, as classified by the Carnegie Classification of Institutions of Higher Education.

"(7) The term 'very high research activity status indicators' means the categories used by the Carnegie Classification of Institutions of Higher Education to delineate which institutions have very high activity status, including—

"(A) annual expenditures in science and engineering;

"(B) per-capita (faculty member) expenditures in science and engineering;

"(C) annual expenditures in non-science and engineering fields;

"(D) per-capita (faculty member) expenditures in non-science and engineering fields;

"(E) doctorates awarded in science, technology, engineering, and mathematics fields;

"(F) doctorates awarded in social science fields;

"(G) doctorates awarded in the humanities;

"(H) doctorates awarded in other fields with a research emphasis;

"(I) total number of research staff including postdoctoral researchers;

"(J) other doctorate-holding non-faculty researchers in science and engineering and per-capita (faculty) number of doctorate-level research staff including post-doctoral researchers; and

"(K) other categories utilized to determine classification."

Defense Research and Engineering Activities at Minority Institutions

Pub. L. 117–81, div. A, title II, §220(b), (d), Dec. 27, 2021, 135 Stat. 1598, 1599, provided that:

"(b) Activities to Support the Research and Engineering Capacity of Historically Black Colleges and Universities and Minority Institutions.—

"(1) In general.—Subject to the availability of appropriations, the Secretary [of Defense] may establish a program to award contracts, grants, or other agreements on a competitive basis, and to perform other appropriate activities for the purposes described in paragraph (2).

"(2) Purposes.—The purposes described in this paragraph are the following:

"(A) Developing the capability, including workforce and research infrastructure, for minority institutions to more effectively compete for Federal engineering, research, and development funding opportunities.

"(B) Improving the capability of such institutions to recruit and retain research faculty, and to participate in appropriate personnel exchange programs and educational and career development activities.

"(C) Any other purposes the Secretary determines appropriate for enhancing the defense-related engineering, research, and development capabilities of minority institutions.

"(d) Minority Institution Defined.—In this section, the term 'minority institution' means a covered educational institution (as defined in section 2362 of title 10, United States Code [now 10 U.S.C. 4144])."

National Study on Defense Research at Historically Black Colleges and Universities and Other Minority Institutions

Pub. L. 116–92, div. A, title II, §262, Dec. 20, 2019, 133 Stat. 1295, provided that:

"(a) Study Required.—The Secretary of Defense shall seek to enter into an agreement with the National Academies of Sciences, Engineering, and Medicine (referred to in this section as the 'National Academies') under which the National Academies will conduct a study on the status of defense research at covered institutions and the methods and means necessary to advance research capacity at covered institutions to comprehensively address the national security and defense needs of the United States.

"(b) Designation.—The study conducted under subsection (a) shall be known as the 'National Study on Defense Research At Historically Black Colleges and Universities and Other Minority Institutions'.

"(c) Elements.—The study conducted under subsection (a) shall include an examination of each of the following:

"(1) The degree to which covered institutions are successful in competing for and executing Department of Defense contracts and grants for defense research.

"(2) Best practices for advancing the capacity of covered institutions to compete for and conduct research programs related to national security and defense.

"(3) The advancements and investments necessary to elevate covered institutions to R2 status or R1 status on the Carnegie Classification of Institutions of Higher Education, consistent with the criteria of the classification system.

"(4) The facilities and infrastructure for defense-related research at covered institutions as compared to the facilities and infrastructure at institutions classified as R1 status on the Carnegie Classification of Institutions of Higher Education.

"(5) Incentives to attract, recruit, and retain leading research faculty to covered institutions.

"(6) Best practices of institutions classified as R1 status on the Carnegie Classification of Institutions of Higher Education, including best practices with respect to—

"(A) the establishment of a distinct legal entity to—

"(i) enter into contracts or receive grants from the Department;

"(ii) lay the groundwork for future research opportunities;

"(iii) develop research proposals;

"(iv) engage with defense research funding organizations; and

"(v) execute the administration of grants; and

"(B) determining the type of legal entity, if any, to establish for the purposes described in subparagraph (A).

"(7) The ability of covered institutions to develop, protect, and commercialize intellectual property created through defense-related research.

"(8) The total amount of defense research funding awarded to all institutions of higher education, including covered institutions, through contracts and grants for each of fiscal years 2010 through 2019 and, with respect to each such institution—

"(A) whether the institution established a distinct legal entity to enter into contracts or receive grants from the Department and, if so, the type of legal entity that was established;

"(B) the total value of contracts and grants awarded to the institution of higher education for each of fiscal years 2010 through 2019;

"(C) the overhead rate of the institution of higher education for fiscal year 2019;

"(D) the institution's classification on the Carnegie Classification of Institutions of Higher Education; and

"(E) whether the institution qualifies as a covered institution.

"(9) Recommendations for strengthening and enhancing the programs executed under section 2362 of title 10, United States Code [now 10 U.S.C. 4144].

"(10) Recommendations to enhance the capacity of covered institutions to transition research products into defense acquisition programs or commercialization.

"(11) Previous executive or legislative actions by the Federal Government to address imbalances in Federal research funding, including such programs as the Defense Established Program to Stimulate Competitive Research (commonly known as 'DEPSCoR').

"(12) The effectiveness of the Department in attracting and retaining students specializing in science, technology, engineering, and mathematics fields from covered institutions for the Department's programs on emerging capabilities and technologies.

"(13) Recommendations for the development of incentives to encourage research and educational collaborations between covered institutions and other institutions of higher education.

"(14) Any other matters the Secretary of Defense determines to be relevant to advancing the defense research capacity of covered institutions.

"(d) Reports.—

"(1) Initial report.—Not later than 180 days after the date of the enactment of this Act [Dec. 20, 2019], the Secretary of Defense shall submit to the President and the appropriate congressional committees an initial report that includes—

"(A) the findings of the study conducted under subsection (a); and

"(B) any recommendations that the National Academies may have for action by the executive branch and Congress to improve the participation of covered institutions in Department of Defense research and any actions that may be carried out to expand the research capacity of such institutions.

"(2) Final report.—Not later than December 31, 2021, the Secretary of Defense shall submit to the President and the appropriate congressional committees a comprehensive report on the results of the study required under subsection (a).

"(3) Form of reports.—Each report submitted under this subsection shall be made publicly available.

"(e) Implementation Required.—

"(1) In general.—Except as provided in paragraph (2), not later than March 1, 2022, the Secretary of Defense shall commence implementation of each recommendation included in the final report submitted under subsection (d)(2).

"(2) Exceptions.—

"(A) Delayed implementation.—The Secretary of Defense may commence implementation of a recommendation described paragraph (1) later than March 1, 2022, if—

"(i) the Secretary submits to the congressional defense committees [Committees on Armed Services and Appropriations of the Senate and the House of Representatives] written notice of the intent of the Secretary to delay implementation of the recommendation; and

"(ii) includes, as part of such notice, a specific justification for the delay in implementing the recommendation.

"(B) Nonimplementation.—The Secretary of Defense may elect not to implement a recommendation described in paragraph (1), if—

"(i) the Secretary submits to the congressional defense committees written notice of the intent of the Secretary not to implement the recommendation; and

"(ii) includes, as part of such notice—

     "(I) the reasons for the Secretary's decision not to implement the recommendation; and

     "(II) a summary of alternative actions the Secretary will carry out to address the purposes underlying the recommendation.

"(3) Implementation plan.—For each recommendation that the Secretary implements under this subsection, the Secretary shall submit to the congressional defense committees an implementation plan that includes—

"(A) a summary of actions that have been, or will be, carried out to implement the recommendation; and

"(B) a schedule, with specific milestones, for completing the implementation of the recommendation.

"(f) List of Covered Institutions.—The Secretary of Defense, in consultation with the Secretary of Education and the Presidents of the National Academies, shall make available a list identifying each covered institution examined as part of the study under subsection (a). The list shall be made available on a publicly accessible website and shall be updated not less frequently than once annually until the date on which the final report is submitted under subsection (d)(2).

"(g) Definitions.—In this section:

"(1) The term 'appropriate congressional committees' means—

"(A) the congressional defense committees [Committees on Armed Services and Appropriations of the Senate and the House of Representatives];

"(B) the Committee on Health, Education, Labor, and Pensions of the Senate; and

"(C) the Committee on Education and Labor [now Committee on Education and the Workforce] of the House of Representatives.

"(2) The term 'covered institution' means—

"(A) a part B institution (as that term is defined in section 322(2) of the Higher Education Act of 1965 (20 U.S.C. 1061(2))[)]; or

"(B) any other institution of higher education (as that term is defined in section 101 of such Act (20 U.S.C. 1001)) at which not less than 50 percent of the total student enrollment consists of students from ethnic groups that are underrepresented in the fields of science and engineering."

Strategies for Engagement With Historically Black Colleges and Universities and Minority-Serving Institutions of Higher Education

Pub. L. 114–92, div. A, title II, §233, Nov. 25, 2015, 129 Stat. 779, provided that:

"(a) Basic Research Entities.—

"(1) Strategy.—The heads of each basic research entity shall each develop a strategy for how to engage with and support the development of scientific, technical, engineering, and mathematics capabilities of covered educational institutions in carrying out section 2362 of title 10, United States Code [now 10 U.S.C. 4144].

"(2) Elements.—Each strategy under paragraph (1) shall include the following:

"(A) Goals and vision for maintaining a credible and sustainable program relating to the engagement and support under the strategy.

"(B) Metrics to enhance scientific, technical, engineering, and mathematics capabilities at covered educational institutions, including with respect to measuring progress toward increasing the success of such institutions to compete for broader research funding sources other than set-aside funds.

"(C) Promotion of mentoring opportunities between covered educational institutions and other research institutions.

"(D) Regular assessment of activities that are used to develop, maintain, and grow scientific, technical, engineering, and mathematics capabilities.

"(E) Inclusion of faculty of covered educational institutions into program reviews, peer reviews, and other similar activities.

"(F) Targeting of undergraduate, graduate, and postgraduate students at covered educational institutions for inclusion into research or internship opportunities within the military department.

"(b) Office of the Secretary.—The Secretary of Defense shall develop and implement a strategy for how to engage with and support the development of scientific, technical, engineering, and mathematics capabilities of covered educational institutions pursuant to the strategies developed under subsection (a).

"(c) Submission.—

"(1) Basic research entities.—Not later than 180 days after the date of the enactment of this Act [Nov. 25, 2015], the heads of each basic research entity shall each submit to the congressional defense committees [Committees on Armed Services and Appropriations of the Senate and the House of Representatives] the strategy developed by the head under subsection (a)(1).

"(2) Office of the secretary.—Not later than one year after the date of the enactment of this Act, the Secretary of Defense shall submit to the congressional defense committees the strategy developed under subsection (b).

"(d) Covered Institution Defined.—In this section:

"(1) The term 'basic research entity' means an entity of the Department of Defense that executes research, development, test, and evaluation budget activity 1 funding, as described in the Department of Defense Financial Management Regulation.

"(2) The term 'covered educational institution' has the meaning given that term in section 2362(e) of title 10, United States Code [now 10 U.S.C. 4144(f)]."

[§§4145 to 4147. Omitted]

Editorial Notes

Codification

Sections 4145 to 4147 were initially transferred from sections 2350l, 2368, and 2367 of this title, respectively, by Pub. L. 116–283, div. A, title XVIII, §1844(b), Jan. 1, 2021, 134 Stat. 4246, to become effective Jan. 1, 2022. Subsequently, Pub. L. 117–81, div. A, title XVII, §1701(u)(5)(B), Dec. 27, 2021, 135 Stat. 2154, struck out and added a new section 1844(b) of Pub. L. 116–283, effective as if included therein. The new section 1844(b) did not direct any transfers to sections 4145 to 4147, thereby omitting these sections before they took effect. After other amendments by Pub. L. 117–81, section 2350l was not transferred, and sections 2368 and 2367 were transferred to sections 4124 and 4126 of this title, respectively.

CHAPTER 307—TEST AND EVALUATION

        

Editorial Notes

Codification

Pub. L. 116–283, div. A, title XVIII, §1844(a), Jan. 1, 2021, 134 Stat. 4245, initially enacted chapter 307 of this title, consisting of sections 4141 to 4147, which was to become effective Jan. 1, 2022. However, Pub. L. 117–81, div. A, title XVII, §1701(u)(5)(A), Dec. 27, 2021, 135 Stat. 2153, amended section 1844(a) of Pub. L. 116–283, effective as if included therein, so that instead of enacting chapter 307, it enacted chapter 305 of this title consisting of sections 4141 to 4144.

Amendments

2021—Pub. L. 117–81, div. A, title XVII, §1701(u)(6)(A), (C), Dec. 27, 2021, 135 Stat. 2154, amended Pub. L. 116–283, div. A, title XVIII, §1845(a), Jan. 1, 2021, 134 Stat. 4247, which added this analysis, by redesignating chapter 309 as this chapter and by adding items 4174 and 4175.

Statutory Notes and Related Subsidiaries

Pilot Program To Test Machine-Vision Technologies To Determine the Authenticity and Security of Microelectronic Parts in Weapon Systems

Pub. L. 115–232, div. A, title VIII, §843, Aug. 13, 2018, 132 Stat. 1878, as amended by Pub. L. 116–283, div. A, title XVIII, §§1806(e)(3)(C), 1866(d)(1), Jan. 1, 2021, 134 Stat. 4156, 4280, provided that:

"(a) Pilot Program Authorized.—The Undersecretary of Defense for Research and Engineering, in coordination with the Defense Microelectronics Activity, shall establish a pilot program to test the feasibility and reliability of using machine-vision technologies to determine the authenticity and security of microelectronic parts in weapon systems.

"(b) Objectives of Pilot Program.—The Undersecretary of Defense for Research and Engineering, in coordination with the Defense Microelectronics Activity, shall design any pilot program conducted under this section to determine the following:

"(1) The effectiveness and technology readiness level of machine-vision technologies to determine the authenticity of microelectronic parts at the time of the creation of such part through final insertion of such part into weapon systems.

"(2) The best method of incorporating machine-vision technologies into the process of developing, transporting, and inserting microelectronics into weapon systems.

"(3) The rules, regulations, or processes that hinder the development and incorporation of machine-vision technologies, and the application of such rules, regulations, or processes to mitigate counterfeit microelectronics proliferation throughout the Department of Defense.

"(c) Consultation.—To develop the pilot program under this section, the Undersecretary of Defense for Research and Engineering, in coordination with the Defense Microelectronics Activity, may consult with the following entities:

"(1) Manufacturers of semiconductors or electronics.

"(2) Industry associations relating to semiconductors or electronics.

"(3) Original equipment manufacturers of products for the Department of Defense.

"(4) Nontraditional defense contractors (as defined in section 3014 of title 10, United States Code) that are machine vision companies.

"(5) Federal laboratories (as defined in section 4801(5) of title 10, United States Code).

"(6) Other elements of the Department of Defense that fall under the authority of the Undersecretary of Defense for Research and Engineering.

"(d) Commencement and Duration.—The pilot program established under this section shall be established not later than April 1, 2019, and all activities under such pilot program shall terminate not later than December 31, 2020."

[Pub. L. 116–283, §1866(d)(1)(A), which directed amendment of section 843(c)(4) of Pub. L. 115–232, set out above, by substituting "section 3021" for "section 2302(9)", could not be executed because of the intervening amendment by section 1806(e)(3)(C) of Pub. L. 116–283, which had substituted "section 3014" for "section 2302(9)".]

§4171. Operational test and evaluation of defense acquisition programs

(a) Condition for Proceeding Beyond Low-rate Initial Production.—(1) The Secretary of Defense shall provide that a covered major defense acquisition program, a covered designated major subprogram, or an element of the ballistic missile defense system may not proceed beyond low-rate initial production until initial operational test and evaluation of the program, subprogram, or element is completed.

(2) In this subsection:

(A) The term "covered major defense acquisition program" means a major defense acquisition program that involves the acquisition of a weapon system that is a major system.

(B) The term "covered designated major subprogram" means a major subprogram designated under section 4203(a)(1) of this title that is a major subprogram of a covered major defense acquisition program.

(b) Operational Test and Evaluation.—(1) Operational testing of a major defense acquisition program may not be conducted until the Director of Operational Test and Evaluation of the Department of Defense approves (in writing) the adequacy of the plans (including the projected level of funding) for operational test and evaluation to be conducted in connection with that program.

(2) The Director shall analyze the results of the operational test and evaluation conducted for each major defense acquisition program. At the conclusion of such testing, the Director shall prepare a report stating—

(A) the opinion of the Director as to—

(i) whether the test and evaluation performed were adequate; and

(ii) whether the results of such test and evaluation confirm that the items or components actually tested are effective and suitable for combat; and

(B) additional information on the operational capabilities of the items or components that the Director considers appropriate based on the testing conducted.

(3) The Director shall submit each report under paragraph (2) to the Secretary of Defense, the Under Secretary of Defense for Acquisition and Sustainment, the Under Secretary of Defense for Research and Engineering, and the congressional defense committees. Each such report shall be submitted to those committees in precisely the same form and with precisely the same content as the report originally was submitted to the Secretary and Under Secretary and shall be accompanied by such comments as the Secretary may wish to make on the report.

(4) A final decision within the Department of Defense to proceed with a major defense acquisition program beyond low-rate initial production may not be made until the Director has submitted to the Secretary of Defense the report with respect to that program under paragraph (2) and the congressional defense committees have received that report.

(5) If, before a final decision described in paragraph (4) is made for a major defense acquisition program, a decision is made within the Department of Defense to proceed to operational use of that program or to make procurement funds available for that program, the Director shall submit to the Secretary of Defense and the congressional defense committees the report with respect to that program under paragraph (2) as soon as practicable after the decision described in this paragraph is made.

(6) In this subsection, the term "major defense acquisition program" has the meaning given that term in section 139(a)(2)(B) of this title.

(c) Determination of Quantity of Articles Required for Operational Testing.—The quantity of articles of a new system that are to be procured for operational testing shall be determined by—

(1) the Director of Operational Test and Evaluation of the Department of Defense, in the case of a new system that is a major defense acquisition program (as defined in section 139(a)(2)(B) of this title); or

(2) the operational test and evaluation agency of the military department concerned, in the case of a new system that is not a major defense acquisition program.

(d) Impartiality of Contractor Testing Personnel.—In the case of a major defense acquisition program (as defined in subsection (a)(2)), no person employed by the contractor for the system being tested may be involved in the conduct of the operational test and evaluation required under subsection (a). The limitation in the preceding sentence does not apply to the extent that the Secretary of Defense plans for persons employed by that contractor to be involved in the operation, maintenance, and support of the system being tested when the system is deployed in combat.

(e) Impartial Contracted Advisory and Assistance Services.—(1) The Director may not contract with any person for advisory and assistance services with regard to the test and evaluation of a system if that person participated in (or is participating in) the development, production, or testing of such system for a military department or Defense Agency (or for another contractor of the Department of Defense).

(2) The Director may waive the limitation under paragraph (1) in any case if the Director determines in writing that sufficient steps have been taken to ensure the impartiality of the contractor in providing the services. The Inspector General of the Department of Defense shall review each such waiver and shall include in the Inspector General's semi-annual report an assessment of those waivers made since the last such report.

(3)(A) A contractor that has participated in (or is participating in) the development, production, or testing of a system for a military department or Defense Agency (or for another contractor of the Department of Defense) may not be involved (in any way) in the establishment of criteria for data collection, performance assessment, or evaluation activities for the operational test and evaluation.

(B) The limitation in subparagraph (A) does not apply to a contractor that has participated in such development, production, or testing solely in testing for the Federal Government.

(f) Source of Funds for Testing.—The costs for all tests required under subsection (a) shall be paid from funds available for the system being tested.

(g) Director's Annual Report.—As part of the annual report of the Director under section 139 of this title, the Director shall describe for each program covered in the report the status of test and evaluation activities in comparison with the test and evaluation master plan for that program, as approved by the Director. The Director shall include in such annual report a description of each waiver granted under subsection (e)(2) since the last such report.

(h) Operational Test and Evaluation Defined.—In this section, the term "operational test and evaluation" has the meaning given that term in section 139(a)(2)(A) of this title. For purposes of subsection (a), that term does not include an operational assessment based exclusively on—

(1) computer modeling;

(2) simulation; or

(3) an analysis of system requirements, engineering proposals, design specifications, or any other information contained in program documents.

(Added Pub. L. 101–189, div. A, title VIII, §802(a)(1), Nov. 29, 1989, 103 Stat. 1484, §2399; amended Pub. L. 102–484, div. A, title VIII, §819, Oct. 23, 1992, 106 Stat. 2458; Pub. L. 103–160, div. A, title IX, §904(d)(1), Nov. 30, 1993, 107 Stat. 1728; Pub. L. 103–337, div. A, title X, §1070(a)(11), (f), Oct. 5, 1994, 108 Stat. 2856, 2859; Pub. L. 104–106, div. A, title XV, §1502(a)(19), Feb. 10, 1996, 110 Stat. 504; Pub. L. 106–65, div. A, title X, §1067(1), Oct. 5, 1999, 113 Stat. 774; Pub. L. 107–107, div. A, title X, §1048(b)(2), Dec. 28, 2001, 115 Stat. 1225; Pub. L. 107–314, div. A, title X, §1062(a)(9), Dec. 2, 2002, 116 Stat. 2650; Pub. L. 108–136, div. A, title X, §1043(b)(14), Nov. 24, 2003, 117 Stat. 1611; Pub. L. 109–364, div. A, title II, §231(a), Oct. 17, 2006, 120 Stat. 2131; Pub. L. 111–383, div. A, title VIII, §814(d), Jan. 7, 2011, 124 Stat. 4267; Pub. L. 115–91, div. A, title XVI, §1677(a), Dec. 12, 2017, 131 Stat. 1774; Pub. L. 116–92, div. A, title IX, §902(62), Dec. 20, 2019, 133 Stat. 1550; renumbered §4171 and amended Pub. L. 116–283, div. A, title XVIII, §§1845(b), 1883(b)(2), Jan. 1, 2021, 134 Stat. 4247, 4294; Pub. L. 117–81, div. A, title XVII, §1701(d)(10), (u)(6)(B), Dec. 27, 2021, 135 Stat. 2137, 2154.)

Editorial Notes

Amendments

2021—Pub. L. 116–283, §1845(b), as amended by Pub. L. 117–81, §1701(u)(6)(B), renumbered section 2399 of this title as this section.

Subsec. (a)(2)(A). Pub. L. 117–81, §1701(d)(10)(A), struck out "within the meaning of that term in section 3041 of this title" before period at end.

Pub. L. 116–283, §1883(b)(2), substituted "section 3041" for "section 2302(5)".

Subsec. (a)(2)(B). Pub. L. 117–81, §1701(d)(10)(B), which directed the substitution of "under section 4203(a)(1) of this title" for "under" and all that followed through "this title", was not executed in light of the prior amendment by section 1883(b)(2) of Pub. L. 116—283, to reflect the probable intent of Congress. See note below.

Pub. L. 116–283, §1883(b)(2), substituted "section 4203(a)(1)" for "section 2430a(a)(1)".

2019—Subsec. (b)(3). Pub. L. 116–92 substituted "Under Secretary of Defense for Acquisition and Sustainment, the Under Secretary of Defense for Research and Engineering," for "Under Secretary of Defense for Acquisition, Technology, and Logistics,".

2017—Subsec. (a)(1). Pub. L. 115–91 substituted ", a covered designated major subprogram, or an element of the ballistic missile defense system" for "or a covered designated major subprogram" and "program, subprogram, or element" for "program or subprogram".

2011—Subsec. (a). Pub. L. 111–383 amended subsec. (a) generally. Prior to amendment, text read as follows:

"(1) The Secretary of Defense shall provide that a major defense acquisition program may not proceed beyond low-rate initial production until initial operational test and evaluation of the program is completed.

"(2) In this subsection, the term 'major defense acquisition program' means a conventional weapons system that—

"(A) is a major system within the meaning of that term in section 2302(5) of this title; and

"(B) is designed for use in combat."

2006—Subsec. (b)(2). Pub. L. 109–364, §231(a)(1), amended par. (2) generally. Prior to amendment, par. (2) read as follows: "The Director shall analyze the results of the operational test and evaluation conducted for each major defense acquisition program. At the conclusion of such testing, the Director shall prepare a report stating the opinion of the Director as to—

"(A) whether the test and evaluation performed were adequate; and

"(B) whether the results of such test and evaluation confirm that the items or components actually tested are effective and suitable for combat."

Subsec. (b)(5), (6). Pub. L. 109–364, §231(a)(2), (3), added par. (5) and redesignated former par. (5) as (6).

2003—Subsec. (h). Pub. L. 108–136 substituted "Operational Test and Evaluation Defined" for "Definitions" in heading, struck out introductory provisions which read "In this section:", substituted "In this section, the term" for "(1) The term", redesignated subpars. (A) to (C) of former par. (1) as pars. (1) to (3), respectively, realigned margins, and struck out former par. (2) which defined "congressional defense committees" to mean the Committees on Armed Services and Appropriations of the Senate and the House of Representatives.

2002—Subsec. (a)(2). Pub. L. 107–314 substituted "means a conventional weapons system that" for "means" in introductory provisions and struck out "a conventional weapons system that" before "is a major system" in subpar. (A).

2001—Subsec. (b)(3). Pub. L. 107–107 substituted "Under Secretary of Defense for Acquisition, Technology, and Logistics" for "Under Secretary of Defense for Acquisition and Technology".

1999—Subsec. (h)(2)(B). Pub. L. 106–65 substituted "Committee on Armed Services" for "Committee on National Security".

1996—Subsec. (h)(2). Pub. L. 104–106 substituted "means—" and subpars. (A) and (B) for "means the Committees on Armed Services and the Committees on Appropriations of the Senate and House of Representatives."

1994—Subsecs. (b)(5), (c)(1). Pub. L. 103–337, §1070(a)(11)(A), substituted "139(a)(2)(B)" for "138(a)(2)(B)".

Subsec. (e)(3)(B). Pub. L. 103–337, §1070(f), substituted "solely in testing for" for "solely as a representative of".

Subsec. (g). Pub. L. 103–337, §1070(a)(11)(B), substituted "139" for "138".

Subsec. (h)(1). Pub. L. 103–337, §1070(a)(11)(C), substituted "139(a)(2)(A)" for "138(a)(2)(A)".

1993—Subsec. (b)(3). Pub. L. 103–160 substituted "Under Secretary of Defense for Acquisition and Technology" for "Under Secretary of Defense for Acquisition".

1992—Subsec. (e)(3). Pub. L. 102–484 designated existing provisions as subpar. (A) and added subpar. (B).

Statutory Notes and Related Subsidiaries

Effective Date of 2021 Amendment

Amendment by section 1701(d)(10) of Pub. L. 117–81 to take effect immediately after the amendments made by title XVIII of Pub. L. 116–283 have taken effect, see section 1701(a)(3) of Pub. L. 117–81, set out in a note preceding section 3001 of this title and note below.

Amendment by section 1701(u)(6)(B) of Pub. L. 117–81 applicable as if included in the enactment of title XVIII of Pub. L. 116–283 as enacted, see section 1701(a)(2) of Pub. L. 117–81, set out in a note preceding section 3001 of this title and note below.

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 a note preceding section 3001 of this title.

Termination of Reporting Requirements

For termination, effective Dec. 31, 2021, of provisions in subsec. (g) of this section requiring submittal of annual report to Congress, see section 1061 of Pub. L. 114–328, set out as a note under section 111 of this title.

Enhancements to Transparency in Test and Evaluation Processes and Data

Pub. L. 115–91, div. A, title VIII, §839, Dec. 12, 2017, 131 Stat. 1475, provided that:

"(a) Additional Test and Evaluation Duties of Military Secretaries and Defense Agency Heads.—

"(1) Report on comparison of operational test and evaluation results to legacy items or components.—Concurrent with the submission of a report required under section 2399(b)(2) of title 10, United States Code [now 10 U.S.C. 4171(b)(2)], the Secretary of a military department or the head of a Defense Agency may provide to the congressional defense committees [Committees on Armed Services and Appropriations of the Senate and the House of Representatives] and the Secretary of Defense a report describing of the performance of the items or components evaluated as part of the operational test and evaluation for each major defense acquisition program conducted under such section by the Director of Operational Test and Evaluation in relation to comparable legacy items or components, if such items or components exist and relevant data are available without requiring additional testing.

"(2) Additional report on operational test and evaluation activities.—Within 45 days after the submission of an annual report required by section 139(h) of title 10, United States Code, the Secretaries of the military departments may each submit to the congressional defense committees a report addressing any concerns related to information included in the annual report, or providing updated or additional information, as appropriate.

"(b) Requirements for Collection of Cost Data on Test and Evaluation.—

"(1) In general.—Not later than one year after the date of the enactment of this Act [Dec. 12, 2017] and subject to paragraph (2), the Director of Operational Test and Evaluation, the senior official of the Department of Defense with responsibility for developmental testing, and the Director of the Test Resource Management Center shall jointly develop policies, procedures, guidance, and a method to collect data that ensures that consistent and high quality data are collected on the full range of estimated and actual developmental, live fire, and operational testing costs for major defense acquisition programs.

"(2) Concurrence and coordination required.—Before implementing the policies, procedures, guidance, and method developed under paragraph (1), the Director of Operational Test and Evaluation, the senior official of the Department of Defense with responsibility for developmental testing, and the Director of the Test Resource Management Center shall—

"(A) obtain the concurrence of the Director for Cost Assessment and Program Evaluation; and

"(B) coordinate with the Secretaries of the military departments.

"(3) Data requirements.—

"(A) Electronic database.—Data on estimated and actual developmental, live fire, and operational testing costs shall be maintained in an electronic database maintained by the Director for Cost Assessment and Program Evaluation or another appropriate official of the Department of Defense, and shall be made available for analysis by testing, acquisition, and other appropriate officials of the Department of Defense, as determined by the Director of Operational Test and Evaluation, the senior official of the Department of Defense with responsibility for developmental testing, or the Director of the Test Resource Management Center.

"(B) Diaggregation [sic] by costs.—To the maximum extent practicable, data collected under this subsection shall be set forth separately by costs for developmental testing, operational testing, and training.

"(c) Major Defense Acquisition Program Defined.—In this section, the term 'major defense acquisition program' has the meaning provided in section 2430 of title 10, United States Code [now 10 U.S.C. 4201]."

§4172. Major systems and munitions programs: survivability testing and lethality testing required before full-scale production

(a) Requirements.—(1) The Secretary of Defense shall provide that—

(A) a covered system may not proceed beyond low-rate initial production until realistic survivability testing of the system is completed in accordance with this section and the report required by subsection (d) with respect to that testing is submitted in accordance with that subsection; and

(B) a major munition program or a missile program may not proceed beyond low-rate initial production until realistic lethality testing of the program is completed in accordance with this section and the report required by subsection (d) with respect to that testing is submitted in accordance with that subsection.

(2) The Secretary of Defense shall provide that a covered product improvement program may not proceed beyond low-rate initial production until—

(A) in the case of a product improvement to a covered system, realistic survivability testing is completed in accordance with this section; and

(B) in the case of a product improvement to a major munitions program or a missile program, realistic lethality testing is completed in accordance with this section.

(b) Test Guidelines.—(1) Survivability and lethality tests required under subsection (a) shall be carried out sufficiently early in the development phase of the system or program (including a covered product improvement program) to allow any design deficiency demonstrated by the testing to be corrected in the design of the system, munition, or missile (or in the product modification or upgrade to the system, munition, or missile) before proceeding beyond low-rate initial production.

(2) The costs of all tests required under that subsection shall be paid from funds available for the system being tested.

(c) Waiver Authority.—(1) The Secretary of Defense may waive the application of the survivability and lethality tests of this section to a covered system, munitions program, missile program, or covered product improvement program if the Secretary determines that live-fire testing of such system or program would be unreasonably expensive and impractical and submits a certification of that determination to Congress—

(A) before Milestone B approval for the system or program; or

(B) in the case of a system or program initiated at—

(i) Milestone B, as soon as is practicable after the Milestone B approval; or

(ii) Milestone C, as soon as is practicable after the Milestone C approval.

(2) In the case of a covered system (or covered product improvement program for a covered system), the Secretary may waive the application of the survivability and lethality tests of this section to such system or program and instead allow testing of the system or program in combat by firing munitions likely to be encountered in combat at components, subsystems, and subassemblies, together with performing design analyses, modeling and simulation, and analysis of combat data. Such alternative testing may not be carried out in the case of any covered system (or covered product improvement program for a covered system) unless the Secretary certifies to Congress, before the system or program enters system development and demonstration, that the survivability and lethality testing of such system or program otherwise required by this section would be unreasonably expensive and impracticable.

(3) The Secretary shall include with any certification under paragraph (1) or (2) a report explaining how the Secretary plans to evaluate the survivability or the lethality of the system or program and assessing possible alternatives to realistic survivability testing of the system or program.

(4) In time of war or mobilization, the President may suspend the operation of any provision of this section.

(d) Reporting to Congress.—(1) At the conclusion of survivability or lethality testing under subsection (a), the Secretary of Defense shall submit a report on the testing to the congressional defense committees. Each such report shall describe the results of the survivability or lethality testing and shall give the Secretary's overall assessment of the testing.

(2) If a decision is made within the Department of Defense to proceed to operational use of a system, or to make procurement funds available for a system, before Milestone C approval of that system, the Secretary of Defense shall submit to the congressional defense committees, as soon as practicable after such decision, the following:

(A) A report describing the status of survivability and live fire testing of that system.

(B) The report required under paragraph (1).

(e) Definitions.—In this section:

(1) The term "covered system" means—

(A) a vehicle, weapon platform, or conventional weapon system that—

(i) includes features designed to provide some degree of protection to users in combat; and

(ii) is a major system as defined in section 3041 of this title; or

(B) any other system or program designated by the Secretary of Defense for purposes of this section.

(2) The term "major munitions program" means—

(A) a munition program for which more than 1,000,000 rounds are planned to be acquired; or

(B) a conventional munitions program that is a major system within the meaning of that term in section 3041 of this title.

(3) The term "realistic survivability testing" means, in the case of a covered system (or a covered product improvement program for a covered system), testing for vulnerability of the system in combat by firing munitions likely to be encountered in combat (or munitions with a capability similar to such munitions) at the system configured for combat, with the primary emphasis on testing vulnerability with respect to potential user casualties and taking into equal consideration the susceptibility to attack and combat performance of the system.

(4) The term "realistic lethality testing" means, in the case of a major munitions program or a missile program (or a covered product improvement program for such a program), testing for lethality by firing the munition or missile concerned at appropriate targets configured for combat.

(5) The term "configured for combat", with respect to a weapon system, platform, or vehicle, means loaded or equipped with all dangerous materials (including all flammables and explosives) that would normally be on board in combat.

(6) The term "covered product improvement program" means a program under which—

(A) a modification or upgrade will be made to a covered system which (as determined by the Secretary of Defense) is likely to affect significantly the survivability of such system; or

(B) a modification or upgrade will be made to a major munitions program or a missile program which (as determined by the Secretary of Defense) is likely to affect significantly the lethality of the munition or missile produced under the program.

(7) The term "Milestone B approval" means a decision to enter into system development and demonstration pursuant to guidance prescribed by the Secretary of Defense for the management of Department of Defense acquisition programs.

(8) The term "Milestone C approval" means a decision to enter into production and deployment pursuant to guidance prescribed by the Secretary of Defense for the management of Department of Defense acquisition programs.

(Added Pub. L. 99–500, §101(c) [title X, §910(a)(1)], Oct. 18, 1986, 100 Stat. 1783–82, 1783-143, and Pub. L. 99–591, §101(c) [title X, §910(a)(1)], Oct. 30, 1986, 100 Stat. 3341–82, 3341-143, §2366; Pub. L. 99–661, div. A, title IX, formerly title IV, §910(a)(1), Nov. 14, 1986, 100 Stat. 3923, renumbered title IX, Pub. L. 100–26, §3(5), Apr. 21, 1987, 101 Stat. 273; amended Pub. L. 100–180, div. A, title VIII, §802, title XII, §1231(11), Dec. 4, 1987, 101 Stat. 1123, 1160; Pub. L. 100–456, div. A, title XII, §1233(l)(3), Sept. 29, 1988, 102 Stat. 2058; Pub. L. 101–189, div. A, title VIII, §§802(c)(1)–(4)(A), 804, Nov. 29, 1989, 103 Stat. 1486, 1488; Pub. L. 101–510, div. A, title XIV, §1484(h)(7), Nov. 5, 1990, 104 Stat. 1718; Pub. L. 103–160, div. A, title VIII, §828(d)(2), Nov. 30, 1993, 107 Stat. 1715; Pub. L. 103–355, title III, §3014, Oct. 13, 1994, 108 Stat. 3332; Pub. L. 104–106, div. A, title XV, §1502(a)(18), Feb. 10, 1996, 110 Stat. 504; Pub. L. 106–65, div. A, title X, §1067(1), Oct. 5, 1999, 113 Stat. 774; Pub. L. 107–107, div. A, title VIII, §821(a), Dec. 28, 2001, 115 Stat. 1181; Pub. L. 107–314, div. A, title VIII, §818, Dec. 2, 2002, 116 Stat. 2611; Pub. L. 108–136, div. A, title X, §1043(b)(13), Nov. 24, 2003, 117 Stat. 1611; Pub. L. 110–417, [div. A], title II, §251(a), (b), Oct. 14, 2008, 122 Stat. 4400; renumbered §4172 and amended Pub. L. 116–283, div. A, title XVIII, §§1845(b), 1883(b)(2), Jan. 1, 2021, 134 Stat. 4247, 4294; Pub. L. 117–81, div. A, title XVII, §1701(u)(6)(B), Dec. 27, 2021, 135 Stat. 2154.)

Editorial Notes

Codification

Pub. L. 99–591 is a corrected version of Pub. L. 99–500.

Pub. L. 99–500, Pub. L. 99–591, and Pub. L. 99–661 added identical sections.

Amendments

2021—Pub. L. 116–283, §1845(b), as amended by Pub. L. 117–81, §1701(u)(6)(B), renumbered section 2366 of this title as this section.

Subsec. (e)(1)(A)(ii), (2)(B). Pub. L. 116–283, §1883(b)(2), substituted "section 3041" for "section 2302(5)".

2008—Subsec. (d). Pub. L. 110–417, §251(b), designated existing provisions as par. (1) and added par. (2).

Subsec. (e)(1). Pub. L. 110–417, §251(a), amended par. (1) generally. Prior to amendment, par. (1) read as follows: "The term 'covered system' means a vehicle, weapon platform, or conventional weapon system—

"(A) that includes features designed to provide some degree of protection to users in combat; and

"(B) that is a major system within the meaning of that term in section 2302(5) of this title."

2003—Subsec. (e)(7) to (9). Pub. L. 108–136 redesignated pars. (8) and (9) as (7) and (8), respectively, and struck out former par. (7) which read as follows: "The term 'congressional defense committees' means—

"(A) the Committee on Armed Services and the Committee on Appropriations of the Senate; and

"(B) the Committee on Armed Services and the Committee on Appropriations of the House of Representatives."

2002—Subsec. (c)(1). Pub. L. 107–314, §818(a), amended par. (1) generally. Prior to amendment par. (1) read as follows: "The Secretary of Defense may waive the application of the survivability and lethality tests of this section to a covered system, munitions program, missile program, or covered product improvement program if the Secretary, before the system or program enters system development and demonstration, certifies to Congress that live-fire testing of such system or program would be unreasonably expensive and impractical."

Subsec. (e)(8), (9). Pub. L. 107–314, §818(b), added pars. (8) and (9).

2001—Subsec. (c)(1), (2). Pub. L. 107–107 substituted "system development and demonstration" for "engineering and manufacturing development".

1999—Subsec. (e)(7)(B). Pub. L. 106–65 substituted "Committee on Armed Services" for "Committee on National Security".

1996—Subsec. (d). Pub. L. 104–106, §1502(a)(18)(A), substituted "the congressional defense committees" for "the Committees on Armed Services and on Appropriations of the Senate and House of Representatives".

Subsec. (e)(7). Pub. L. 104–106, §1502(a)(18)(B), added par. (7).

1994—Subsec. (c)(1). Pub. L. 103–355, §3014(a)(2), (b), substituted "engineering and manufacturing development" for "full-scale engineering development" in first sentence and redesignated second sentence as par. (3).

Subsec. (c)(2). Pub. L. 103–355, §3014(a)(1), (3), added par. (2) and redesignated former par. (2) as (4).

Subsec. (c)(3). Pub. L. 103–355, §3014(a)(2), redesignated second sentence of par. (1) as par. (3) and substituted "certification under paragraph (1) or (2)" for "such certification".

Subsec. (c)(4). Pub. L. 103–355, §3014(a)(1), redesignated par. (2) as (4).

1993—Subsec. (d). Pub. L. 103–160 substituted "to the Committees on Armed Services and on Appropriations of the Senate and House of Representatives" for "to the defense committees of Congress (as defined in section 2362(e)(3) of this title)".

1990—Subsec. (a)(1)(A), (B). Pub. L. 101–510 made technical correction to directory language of Pub. L. 101–189, §804(a), see 1989 Amendment note below.

1989—Pub. L. 101–189, §802(c)(4)(A), substituted "testing and lethality testing required before full-scale production" for "and lethality testing; operational testing" in section catchline.

Subsec. (a)(1)(A). Pub. L. 101–189, §§802(c)(1)(A), 804(a), as amended by Pub. L. 101–510, substituted "this section and the report required by subsection (d) with respect to that testing is submitted in accordance with that subsection; and" for "this section;".

Subsec. (a)(1)(B). Pub. L. 101–189, §§802(c)(1)(B), 804(a), as amended by Pub. L. 101–510, substituted "this section and the report required by subsection (d) with respect to that testing is submitted in accordance with that subsection." for "this section; and".

Subsec. (a)(1)(C). Pub. L. 101–189, §802(c)(1)(C), struck out subpar. (C) which read as follows: "a major defense acquisition program may not proceed beyond low-rate initial production until initial operational test and evaluation of the program is completed in accordance with this section."

Subsec. (b)(2), (3). Pub. L. 101–189, §802(c)(2), redesignated par. (3) as (2) and struck out former par. (2) which read as follows: "In the case of a major defense acquisition program, no person employed by the contractor for the system being tested may be involved in the conduct of the operational test and evaluation required under subsection (a). The limitation in the preceding sentence does not apply to the extent that the Secretary of Defense plans for persons employed by that contractor to be involved in the operation, maintenance, and support of the system being tested when the system is deployed in combat."

Subsec. (d). Pub. L. 101–189, §804(b), inserted at end "Each such report shall describe the results of the survivability or lethality testing and shall give the Secretary's overall assessment of the testing."

Subsec. (e)(3) to (8). Pub. L. 101–189, §802(c)(3), redesignated pars. (4), (5), (6), and (8) as (3), (4), (5), and (6), respectively, and struck out former par. (3) which defined "major defense acquisition program" and former par. (7) which defined "operational test and evaluation".

1988—Subsec. (a)(2). Pub. L. 100–456 made technical correction to directory language of Pub. L. 100–180, §802(a)(1)(C). See 1987 Amendment note below.

1987—Subsec. (a). Pub. L. 100–180, §802(a)(1), as amended by Pub. L. 100–456, designated existing provisions as par. (1), redesignated former pars. (1) to (3) as subpars. (A) to (C), and added par. (2).

Subsec. (b)(1). Pub. L. 100–180, §802(a)(2), inserted "(including a covered product improvement program)" after "system or program" and "(or in the product modification or upgrade to the system, munition, or missile)" after "or missile".

Subsec. (b)(2). Pub. L. 100–180, §802(b), inserted at end "The limitation in the preceding sentence does not apply to the extent that the Secretary of Defense plans for persons employed by that contractor to be involved in the operation, maintenance, and support of the system being tested when the system is deployed in combat."

Subsec. (c). Pub. L. 100–180, §802(a)(3), (c), (d)(1), designated existing provisions as par. (1), substituted "missile program, or covered product improvement program" for "or missile program", and inserted at end "The Secretary shall include with any such certification a report explaining how the Secretary plans to evaluate the survivability or the lethality of the system or program and assessing possible alternatives to realistic survivability testing of the system or program."

Pub. L. 100–180, §802(d)(2), designated existing provisions of former subsec. (d) as par. (2) of subsec. (c) and struck out heading of former subsec. (d) "Waiver in time of war or mobilization".

Subsec. (d). Pub. L. 100–180, §802(d)(3), added subsec. (d). Former subsec. (d) redesignated subsec. (c)(2).

Subsec. (e)(1)(B). Pub. L. 100–180, §1231(11), substituted "section 2302(5)" for "section 2303(5)".

Subsec. (e)(4). Pub. L. 100–180, §802(a)(4)(A), (e), inserted "(or a covered product improvement program for a covered system)" after "covered system", struck out "and survivability" after "for vulnerability", and substituted "susceptibility to attack" for "operational requirements".

Subsec. (e)(5). Pub. L. 100–180, §802(a)(4)(B), inserted "(or a covered product improvement program for such a program)" after "missile program".

Subsec. (e)(8). Pub. L. 100–180, §802(a)(4)(C), added par. (8).

Statutory Notes and Related Subsidiaries

Effective Date of 2021 Amendment

Amendment by Pub. L. 117–81 applicable as if included in the enactment of title XVIII of Pub. L. 116–283 as enacted, see section 1701(a)(2) of Pub. L. 117–81, set out in a note preceding section 3001 of this title and note below.

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 a note preceding section 3001 of this title.

Effective Date of 1988 Amendment

Pub. L. 100–456, div. A, title XII, §1233(l)(5), Sept. 29, 1988, 102 Stat. 2058, provided that: "The amendments made by this subsection [amending this section and sections 4214 and 8855 of this title and section 301c of Title 37, Pay and Allowances of the Uniformed Services] shall apply as if included in the enactment of Public Law 100–180."

Effective Date

Pub. L. 99–500, §101(c) [title X, §910(b)], Oct. 18, 1986, 100 Stat. 1783–82, 1783-145, Pub. L. 99–591, §101(c) [title X, §910(b)], Oct. 30, 1986, 100 Stat. 3341–82, 3341-145, and Pub. L. 99–661, div. A, title IX, formerly title IV, §910(b), Nov. 14, 1986, 100 Stat. 3924, renumbered title IX, Pub. L. 100–26, §3(5), Apr. 21, 1987, 101 Stat. 273, provided that: "Section 2366 of title 10, United States Code [now 10 U.S.C. 4172] (as added by subsection (a)), shall apply with respect to any decision to proceed with a program beyond low-rate initial production that is made—

"(1) after May 31, 1987, in the case of a decision referred to in subsection (a)(1) or (a)(2) of such section; or

"(2) after the date of the enactment of this Act [Oct. 18, 1986], in the case of a decision referred to in subsection (a)(3) of such section."

Consideration of Lethality in the Analysis of Alternatives for Munitions

Pub. L. 118–31, div. A, title II, §242, Dec. 22, 2023, 137 Stat. 208, provided that:

"(a) Analysis of Alternatives Review.—The Secretary of Defense shall ensure that lethality is considered in any analysis of alternatives conducted prior to issuing a capability development document for purposes of procuring any new munition or modifying an existing munition.

"(b) Consideration of Energetic Materials.—In assessing the lethality of a munition for purposes of the analysis of alternatives described under subsection (a), the Secretary of Defense shall include the margin of effectiveness, increased system capacities, and cost implications afforded by the potential use of novel or alternative energetic materials in the munition to achieve increased explosive effects.

"(c) Energetic Materials Defined.—In this section, the term 'energetic materials' means critical chemicals that—

"(1) release large amounts of energy in a short amount of time; and

"(2) are capable of being used in explosives that create lethal effects in warheads."

Pilot Program on Incorporation of the CL20 Compound in Certain Weapon Systems

Pub. L. 118–31, div. A, title II, §243, Dec. 22, 2023, 137 Stat. 209, provided that:

"(a) Pilot Program Required.—The Secretary of Defense shall carry out a pilot program under which the Secretary incorporates the CL20 compound as the energetic material for the main fill in the warheads or propellants of three weapon systems under development by the Department of Defense for the purpose of determining cost, schedule, and lethality performance parameters for such systems.

"(b) Selection of Weapon Systems.—Each of the three weapon systems selected under subsection (a) shall be a weapon system that does not, as of the date of the enactment of this Act [Dec. 22, 2023], already incorporate the CL20 compound as the energetic material for the main fill in the warhead or propellant of the system.

"(c) Timeline for Integration.—The Secretary of Defense shall ensure that the CL20 energetic compound is integrated into each weapon system selected under subsection (a) by not later than three years after the date of the enactment of this Act.

"(d) Briefing.—Not later than one year after the date of the enactment of this Act, the Secretary of Defense shall provide to the congressional defense committees [Committees on Armed Services and Appropriations of the Senate and the House of Representatives] a briefing on progress of the Secretary in carrying out the pilot program under this section, including—

"(1) identification of the weapon systems selected by the Secretary under subsection (a);

"(2) with respect to each such weapon system, identification of—

"(A) a timeline for incorporating the CL20 energetic compound into such weapon system;

"(B) the organization within the Department of Defense responsible for carrying out activities under the pilot program for such weapon system; and

"(C) any locations at which testing associated with such weapon system under the program is expected to be carried out; and

"(3) the baseline cost, schedule, and lethality objectives that will be used to evaluate the performance of weapon systems under the program.

"(e) Definitions.—In this section, the term 'energetic material' means critical chemicals and formulations that—

"(1) release large amounts of stored chemical energy; and

"(2) are capable of being used as explosives, propellants, pyrotechnics, and reactive materials that—

"(A) create lethal effects in warheads in kinetic weapons components and systems; or

"(B) increase propellant performance in a weapon propulsion system as related to lethal effects, range, or speed."

Development and Implementation of Digital Technologies for Survivability and Lethality Testing

Pub. L. 117–81, div. A, title II, §223, Dec. 27, 2021, 135 Stat. 1601, provided that:

"(a) Expansion of Survivability and Lethality Testing.—

"(1) In general.—The Secretary, in coordination with covered officials, shall—

"(A) expand the survivability and lethality testing of covered systems to include testing against non-kinetic threats; and

"(B) develop digital technologies to test such systems against such threats throughout the life cycle of each such system.

"(2) Development of digital technologies for live fire testing.—

"(A) In general.—The Secretary, in coordination with covered officials, shall develop—

"(i) digital technologies to enable the modeling and simulation of the live fire testing required under section 2366 of title 10, United States Code [now 10 U.S.C. 4172]; and

"(ii) a process to use data from physical live fire testing to inform and refine the digital technologies described in clause (i).

"(B) Objectives.—In carrying out subparagraph (A), the Secretary shall seek to achieve the following objectives:

"(i) Enable assessments of full spectrum survivability and lethality of each covered system with respect to kinetic and non-kinetic threats.

"(ii) Inform the development and refinement of digital technology to test and improve covered systems.

"(iii) Enable survivability and lethality assessments of the warfighting capabilities of a covered system with respect to—

     "(I) communications;

     "(II) firepower;

     "(III) mobility;

     "(IV) catastrophic survivability; and

     "(V) lethality.

"(C) Demonstration activities.—

"(i) In general.—The Secretary, acting through the Director, shall carry out activities to demonstrate the digital technologies for full spectrum survivability testing developed under subparagraph (A).

"(ii) Program selection.—The Secretary shall assess and select not fewer than three and not more than ten programs of the Department to participate in the demonstration activities required under clause (i).

"(iii) Armed forces programs.—Of the programs selected pursuant to clause (ii), the Director shall select—

     "(I) at least one such program from the Army;

     "(II) at least one such program from the Navy or the Marine Corps; and

     "(III) at least one such program from the Air Force or the Space Force.

"(3) Regular survivability and lethality testing throughout life cycle.—

"(A) In general.—The Secretary, in coordination with covered officials, shall—

"(i) develop a process to regularly test through the use of digital technologies the survivability and lethality of each covered system against kinetic and non-kinetic threats throughout the life cycle of such system as threats evolve; and

"(ii) establish guidance for such testing.

"(B) Elements.—In carrying out subparagraph (A), the Secretary shall determine the following:

"(i) When to deploy digital technologies to provide timely and up-to-date insights with respect to covered systems without unduly delaying fielding of capabilities.

"(ii) The situations in which it may be necessary to develop and use digital technologies to assess legacy fleet vulnerabilities.

"(b) Reports and Briefing.—

"(1) Assessment and selection of programs.—Not later than 180 days after the date of the enactment of this Act [Dec. 27, 2021], the Secretary shall submit to the congressional defense committees [Committees on Armed Services and Appropriations of the Senate and the House of Representatives] a report that identifies the programs selected to participate in the demonstration activities under subsection (a)(2)(C).

"(2) Modernization and digitization report.—

"(A) In general.—Not later than March 15, 2023, the Director shall submit to the congressional defense committees a report that includes—

"(i) an assessment of the progress of the Secretary in carrying out subsection (a);

"(ii) an assessment of each of the demonstration activities carried out under subsection (a)(2)(C), including a comparison of—

     "(I) the risks, benefits, and costs of using digital technologies for live fire testing and evaluation; and

     "(II) the risks, benefits, and costs of traditional physical live fire testing approaches that—

"(aa) are not supported by digital technologies;

"(bb) do not include testing against non-kinetic threats; and

"(cc) do not include full spectrum survivability;

"(iii) an explanation of—

     "(I) how real-world operational and digital survivability and lethality testing data will be used to inform and enhance digital technology;

     "(II) the contribution of such data to the digital modernization efforts required under section 836 of the William M. (Mac) Thornberry National Defense Authorization Act for Fiscal Year 2021 (Public Law 116–283) [10 U.S.C. 3101 note]; and

     "(III) the contribution of such data to the decision-support processes for managing and overseeing acquisition programs of the Department;

"(iv) an assessment of the ability of the Department to perform full spectrum survivability and lethality testing of each covered system with respect to kinetic and non-kinetic threats;

"(v) an assessment of the processes implemented by the Department to manage digital technologies developed pursuant to subsection (a); and

"(vi) an assessment of the processes implemented by the Department to develop digital technology that can perform full spectrum survivability and lethality testing with respect to kinetic and non-kinetic threats.

"(B) Briefing.—Not later than April 14, 2023, the Director shall provide to the congressional defense committees a briefing that identifies any changes to existing law that may be necessary to implement subsection (a).

"(c) Definitions.—In this section:

"(1) The term 'covered officials' means—

"(A) the Under Secretary of Defense for Research and Engineering;

"(B) the Under Secretary of Defense for Acquisition and Sustainment;

"(C) the Chief Information Officer;

"(D) the Director;

"(E) the Director of Cost Assessment and Program Evaluation;

"(F) the Service Acquisition Executives;

"(G) the Service testing commands;

"(H) the Director of the Defense Digital Service; and

"(I) representatives from—

"(i) the Department of Defense Test Resource Management Center;

"(ii) the High Performance Computing Modernization Program Office; and

"(iii) the Joint Technical Coordination Group for Munitions Effectiveness.

"(2) The term 'covered system' means any warfighting capability that can degrade, disable, deceive, or destroy forces or missions.

"(3) The term 'Department' means the Department of Defense.

"(4) The term 'digital technologies' includes digital models, digital simulations, and digital twin capabilities that may be used to test the survivability and lethality of a covered system.

"(5) The term 'Director' means the Director of Operational Test and Evaluation.

"(6) The term 'full spectrum survivability and lethality testing' means a series of assessments of the effects of kinetic and non-kinetic threats on the communications, firepower, mobility, catastrophic survivability, and lethality of a covered system.

"(7) The term 'non-kinetic threats' means unconventional threats, including—

"(A) cyber attacks;

"(B) electromagnetic spectrum operations;

"(C) chemical, biological, radiological, nuclear effects and high yield explosives; and

"(D) directed energy weapons.

"(8) The term 'Secretary' means the Secretary of Defense."

§4173. Department of Defense Test Resource Management Center

(a) Establishment as Department of Defense Field Activity.—The Secretary of Defense shall establish within the Department of Defense under section 191 of this title a Department of Defense Test Resource Management Center (hereinafter in this section referred to as the "Center"). The Secretary shall designate the Center as a Department of Defense Field Activity.

(b) Director and Deputy Director.—(1) At the head of the Center shall be a Director, selected by the Secretary from among individuals who have substantial experience in the field of test and evaluation.

(2) There shall be a Deputy Director of the Center, selected by the Secretary from among individuals who have substantial experience in the field of test and evaluation. The Deputy Director shall act for, and exercise the powers of, the Director when the Director is disabled or the position of Director is vacant.

(c) Duties of Director.—(1) The Director shall have the following duties:

(A) To review and provide oversight of proposed Department of Defense budgets and expenditures for—

(i) the test and evaluation facilities and resources of the Major Range and Test Facility Base of the Department of Defense; and

(ii) all other test and evaluation facilities and resources within and outside of the Department of Defense, other than budgets and expenditures for activities described in section 139(j) of this title.

(B) To review proposed significant changes to the test and evaluation facilities and resources of the Major Range and Test Facility Base, including with respect to the expansion, divestment, consolidation, or curtailment of activities, before they are implemented by the Secretaries of the military departments or the heads of the Defense Agencies with test and evaluation responsibilities and advise the Secretary of Defense and the Under Secretary of Defense for Research and Engineering of the impact of such changes on the adequacy of such test and evaluation facilities and resources to meet the test and evaluation requirements of the Department.

(C) To complete and maintain the quadrennial strategic plan required by subsection (d).

(D) To review proposed budgets under subsection (e) and submit reports and certifications required by such subsection.

(E) To administer the Central Test and Evaluation Investment Program and the program of the Department of Defense for test and evaluation science and technology.

(F) To the extent practicable, to consult with the Secretary of the Army on installation infrastructure, workforce requirements, information technology, and other resources that support the activities of the Major Range and Test Facility Base.

(2) The Director shall have access to such records and data of the Department of Defense (including the appropriate records and data of each military department and Defense Agency) that are necessary in order to carry out the duties of the Director under this section.

(d) Quadrennial Strategic Plan for Department of Defense Test and Evaluation Resources.—(1) Not less often than once every four fiscal years, and within one year after release of the National Defense Strategy, the Under Secretary of Defense for Research and Engineering, in coordination with the Director of the Department of Defense Test Resource Management Center, the Director of Operational Test and Evaluation, the Director of the Defense Intelligence Agency, the Secretaries of the military departments, and the heads of Defense Agencies with test and evaluation responsibilities, shall complete a quadrennial strategic plan reflecting the future needs of the Department of Defense with respect to test and evaluation facilities and resources. Each quadrennial strategic plan shall cover the period of thirty fiscal years beginning with the fiscal year in which the plan is submitted under paragraph (3). The quadrennial strategic plan shall be based on a comprehensive review of both funded and unfunded test and evaluation requirements of the Department, future threats to national security, and the adequacy of the test and evaluation facilities and resources of the Department to meet those future requirements and threats.

(2) The quadrennial strategic plan shall include the following:

(A) An assessment of the test and evaluation requirements of the Department for the period covered by the plan.

(B) An identification of performance measures associated with the successful achievement of test and evaluation objectives for the period covered by the plan.

(C) An assessment of the test and evaluation facilities and resources that will be needed to meet current and future requirements for test and evaluation of the Department of Defense major weapon systems based on current and emerging threats.

(D) An assessment of the current state of the test and evaluation facilities and resources of the Department.

(E) An assessment of plans and business case analyses supporting any significant modification of the test and evaluation facilities and resources of the Department projected, proposed, or recommended by the Secretary of a military department or the head of a Defense Agency for such period, including with respect to the expansion, divestment, consolidation, or curtailment of activities.

(F) An itemization of acquisitions, upgrades, and improvements necessary to ensure that the test and evaluation facilities and resources of the Department are adequate to meet such requirements and satisfy such performance measures.

(G) An assessment of the budgetary resources necessary to implement such acquisitions, upgrades, and improvements.

(3) Upon completing a quadrennial strategic plan under paragraph (1), the Director shall submit to the Secretary of Defense a report on that plan. The report shall include the plan and a description of the review on which the plan is based.

(4) Not later than 60 days after the date on which the report is submitted under paragraph (3), the Secretary of Defense shall transmit to the Committee on Armed Services and Committee on Appropriations of the Senate and the Committee on Armed Services and Committee on Appropriations of the House of Representatives the report, together with any comments with respect to the report that the Secretary considers appropriate.

(5)(A) In addition to the quadrennial strategic plan completed under paragraph (1), the Director of the Department of Defense Test Resource Management Center shall also complete an annual update to the quadrennial strategic plan.

(B) Each annual update completed under subparagraph (A) shall include the following:

(i) A summary of changes to the assessment provided in the most recent quadrennial strategic plan.

(ii) Comments and recommendations the Director considers appropriate.

(iii) Test and evaluation challenges raised since the completion of the most recent quadrennial strategic plan.

(iv) Actions taken or planned to address such challenges.

(e) Certification of Budgets.—(1) The Secretary of Defense, acting through the Under Secretary of Defense (Comptroller), shall require that the Secretary of each military department and the head of each Defense Agency with test and evaluation responsibilities transmit such Secretary's or Defense Agency head's proposed budget for test and evaluation activities, including modeling and simulation activities, for a fiscal year and for the period covered by the future-years defense program submitted to Congress under section 221 of this title for that fiscal year to the Director of the Center for review under paragraph (2) before submitting such proposed budget to the Under Secretary of Defense (Comptroller).

(2)(A) The Director of the Center shall review each proposed budget transmitted under paragraph (1) and shall, not later than January 31 of the year preceding the fiscal year for which such budgets are proposed, submit to the Secretary of Defense a report containing the comments of the Director with respect to all such proposed budgets, together with the certification of the Director as to whether such proposed budgets are adequate.

(B) The Director shall also submit, together with such report and such certification, an additional certification as to whether such proposed budgets provide balanced support for such quadrennial strategic plan.

(3) The Secretary of Defense shall, not later than March 31 of the year preceding the fiscal year for which such budgets are proposed, submit to Congress a report on those proposed budgets which the Director has not certified under paragraph (2)(A) to be adequate. The report shall include the following matters:

(A) A discussion of the actions that the Secretary proposes to take, together with any recommended legislation that the Secretary considers appropriate, to address the inadequacy of the proposed budgets.

(B) Any additional comments that the Secretary considers appropriate regarding the inadequacy of the proposed budgets.

(f) Approval of Certain Modifications.—(1) The Secretary of a military department or the head of a Defense Agency with test and evaluation responsibilities may not implement a projected, proposed, or recommended significant modification of the test and evaluation facilities and resources of the Department, including with respect to the expansion, divestment, consolidation, or curtailment of activities, until—

(A) the Secretary or the head, as the case may be, submits to the Director a business case analysis for such modification; and

(B) the Director reviews such analysis and approves such modification.

(2) The Director shall submit to the Secretary of Defense an annual report containing the comments of the Director with respect to each business case analysis reviewed under paragraph (1)(B) during the year covered by the report.

(g) Supervision of Director by Under Secretary.—The Director of the Center shall be subject to the supervision of the Under Secretary of Defense for Research and Engineering. The Director shall report directly to the Under Secretary, without the interposition of any other supervising official.

(h) Administrative Support of Center.—The Secretary of Defense shall provide the Director with administrative support adequate for carrying out the Director's responsibilities under this section. The Secretary shall provide the support out of the headquarters activities of the Department or any other activities that the Secretary considers appropriate.

(i) Infrastructure on Kwajalein Atoll.—Beginning on the date of the enactment of this subsection and ending on October 1, 2030, for purposes of this section, any infrastructure located on Kwajalein Atoll that supports the operations of test and evaluation facilities of the Department of Defense shall be considered to be part of the Army Kwajalein Major Range and Test Facility Base and subject to the requirements of subsections (e) and (f).

(j) Definition.—In this section, the term "Major Range and Test Facility Base" means the test and evaluation facilities and resources that are designated by the Secretary of Defense as facilities and resources comprising the Major Range and Test Facility Base.

(Added Pub. L. 107–314, div. A, title II, §231(a)(1), Dec. 2, 2002, 116 Stat. 2487, §196; amended Pub. L. 108–136, div. A, title II, §212, Nov. 24, 2003, 117 Stat. 1416; Pub. L. 109–163, div. A, title II, §258(a), title IX, §902, Jan. 6, 2006, 119 Stat. 3185, 3397; Pub. L. 111–84, div. A, title II, §251, Oct. 28, 2009, 123 Stat. 2241; Pub. L. 113–291, div. A, title II, §214, Dec. 19, 2014, 128 Stat. 3326; Pub. L. 114–328, div. A, title V, §502(c), title X, §1081(a)(3), Dec. 23, 2016, 130 Stat. 2102, 2417; Pub. L. 115–91, div. A, title II, §222, Dec. 12, 2017, 131 Stat. 1333; Pub. L. 115–232, div. A, title II, §221, title IX, §904, Aug. 13, 2018, 132 Stat. 1681, 1922; renumbered §4173 and amended Pub. L. 116–283, div. A, title II, §272, title XVIII, §1845(b), Jan. 1, 2021, 134 Stat. 3502, 4247; Pub. L. 117–81, div. A, title X, §1081(a)(5), title XVII, §1701(u)(6)(B), Dec. 27, 2021, 135 Stat. 1919, 2154; Pub. L. 118–159, div. B, title XXVIII, §2871(a), (b), Dec. 23, 2024, 138 Stat. 2281.)

Editorial Notes

References in Text

The date of the enactment of this subsection, referred to in subsec. (i), is the date of enactment of Pub. L. 118–159, which was approved Dec. 23, 2024.

Amendments

2024—Subsec. (c)(1)(F). Pub. L. 118–159, §2871(a), added subpar. (F).

Subsecs. (i), (j). Pub. L. 118–159, §2871(b), added subsec. (i) and redesignated former subsec. (i) as (j).

2021—Pub. L. 116–283, §1845(b), as amended by Pub. L. 117–81, §1701(u)(6)(B), renumbered section 196 of this title as this section.

Subsec. (c)(1)(C). Pub. L. 116–283, §272(a)(1), inserted "quadrennial" before "strategic plan".

Subsec. (d). Pub. L. 117–81, §1081(a)(5), substituted "National Defense Strategy," for "National Defense Strategy,,".

Pub. L. 116–283, §272(a)(2), inserted "Quadrennial" before "Strategic Plan" in heading and "quadrennial" before "strategic plan" wherever appearing in text.

Subsec. (d)(1). Pub. L. 116–283, §272(e), which directed substitution of "Test Resource Management Center" for "Test Resources Management Center" in subsec. (d)(1) "of such", was executed by making substitution to "such section", meaning subsec. (d)(1) of this section, to reflect the probable intent of Congress.

Pub. L. 116–283, §272(b), substituted "four fiscal years, and within one year after release of the National Defense Strategy," for "two fiscal years" in first sentence.

Subsec. (d)(2)(C). Pub. L. 116–283, §272(c), substituted "for test and evaluation of the Department of Defense major weapon systems based on current and emerging threats." for "based on current and emerging threats and satisfy such performance measures."

Subsec. (d)(5). Pub. L. 116–283, §272(d), added par. (5).

Subsec. (e)(2)(B). Pub. L. 116–283, §272(a)(1), inserted "quadrennial" before "strategic plan".

2018—Subsec. (c)(1)(B). Pub. L. 115–232, §904, which directed substitution of "Under Secretary of Defense for Research and Engineering" for "Under Secretary of Defense for Acquisition, Technology, and Logistics", was executed by making the substitution for "Under Secretary of Acquisition, Technology, and Logistics" to reflect the probable intent of Congress.

Subsec. (d)(1). Pub. L. 115–232, §221(1), amended par. (1) generally. Prior to amendment, par. (1) read as follows: "Not less often than once every two fiscal years, the Director, in coordination with the Director of Operational Test and Evaluation, the Secretaries of the military departments, and the heads of Defense Agencies with test and evaluation responsibilities, shall complete a strategic plan reflecting the needs of the Department of Defense with respect to test and evaluation facilities and resources, including modeling and simulation capabilities. Each such strategic plan shall cover the period of ten fiscal years beginning with the fiscal year in which the plan is submitted under paragraph (3). The strategic plan shall be based on a comprehensive review of the test and evaluation requirements of the Department and the adequacy of the test and evaluation facilities and resources of the Department to meet those requirements."

Subsec. (d)(2)(C). Pub. L. 115–232, §221(2), substituted "needed to meet current and future requirements based on current and emerging threats" for "needed to meet such requirements".

Subsec. (g). Pub. L. 115–232, §904, substituted "Under Secretary of Defense for Research and Engineering" for "Under Secretary of Defense for Acquisition, Technology, and Logistics".

2017—Subsec. (d)(1). Pub. L. 115–91, §222(1), inserted ", including modeling and simulation capabilities" after "and resources" in the first sentence.

Subsec. (e)(1). Pub. L. 115–91, §222(2), inserted ", including modeling and simulation activities," after "evaluation activities".

2016—Subsec. (b)(1). Pub. L. 114–328, §502(c), struck out second and third sentences which read as follows: "A commissioned officer serving as the Director, while so serving, holds the grade of lieutenant general or, in the case of an officer of the Navy, vice admiral. A civilian officer or employee serving as the Director, while so serving, has a pay level equivalent in grade to lieutenant general."

Subsec. (c)(1)(A)(ii). Pub. L. 114–328, §1081(a)(3), substituted "section 139(j)" for "section 139(i)".

2014—Subsec. (c)(1)(B). Pub. L. 113–291, §214(a), inserted ", including with respect to the expansion, divestment, consolidation, or curtailment of activities," after "Base".

Subsec. (d)(2)(E) to (G). Pub. L. 113–291, §214(b), added subpar. (E) and redesignated former subpars. (E) and (F) as (F) and (G), respectively.

Subsec. (e)(1). Pub. L. 113–291, §214(c), inserted "and for the period covered by the future-years defense program submitted to Congress under section 221 of this title for that fiscal year" after "activities for a fiscal year".

Subsecs. (f) to (i). Pub. L. 113–291, §214(d), added subsec. (f) and redesignated former subsecs. (f) to (h) as (g) to (i), respectively.

2009—Subsec. (c). Pub. L. 111–84 inserted par. (1) designation before "The Director", redesignated former par. (1) as subpar. (A) and former subpars. (A) and (B) as cl. (i) and (ii), respectively, of subpar. (A), added subpar. (B), redesignated former pars. (2) to (4) as subpars. (C) to (E), respectively, and added par. (2).

2006—Subsec. (b)(1). Pub. L. 109–163, §902(a), substituted "individuals who have substantial experience in the field of test and evaluation." for "commissioned officers of the armed forces on active duty or from among senior civilian officers and employees of the Department of Defense."

Subsec. (b)(2). Pub. L. 109–163, §902(b), substituted "individuals" for "senior civilian officers and employees of the Department of Defense".

Subsec. (h). Pub. L. 109–163, §258(a), substituted "Secretary of Defense" for "Director of Operational Test and Evaluation".

2003—Subsec. (b)(1). Pub. L. 108–136, §212(a), substituted "on active duty or from among senior civilian officers and employees of the Department of Defense. A commissioned officer serving as the Director" for "on active duty. The Director" and inserted at end "A civilian officer or employee serving as the Director, while so serving, has a pay level equivalent in grade to lieutenant general."

Subsec. (c)(1)(B). Pub. L. 108–136, §212(b)(1), inserted ", other than budgets and expenditures for activities described in section 139(i) of this title" after "Department of Defense".

Subsec. (e)(1). Pub. L. 108–136, §212(b)(2), struck out ", the Director of Operational Test and Evaluation," after "each military department" and substituted "or Defense Agency head's" for ", Director's, or head's".

Statutory Notes and Related Subsidiaries

Effective Date of 2021 Amendment

Amendment by Pub. L. 117–81 applicable as if included in the enactment of title XVIII of Pub. L. 116–283 as enacted, see section 1701(a)(2) of Pub. L. 117–81, set out in a note preceding section 3001 of this title and note below.

Amendment by section 1845(b) of 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 a note preceding section 3001 of this title.

Termination of Reporting Requirements

For termination, effective Dec. 31, 2021, of provisions in subsecs. (d)(1), (4) and (e)(3) of this section requiring submittal of report to Congress, see section 1061 of Pub. L. 114–328, set out as a note under section 111 of this title.

Protection of Major Range and Test Facility Base

Pub. L. 117–81, div. A, title XVI, §1686, Dec. 27, 2021, 135 Stat. 2126, provided that: "The Secretary of Defense may authorize, consistent with the authorities of the Secretary, such actions as are necessary to mitigate threats posed by space-based assets to the security or operation of the Major Range and Test Facility Base (as defined in section 196(i) of title 10, United States Code) [now 10 U.S.C. 4173(j)]."

§4174. Contracts: acquisition, construction, or furnishing of test facilities and equipment

(a) A contract of a military department for research or development, or both, may provide for the acquisition or construction by, or furnishing to, the contractor, of research, developmental, or test facilities and equipment that the Secretary of the military department concerned determines to be necessary for the performance of the contract. The acquisition or construction of these research, developmental, or test facilities shall be subject to the cost principles applicable to allowable contract expenses. The facilities and equipment, and specialized housing for them, may be acquired or constructed at the expense of the United States, and may be lent or leased to the contractor with or without reimbursement, or may be sold to him at fair value. This subsection does not authorize new construction or improvements having general utility. The Secretary of Defense and the Secretaries of the military departments shall promulgate regulations necessary to give full force and effect to this section.

(b) Facilities that would not be readily removable or separable without unreasonable expense or unreasonable loss of value may not be installed or constructed under this section on property not owned by the United States, unless the contract contains—

(1) a provision for reimbursing the United States for the fair value of the facilities at the completion or termination of the contract or within a reasonable time thereafter;

(2) an option in the United States to acquire the underlying land; or

(3) an alternative provision that the Secretary concerned considers to be adequate to protect the interests of the United States in the facilities.

(c) Proceeds of sales or reimbursements under this section shall be paid into the Treasury as miscellaneous receipts, except to the extent otherwise authorized by law with respect to property acquired by the contractor.

(Aug. 10, 1956, ch. 1041, 70A Stat. 134, §2353; Pub. L. 115–232, div. B, title XXVIII, §2801, Aug. 13, 2018, 132 Stat. 2260; renumbered §4174 and amended Pub. L. 116–283, div. A, title XVIII, §§1844(b)(1), 1845(b), Jan. 1, 2021, 134 Stat. 4245, 4247; Pub. L. 117–81, div. A, title XVII, §1701(u)(5)(B), (6)(B), Dec. 27, 2021, 135 Stat. 2154.)

Historical and Revision Notes

Revised section	Source (U.S. Code)	Source (Statutes at Large)
2353(a)	5:235e (1st sentence; and 2d sentence, less 2d and last provisos). 5:475j (1st sentence; and 2d sentence, less 2d and last provisos).	July 16, 1952, ch. 882, §4 (less 3d and last sentences), 66 Stat. 725.
	5:628e (1st sentence; and 2d sentence, less 2d and last provisos).
2353(b)	5:235e (2d proviso of 2d sentence).
	5:475j (2d proviso of 2d sentence).
	5:628e (2d proviso of 2d sentence).
2353(c)	5:235e (last proviso of 2d sentence).
	5:475j (last proviso of 2d sentence).
	5:628e (last proviso of 2d sentence).

In subsection (a), the words "furnished to" and "for the use thereof" are omitted as surplusage.

In subsections (a) and (b), the words "United States" are substituted for the word "Government".

In subsection (b), the introductory clause is substituted for 5:235e (words of 2d proviso before clause (1)), 475j, and 628e. The words "that * * * considers" are substituted for the words "as will in the opinion". The words "an alternative" are substituted for the words "such other".

In subsection (c), the words "Proceeds of" are substituted for the words "That all moneys arising from".

Editorial Notes

Amendments

2021—Pub. L. 116–283, §1845(b), as amended by Pub. L. 117–81, §1701(u)(6)(B), renumbered section 2353 of this title as this section.

Pub. L. 116–283, §1844(b)(1), which directed the renumbering of section 2353 of this title as section 4141 instead of this section, was repealed by Pub. L. 117–81, §1701(u)(5)(B).

2018—Subsec. (a). Pub. L. 115–232 inserted after first sentence "The acquisition or construction of these research, developmental, or test facilities shall be subject to the cost principles applicable to allowable contract expenses." and at end "The Secretary of Defense and the Secretaries of the military departments shall promulgate regulations necessary to give full force and effect to this section."

Statutory Notes and Related Subsidiaries

Effective Date of 2021 Amendment

Amendment by Pub. L. 117–81 applicable as if included in the enactment of title XVIII of Pub. L. 116–283 as enacted, see section 1701(a)(2) of Pub. L. 117–81, set out in a note preceding section 3001 of this title and note below.

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 a note preceding section 3001 of this title.

Limitations on Modifications of Certain Government-Furnished Equipment; One-Time Authority To Transfer a Certain Military Prototype

Pub. L. 111–84, div. A, title X, §1043, Oct. 28, 2009, 123 Stat. 2456, as amended by Pub. L. 111–383, div. A, title X, §1075(d)(12), Jan. 7, 2011, 124 Stat. 4373, provided that:

"(a) Limitation.—An article of military equipment that is an end item of a major weapon system may not be furnished or transferred to a private entity for the conduct of research, development, test and evaluation under contractual agreement with the Department of Defense, if such research, development, test, and evaluation necessitates significantly modifying the military equipment, until the senior acquisition official of a military department, or his designee, submits to the congressional defense committees certification in writing—

"(1) that the modification of such article of military equipment is necessary to execute the contractual scope of work and there is no suitable alternative to modifying such article;

"(2) that the research, development, test, and evaluation effort is of sufficient interest to the military department to warrant the modification of such article of military equipment;

"(3) that—

"(A) prior to the end of the period of performance of such a contractual agreement, the article of military equipment will be restored to its original condition; or

"(B) it is not necessary to restore the article of military equipment to its original condition because the military department intends to dispose of the equipment or operate the equipment in its modified form.

"(4) that the private entity has sufficient resources and capability to fully perform the contractual research, development, test, and evaluation; and

"(5) that the military department has—

"(A) identified the scope of future test and evaluation likely to be required prior to transition of the associated technology to a program of record; and

"(B) a plan for the conduct of such future test and evaluation, including the anticipated roles and responsibilities of government and the private entity, as applicable.

"(b) Certification.—No military equipment that is an end item of a major weapons system may be transferred or furnished to a private entity for purposes of research and development as authorized under subsection (a) unless the senior officer of the military service concerned certifies to the congressional defense committees [Committees on Armed Services and Appropriations of the Senate and the House of Representatives] that such equipment is not essential to the defense of the United States.

"(c) One-time Authority to Transfer.—The Secretary of the Navy may transfer, to Piasecki Aircraft Corporation of Essington, Pennsylvania (in this section referred to as 'transferee'), all right, title, and interest of the United States, except as otherwise provided in this subsection, in and to Navy aircraft N40VT (Bureau Number 163283), also known as the X–49A aircraft, and associated components and test equipment, previously specified as Government-furnished equipment in contract N00019–00–C–0284. The transferee shall provide consideration for the transfer of such military equipment to the transferor of an amount not to exceed fair value, as determined, on a non-delegable basis, by the Secretary.

"(d) Applicable Law.—The transfer or use of military equipment is subject to all applicable Federal and State laws and regulations, including, but not limited to, the Arms Export Control Act [22 U.S.C. 2751 et seq.], the Export Administration Act of 1979 [50 U.S.C. 4601 et seq.], continued under Executive Order 12924 [listed in a table under 50 U.S.C. 1701], International Traffic in Arms Regulations (22 C.F.R. 120 et seq.), Export Administration Regulations (15 C.F.R. 730 et seq.), Foreign Assets Control Regulations (31 C.F.R. 500 et seq.), and the Espionage Act [act June 15, 1917, ch. 30, 40 Stat. 217, see Tables for classification].

"(e) Condition of Equipment to Be Transferred.—

"(1) As-is condition.—The military equipment transferred under subsection (c) shall be transferred in its current 'as-is' condition. The Secretary is not required to repair or alter the condition of any military equipment before transferring any interest in such equipment under subsection (c).

"(2) Spare parts or equipment.—The Secretary of the Navy is not required to provide spare parts or equipment as a result of the transfer authorized under subsection (c).

"(f) Transfer at No Cost to the United States.—The transfer of military equipment under subsection (c) shall be made at no cost to the United States. Any costs associated with the transfer shall be borne by the transferee.

"(g) Additional Terms and Conditions.—The Secretary shall require that the transfer authorized by section (c) be carried out by means of a written agreement and shall require, at a minimum, the following conditions to the transfer:

"(1) A condition stipulating that the transfer of the X-49A aircraft is for the sole purpose of further development, test, and evaluation of vectored thrust ducted propeller (hereinafter in this section referred to as 'VTDP') technology.

"(2) A condition providing the Government the right to procure the VTDP technology demonstrated under this program at a discounted cost based on the value of the X-49A aircraft and associated equipment at the time of transfer, with such valuation and terms determined by the Secretary.

"(3) A condition that the transferee not transfer any interest in, or transfer possession of, the military equipment transferred under subsection (b) to any other party without the prior written approval of the Secretary.

"(4) A condition that if the Secretary determines at any time that the transferee has failed to comply with a condition set forth in paragraphs (1) through (3), all items referred to in subsection (b) shall be transferred back to the Navy, at no cost to the United States.

"(5) A condition that the transferee acknowledges sole responsibility of the X-49A aircraft and associated equipment and assumes all liability for operation of the X-49A aircraft and associated equipment.

"(h) No Liability for the United States.—Upon the transfer of military equipment under subsection (b), the United States shall not be liable for any death, injury, loss, or damage that results from the use of such military equipment by any person other than the United States.

"(i) Additional Terms and Conditions.—The Secretary may require such additional terms and conditions in connection with a transfer under subsection (b) as the Secretary considers appropriate to protect the interests of the United States.

"(j) Definitions.—In this subsection:

"(1) The term 'major system' has the meaning provided in section 2302 of title 10, United States Code [see 10 U.S.C. 3041(a), (b)].

"(2) The term 'contractual agreement' includes contracts, grants, cooperative agreements, and other transactions."

§4175. Use of test and evaluation installations by commercial entities

(a) Contract Authority.—The Secretary of Defense may enter into contracts with commercial entities that desire to conduct commercial test and evaluation activities at a Major Range and Test Facility Installation.

(b) Termination or Limitation of Contract Under Certain Circumstances.—A contract entered into under subsection (a) shall contain a provision that the Secretary of Defense may terminate, prohibit, or suspend immediately any commercial test or evaluation activity to be conducted at the Major Range and Test Facility Installation under the contract if the Secretary of Defense certifies in writing that the test or evaluation activity is or would be detrimental—

(1) to the public health and safety;

(2) to property (either public or private); or

(3) to any national security interest or foreign policy interest of the United States.

(c) Contract Price.—A contract entered into under subsection (a) shall include a provision that requires a commercial entity using a Major Range and Test Facility Installation under the contract to reimburse the Department of Defense for all direct costs to the United States that are associated with the test and evaluation activities conducted by the commercial entity under the contract. In addition, the contract may include a provision that requires the commercial entity to reimburse the Department of Defense for such indirect costs related to the use of the installation as the Secretary of Defense considers to be appropriate. The Secretary may delegate to the commander of the Major Range and Test Facility Installation the authority to determine the appropriateness of the amount of indirect costs included in such a contract provision.

(d) Retention of Funds Collected From Commercial Users.—Amounts collected under subsection (c) from a commercial entity conducting test and evaluation activities at a Major Range and Test Facility Installation shall be credited to the appropriation accounts under which the costs associated with the test and evaluation activities of the commercial entity were incurred.

(e) Regulations and Limitations.—The Secretary of Defense shall prescribe regulations to carry out this section.

(f) Definitions.—In this section:

(1) The term "Major Range and Test Facility Installation" means a test and evaluation installation under the jurisdiction of the Department of Defense and designated as a Major Range and Test Facility Installation by the Secretary.

(2) The term "direct costs" includes the cost of—

(A) labor, material, facilities, utilities, equipment, supplies, and any other resources damaged or consumed during test or evaluation activities or maintained for a particular commercial entity; and

(B) construction specifically performed for a commercial entity to conduct test and evaluation activities.

(Added Pub. L. 103–160, div. A, title VIII, §846(a), Nov. 30, 1993, 107 Stat. 1722, §2681; amended Pub. L. 105–85, div. A, title VIII, §842, Nov. 18, 1997, 111 Stat. 1844; Pub. L. 105–261, div. A, title VIII, §820, Oct. 17, 1998, 112 Stat. 2090; renumbered §4175 and amended Pub. L. 116–283, div. A, title XVIII, §§1844(b)(1), 1845(b), Jan. 1, 2021, 134 Stat. 4245, 4247; Pub. L. 117–81, div. A, title XVII, §1701(u)(5)(B), (6)(B), Dec. 27, 2021, 135 Stat. 2154.)

Editorial Notes

Amendments

2021—Pub. L. 116–283, §1845(b), as amended by Pub. L. 117–81, §1701(u)(6)(B), renumbered section 2681 of this title as this section.

Pub. L. 116–283, §1844(b)(1), which directed the renumbering of section 2681 of this title as section 4144 of this title instead of this section, was repealed by Pub. L. 117–81, §1701(u)(5)(B).

1998—Subsec. (g). Pub. L. 105–261, §820(a), struck out heading and text of subsec. (g). Text read as follows: "The authority provided to the Secretary of Defense by subsection (a) shall terminate on September 30, 2002."

Subsec. (h). Pub. L. 105–261, §820(b), struck out heading and text of subsec. (h). Text read as follows: "Not later than March 1, 1998, the Secretary of Defense shall submit to the Committee on Armed Services of the Senate and the Committee on National Security of the House of Representatives a report identifying existing and proposed procedures to ensure that the use of Major Range and Test Facility Installations by commercial entities does not compete with private sector test and evaluation services."

1997—Subsec. (g). Pub. L. 105–85, §842(a), substituted "2002" for "1998".

Subsec. (h). Pub. L. 105–85, §842(b), amended subsec. (h) generally. Prior to amendment, subsec. (h) read as follows:

"(h) Report.—Not later than January 1, 1998, the Secretary of Defense shall submit to Congress a report describing the number and purposes of contracts entered into under subsection (a) and evaluating the extent to which the authority under this section is exercised to open Major Range and Test Facility Installations to commercial test and evaluation activities."

Statutory Notes and Related Subsidiaries

Effective Date of 2021 Amendment

Amendment by Pub. L. 117–81 applicable as if included in the enactment of title XVIII of Pub. L. 116–283 as enacted, see section 1701(a)(2) of Pub. L. 117–81, set out in a note preceding section 3001 of this title and note below.

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 a note preceding section 3001 of this title.

Subpart F—Major Systems, Major Defense Acquisition Programs, and Weapon Systems Development

Editorial Notes

Prior Provisions

A prior subpart F "Special Categories of Contracting: Research, Development, Test, and Evaluation", consisting of chapters 321 to 329, was repealed by Pub. L. 116–283, div. A, title XVIII, §1841(a)(1)(A), Jan. 1, 2021, 134 Stat. 4242.

CHAPTER 321—GENERAL MATTERS

        

Editorial Notes

Prior Provisions

A prior chapter 321 "RESEARCH AND DEVELOPMENT GENERALLY", consisting of reserved section 4201, was repealed by Pub. L. 116–283, div. A, title XVIII, §1841(a)(1)(A), Jan. 1, 2021, 134 Stat. 4242.

Statutory Notes and Related Subsidiaries

Enhanced Domestic Content Requirement for Major Defense Acquisition Programs

Pub. L. 118–31, div. A, title VIII, §835, Dec. 22, 2023, 137 Stat. 338, provided that:

"(a) Assessment Required.—

"(1) In general.—Not later than one year after the date of the enactment of this Act [Dec. 22, 2023], the Secretary of Defense shall submit to the congressional defense committees [Committees on Armed Services and Appropriations of the Senate and the House of Representatives] a report assessing the domestic source content of procurements carried out in connection with a major defense acquisition program.

"(2) Information repository.—The Secretary of Defense shall establish an information repository for the collection and analysis of information related to domestic source content for products the Secretary deems critical, where such information can be used for continuous data analysis and program management activities.

"(b) Enhanced Domestic Content Requirement.—

"(1) In general.—Except as provided in paragraph (2), for purposes of chapter 83 of title 41, United States Code, manufactured articles, materials, or supplies procured in connection with a major defense acquisition program are manufactured substantially all from articles, materials, or supplies mined, produced, or manufactured in the United States if the cost of such component articles, materials, or supplies—

"(A) supplied not later than the date of the enactment of this Act, exceeds 60 percent of cost of the manufactured articles, materials, or supplies procured;

"(B) supplied during the period beginning January 1, 2024, and ending December 31, 2028, exceeds 65 percent of the cost of the manufactured articles, materials, or supplies; and

"(C) supplied on or after January 1, 2029, exceeds 75 percent of the cost of the manufactured articles, materials, or supplies.

"(2) Exclusion for certain manufactured articles.—Paragraph (1) shall not apply to manufactured articles that consist wholly or predominantly of iron, steel, or a combination of iron and steel.

"(3) Rulemaking to create a fallback threshold.—

"(A) In general.—Not later than 180 days after the date of the enactment of this Act, the Secretary of Defense shall issue rules to determine the treatment of the lowest price offered for a foreign end product for which 55 percent or more of the component articles, materials, or supplies of such foreign end product are manufactured substantially all from articles, materials, or supplies mined, produced, or manufactured in the United States if—

"(i) the application of paragraph (1) results in an unreasonable cost; or

"(ii) no offers are submitted to supply manufactured articles, materials, or supplies manufactured substantially all from articles, materials, or supplies mined, produced, or manufactured in the United States.

"(B) Termination.—Rules issued under this paragraph shall cease to have force or effect on January 1, 2031.

"(4) Applicability.—The requirements of this subsection—

"(A) shall apply to contracts entered into on or after the date of the enactment of this Act [Dec. 22, 2023];

"(B) shall not apply to articles manufactured in countries that have executed a reciprocal defense procurement memorandum of understanding with the United States entered into pursuant to section 4851 of title 10, United States Code; and

"(C) shall not apply to a country that is a member of the national technology and industrial base (as defined by section 4801 of title 10, United States Code).

"(c) Major Defense Acquisition Program Defined.—The term 'major defense acquisition program' has the meaning given in section 4201 of title 10, United States Code."

Penalty for Cost Overruns

Pub. L. 114–92, div. A, title VIII, §828, Nov. 25, 2015, 129 Stat. 910, as amended by Pub. L. 115–91, div. A, title VIII, §825, Dec. 12, 2017, 131 Stat. 1466; Pub. L. 115–232, div. A, title X, §1081(d), Aug. 13, 2018, 132 Stat. 1986; Pub. L. 116–92, div. A, title VIII, §805(a), (b)(2), Dec. 20, 2019, 133 Stat. 1485, which required the Secretary of each military department to pay a penalty for cost overruns on the covered major defense acquisition programs of the military department for fiscal years 2018 and 2019, was repealed by Pub. L. 118–159, div. A, title VIII, §811(a)(1)(D), Dec. 23, 2024, 138 Stat. 1979.

[Pub. L. 115–91, div. A, title VIII, §825(b), Dec. 12, 2017, 131 Stat. 1466, which provided that the requirements of section 828 of Pub. L. 114–92, as in effect on the day before Dec. 12, 2017, would continue to apply with respect to fiscal years beginning on or before Oct. 1, 2016, was repealed by Pub. L. 116–92, div. A, title VIII, §805(b)(1), Dec. 20, 2019, 133 Stat. 1485.]

§4201. Major defense acquisition programs: definition; exceptions

(a) Definition.—Except as provided under subsection (b), in this part, the term "major defense acquisition program" means a Department of Defense acquisition program that is not a highly sensitive classified program (as determined by the Secretary of Defense) and—

(1) that is designated by the Secretary of Defense as a major defense acquisition program; or

(2) in the case of a program that is not a program for the acquisition of an automated information system (either a product or a service), that is estimated by the Secretary of Defense to require—

(A) an eventual total expenditure for research, development, test, and evaluation of more than $300,000,000 (based on fiscal year 1990 constant dollars); or

(B) an eventual total expenditure for procurement, including all planned increments or spirals, of more than $1,800,000,000 (based on fiscal year 1990 constant dollars).

(b) Exceptions.—In this part, the term "major defense acquisition program" does not include the following:

(1) An acquisition program or project that is carried out using the rapid fielding or rapid prototyping acquisition pathway under section 3602 of this title.

(2) An acquisition program for a defense business system (as defined in section 2222(i)(1) of this title) carried out using the acquisition guidance issued pursuant to section 883(e) of the National Defense Authorization Act for Fiscal Year 2016 (Public Law 114–92; 10 U.S.C. 2223a note).¹

(Added and amended Pub. L. 116–283, div. A, title XVIII, §1846(b), (c), Jan. 1, 2021, 134 Stat. 4248; Pub. L. 118–159, div. A, title VIII, §804(c)(2), Dec. 23, 2024, 138 Stat. 1968.)

Editorial Notes

References in Text

Section 883(e) of the National Defense Authorization Act for Fiscal Year 2016, referred to in subsec. (b)(2), is section 883(e) of Pub. L. 114–92, which is set out as a note preceding section 4571 of this title.

Codification

The text of subsec. (a) of section 2430 of this title, which was transferred to this section and amended by Pub. L. 116–283, §1846(c)(1), was based on Pub. L. 100–26, §7(b)(2)(A), Apr. 21, 1987, 101 Stat. 279; Pub. L. 102–484, div. A, title VIII, §817(b)(1), (2), Oct. 23, 1992, 106 Stat. 2455; Pub. L. 111–23, title II, §206(b)(1), May 22, 2009, 123 Stat. 1728; Pub. L. 114–328, div. A, title VIII, §847(a), Dec. 23, 2016, 130 Stat. 2292; Pub. L. 115–91, div. A, title VIII, §831, Dec. 12, 2017, 131 Stat. 1467.

Amendments

2024—Subsec. (b)(1). Pub. L. 118–159, which directed substitution of "section 3602 of this title" for "section 804 of the National Defense Authorization Act for Fiscal Year 2016 (Public Law 114–92; 10 U.S.C. 3201 note prec.)", was executed by making the substitution for "section 804 of the National Defense Authorization Act for Fiscal Year 2016 (Public Law 114–92; 10 U.S.C. 2302 note)" to reflect the probable intent of Congress.

2021—Pub. L. 116–283, §1846(c)(1), transferred subsec. (a) of section 2430 of this title to this section, struck out par. (1) designation, inserted subsec. (a) heading, substituted "under subsection (b), in this part" for "under paragraph (2), in this chapter", redesignated par. (2) as subsec. (b) and subpars. (A) and (B) of subsecs. (a) and (b) as pars. (1) and (2) of subsecs. (a) and (b), respectively, inserted subsec. (b) heading, and substituted "In this part" for "In this chapter" in introductory provisions of subsec. (b).

Subsec. (a)(2). Pub. L. 116–283, §1846(c)(2), substituted "to require—" for "to require", inserted subpar. (A) designation before "an eventual total expenditure for research" and subpar. (B) designation before "an eventual total expenditure for procurement" and substituted "dollars); or" for "dollars) or".

Subsec. (b). Pub. L. 116–283, §1846(c)(3), in introductory provisions, substituted "include the following:" for "include—", in par. (1), substituted "An" for "an" and period at end for "; or" and in par. (2), substituted "An" for "an".

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.

¹ See References in Text note below.

§4202. Authority to increase definitional threshold amounts: major defense acquisition programs; major systems

(a) Adjustments to Thresholds for Major Defense Acquisition Programs.—

(1) Authority.—The Secretary of Defense may adjust the amounts (and the base fiscal year) provided in section 4201(a)(2) of this title on the basis of Department of Defense escalation rates.

(2) Matters to be considered.—For purposes of section 4201(a)(2) of this title, the Secretary shall consider, as applicable, the following:

(A) The estimated level of resources required to fulfill the relevant joint military requirement, as determined by the Joint Requirements Oversight Council pursuant to section 181 of this title.

(B) The cost estimate referred to in section 4251(a)(6) of this title.

(C) The cost estimate referred to in section 4252(a)(1)(C) of this title.

(D) The cost estimate within a baseline description as required by section 4214 of this title.

(b) Adjustment Authority for Major Systems.—

(1) Authority.—The Secretary of Defense may adjust the amounts and the base fiscal year provided in section 3041(c)(1) of this title on the basis of Department of Defense escalation rates.

(2) Rounding.—An amount, as adjusted under paragraph (1), that is not evenly divisible by $5,000,000 shall be rounded to the nearest multiple of $5,000,000. In the case of an amount that is evenly divisible by $2,500,000 but not evenly divisible by $5,000,000, the amount shall be rounded to the next higher multiple of $5,000,000.

(c) Notification to Congressional Committees.—An adjustment under subsection (a) or (b) shall be effective after the Secretary transmits to the Committee on Armed Services of the Senate and the Committee on Armed Services of the House of Representatives a written notification of the adjustment.

(Added and amended Pub. L. 116–283, div. A, title XVIII, §1846(b), (d), (e), Jan. 1, 2021, 134 Stat. 4248, 4249.)

Editorial Notes

Codification

The text of subsecs. (b) and (c) of section 2430 of this title, which was transferred to this section, redesignated as pars. (1) and (2) of subsec. (a), respectively, and amended by Pub. L. 116–283, §1846(d)(1), (2)(A), was based on Pub. L. 102–484, div. A, title VIII, §817(b)(3), Oct. 23, 1992, 106 Stat. 2455; Pub. L. 104–106, div. A, title XV, §1502(a)(1), Feb. 10, 1996, 110 Stat. 502; Pub. L. 106–65, div. A, title X, §1067(1), Oct. 5, 1999, 113 Stat. 774; Pub. L. 111–23, title II, §206(b)(2), May 22, 2009, 123 Stat. 1728; Pub. L. 113–291, div. A, title X, §1071(f)(18), Dec. 19, 2014, 128 Stat. 3511; Pub. L. 115–91, div. A, title X, §1081(a)(38), Dec. 12, 2017, 131 Stat. 1596.

The text of subsec. (c) of section 2302d of this title, which was transferred to this section and redesignated as subsecs. (b) and (c) by Pub. L. 116–283, §1846(e)(1), was based on Pub. L. 104–201, div. A, title VIII, §805(a)(2), Sept. 23, 1996, 110 Stat. 2605; Pub. L. 106–65, div. A, title X, §1067(1), Oct. 5, 1999, 113 Stat. 774.

Amendments

2021—Subsec. (a). Pub. L. 116–283, §1846(d)(2)(A), (B), inserted subsec. heading and par. (1) designation and heading before "The Secretary" and substituted "in section 4201(a)(2) of this title" for "in subsection (a)(1)(B)".

Pub. L. 116–283, §1846(d)(1), transferred subsecs. (b) and (c) of section 2430 of this title to this section, redesignated subsec. (b) and subsec. (c) and its pars. (1) to (4) as subsec. (a) and subsec. (a)(2) and its subpars. (A) to (D), respectively, realigned margin of subsec. (a)(2), and struck out second sentence of subsec. (a)(1) as redesignated which read as follows: "An adjustment under this subsection shall be effective after the Secretary transmits a written notification of the adjustment to the Committee on Armed Services of the Senate and the Committee on Armed Services of the House of Representatives."

Subsec. (a)(2). Pub. L. 116–283, §1846(d)(2)(C)(i), (ii), inserted par. heading before "For purposes of" and substituted "section 4201(a)(2) of this title" for "subsection (a)(1)(B)".

Subsec. (a)(2)(B). Pub. L. 116–283, §1846(d)(2)(C)(iii), substituted "section 4251(a)(6)" for "section 2366a(a)(6)".

Subsec. (a)(2)(C). Pub. L. 116–283, §1846(d)(2)(C)(iv), substituted "section 4252(a)(1)(C)" for "section 2366b(a)(1)(C)".

Subsec. (a)(2)(D). Pub. L. 116–283, §1846(d)(2)(C)(v), substituted "section 4214" for "section 2435".

Subsec. (b). Pub. L. 116–283, §1846(e)(2), substituted "Adjustment Authority for Major Systems" for "Adjustment Authority" in subsec. heading, inserted par. headings, substituted "section 3041(c)(1) of this title" for "subsection (a)" in par. (1), and realigned margins of par. (2).

Pub. L. 116–283, §1846(e)(1), transferred subsec. (c) of section 2302d of this title to subsec. (b) of this section and redesignated par. (3) as subsec. (c).

Subsec. (c). Pub. L. 116–283, §1846(e)(3), inserted heading and substituted "under subsection (a) or (b)" for "under this subsection" in text.

Pub. L. 116–283, §1846(e)(1)(B), redesignated par. (3) of subsec. (b) as subsec. (c).

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.

§4203. Major subprograms

(a) Authority To Designate Major Subprograms as Subject to Acquisition Reporting Requirements.—(1)(A) If the Secretary of Defense determines that a major defense acquisition program requires the delivery of two or more categories of end items which differ significantly from each other in form and function, the Secretary may designate each such category of end items as a major subprogram for the purposes of acquisition reporting under this subpart.

(B) If the Secretary of Defense determines that a major defense acquisition program requires the delivery of two or more increments or blocks, the Secretary may designate each such increment or block as a major subprogram for the purposes of acquisition reporting under this subpart.

(2) The Secretary shall notify the congressional defense committees in writing of any proposed designation pursuant to paragraph (1) not less than 30 days before the date such designation takes effect.

(b) Reporting Requirements.—(1) If the Secretary designates a major subprogram of a major defense acquisition program in accordance with subsection (a), Selected Acquisition Reports, unit cost reports, and program baselines under this subpart shall reflect cost, schedule, and performance information—

(A) for the major defense acquisition program as a whole (other than as provided in paragraph (2)); and

(B) for each major subprogram of the major defense acquisition program so designated.

(2) For a major defense acquisition program for which a designation of a major subprogram has been made under subsection (a), unit costs under this subpart shall be submitted in accordance with the definitions in subsection (d).

(c) Requirement to Cover Entire Major Defense Acquisition Program.—If a subprogram of a major defense acquisition program is designated as a major subprogram under subsection (a), all other elements of the major defense acquisition program shall be appropriately organized into one or more subprograms under the major defense acquisition program, each of which subprograms, as so organized, shall be treated as a major subprogram under subsection (a).

(d) Definitions.—Notwithstanding paragraphs (1) and (2) of section 4351(a) of this title, in the case of a major defense acquisition program for which the Secretary has designated one or more major subprograms under this section for the purposes of this subpart—

(1) the term "program acquisition unit cost" applies at the level of the subprogram and means the total cost for the development and procurement of, and specific military construction for, the major defense acquisition program that is reasonably allocable to each such major subprogram, divided by the relevant number of fully-configured end items to be produced under such major subprogram;

(2) the term "procurement unit cost" applies at the level of the subprogram and means the total of all funds programmed to be available for obligation for procurement for each such major subprogram, divided by the number of fully-configured end items to be procured under such major subprogram;

(3) the term "major contract", with respect to a designated major subprogram, means each of the six largest prime, associate, or Government furnished equipment contracts under the subprogram that is in excess of $40,000,000 and that is not a firm-fixed price contract; and

(4) the term "life cycle cost", with respect to a designated major subprogram, means all costs of development, procurement, military construction, and operations and support, without regard to funding source or management control.

(Added Pub. L. 110–417, [div. A], title VIII, §811(a)(1), Oct. 14, 2008, 122 Stat. 4520, §2430a; amended Pub. L. 111–383, div. A, title VIII, §814(a), Jan. 7, 2011, 124 Stat. 4266; Pub. L. 112–81, div. A, title IX, §912, Dec. 31, 2011, 125 Stat. 1536; Pub. L. 114–328, div. A, title VIII, §850, Dec. 23, 2016, 130 Stat. 2295; renumbered §4203 and amended Pub. L. 116–283, div. A, title XVIII, §1846(g), Jan. 1, 2021, 134 Stat. 4251; Pub. L. 117–81, div. A, title XVII, §1701(o)(6)(B)(ii), Dec. 27, 2021, 135 Stat. 2147.)

Editorial Notes

Amendments

2021—Pub. L. 116–283, §1846(g)(2), substituted "this subpart" for "this chapter" wherever appearing.

Pub. L. 116–283, §1846(g), renumbered section 2430a of this title as this section.

Subsec. (d). Pub. L. 116–283, §1846(g)(1), as amended by Pub. L. 117–81, §1701(o)(6)(B)(ii), substituted "section 4351(a)" for "section 2432(a)" in introductory provisions.

2016—Subsec. (a)(1)(B). Pub. L. 114–328, which directed substitution of "major defense acquisition program requires the delivery of two or more increments or blocks" for "major defense acquisition program to purchase satellites requires the delivery of satellites in two or more increments or blocks" in par. (1)(B), was executed by making the substitution in par. (1)(B) of subsec. (a), to reflect the probable intent of Congress.

2011—Subsec. (a)(1). Pub. L. 112–81 designated existing provisions as subpar. (A) and added subpar. (B).

Subsec. (b). Pub. L. 111–383 designated existing provisions as par. (1), redesignated former pars. (1) and (2) as subpars. (A) and (B), respectively, of par. (1), inserted "(other than as provided in paragraph (2))" before semicolon in subpar. (A), and added par. (2).

Statutory Notes and Related Subsidiaries

Effective Date of 2021 Amendment

Amendment by Pub. L. 117–81 applicable as if included in the enactment of title XVIII of Pub. L. 116–283 as enacted, see section 1701(a)(2) of Pub. L. 117–81, set out in a note preceding section 3001 of this title and note below.

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 a note preceding section 3001 of this title.

§4204. Milestone decision authority

(a) Service Acquisition Executive.—The milestone decision authority for a major defense acquisition program reaching Milestone A after October 1, 2016, shall be the service acquisition executive of the military department that is managing the program, unless the Secretary of Defense designates, under subsection (b), another official to serve as the milestone decision authority.

(b) Designation of Alternate Milestone Decision Authority.—The Secretary of Defense may designate an alternate milestone decision authority for a program with respect to which any of the following applies:

(1) Subject to subsection (f), the Secretary determines that the program is addressing a joint requirement.

(2) The Secretary determines that the program is best managed by a Defense Agency.

(3) The program has incurred a unit cost increase greater than the significant cost threshold or critical cost threshold under sections 4371 through 4375 of this title.

(4) The program is critical to a major interagency requirement or technology development effort, or has significant international partner involvement.

(5) The Secretary determines that an alternate official serving as the milestone decision authority will best provide for the program to achieve desired cost, schedule, and performance outcomes.

(c) Reversion to Service Acquisition Executive.—

(1) After designating an alternate milestone decision authority under subsection (b) for a program, the Secretary of Defense may revert the position of milestone decision authority for the program back to the service acquisition executive upon request of the Secretary of the military department concerned. A decision on the request shall be made within 180 days after receipt of the request from the Secretary of the military department concerned.

(2) If the Secretary of Defense denies the request for reversion of the milestone decision authority back to the service acquisition executive, the Secretary shall report to the congressional defense committees on the basis of the Secretary's decision that an alternate official serving as milestone decision authority will best provide for the program to achieve desired cost, schedule, and performance outcomes. No such reversion is authorized after a program has incurred a unit cost increase greater than the significant cost threshold or critical cost threshold under sections 4371 through 4375 of this title, except in exceptional circumstances.

(d) Certifications relating to program requirements and funding.—For each major defense acquisition program, the Secretary of the military department concerned and the Chief of the armed force concerned shall, in each Selected Acquisition Report required under section 4351 of this title—

(1) certify that program requirements are stable and funding is adequate to meet cost, schedule, and performance objectives for the program; and

(2) identify and report to the congressional defense committees on any increased risk to the program since the last report.

(e) Documentation and Oversight.—The Secretary of Defense shall review the acquisition oversight process for major defense acquisition programs and shall—

(1) limit outside requirements for documentation to an absolute minimum on those programs where the service acquisition executive of the military department that is managing the program is the milestone decision authority; and

(2) ensure that any policies, procedures, and activities related to oversight efforts conducted outside of the military departments with regard to major defense acquisition programs shall be implemented in a manner that does not unnecessarily increase program costs or impede program schedules.

(Added and amended Pub. L. 116–283, div. A, title XVIII, §1846(b), (f)(1)–(7), Jan. 1, 2021, 134 Stat. 4248, 4250, 4251; Pub. L. 117–81, div. A, title XVII, §1701(b)(15)(A), (o)(6)(B)(i), Dec. 27, 2021, 135 Stat. 2134, 2147; Pub. L. 118–159, div. A, title VIII, §811(c), Dec. 23, 2024, 138 Stat. 1979.)

Editorial Notes

Codification

The text of subsec. (d) of section 2430 of this title, which was transferred to this section, redesignated as subsecs. (a) to (f) and amended by Pub. L. 116–283, §1846(f)(1), (5)(B), was based on Pub. L. 114–92, div. A, title VIII, §825(a), Nov. 25, 2015, 129 Stat. 907; Pub. L. 114–328, div. A, title VIII, §807(b), Dec. 23, 2016, 130 Stat. 2261.

Amendments

2024—Subsec. (f). Pub. L. 118–159 struck out subsec. (f). Text read as follows: "The authority of the Secretary of Defense to designate an alternative milestone decision authority for a program with respect to which the Secretary determines that the program is addressing a joint requirement, as set forth in subsection (b)(1), shall apply only for a major defense acquisition program that reaches Milestone A after October 1, 2016, and before October 1, 2019."

2021—Pub. L. 116–283, §1846(f)(1), transferred subsec. (d) of section 2430 of this title to this section, struck out subsec. designation, and redesignated pars. (1) to (5) as subsecs. (a) to (d), and (f), respectively.

Subsec. (a). Pub. L. 116–283, §1846(f)(2), inserted subsec. heading and substituted "under subsection (b)" for "under paragraph (2)".

Subsec. (b). Pub. L. 116–283, §1846(f)(3)(A)–(C), inserted subsec. heading, substituted "to which any of the following applies:" for "to which—" in introductory provisions, and redesignated subpars. (A) to (E) as pars. (1) to (5), respectively.

Subsec. (b)(1). Pub. L. 116–283, §1846(f)(3)(D), (G), substituted "Subject to subsection (f)" for "subject to paragraph (5)" and period for semimcolon at end.

Subsec. (b)(2). Pub. L. 116–283, §1846(f)(3)(F), (G), substituted "The Secretary" for "the Secretary" and period for semicolon at end.

Subsec. (b)(3). Pub. L. 116–283, §1846(f)(3)(E)–(G), substituted "The program" for "the program", "sections 4371 through 4375" for "section 2433" and period for semicolon at end.

Subsec. (b)(4). Pub. L. 116–283, §1846(f)(3)(F), (H), substituted "The program" for "the program" and period at end for "; or".

Subsec. (b)(5). Pub. L. 116–283, §1846(f)(3)(F), substituted "The Secretary" for "the Secretary".

Subsec. (c). Pub. L. 116–283, §1846(f)(4), inserted subsec. heading, redesignated subpars. (A) and (B) as pars. (1) and (2), respectively, realigned margins, and substituted "under subsection (b)" for "under paragraph (2)" in par. (1) and "sections 4371 through 4375" for "section 2433" in par. (2).

Subsec. (d). Pub. L. 116–283, §1846(f)(5), as amended by Pub. L. 117–81, §1701(o)(6)(B)(i), inserted subsec. heading, struck out subpar. (A) designation before "For each", substituted "under section 4351 of this title—" for "under section 2432 of this title,", inserted par. (1) designation before "certify that", substituted "the program; and" for "the program and", inserted par. (2) designation before "identify and report", and redesignated subpar. (B) as subsec. (e).

Subsec. (e). Pub. L. 116–283, §1846(f)(6), as amended by Pub. L. 117–81, §1701(b)(15)(A), inserted subsec. heading, substituted "programs and shall—" for "programs and shall", inserted par. (1) designation before "limit outside requirements", substituted "decision authority; and" for "decision authority and", and inserted par. (2) designation before "ensure that".

Pub. L. 116–283, §1846(f)(5)(B), redesignated subpar. (B) of subsec. (d) as subsec. (e).

Subsec. (f). Pub. L. 116–283, §1846(f)(7), inserted subsec. heading and substituted "in subsection (b)(1)" for "in paragraph (2)(A)".

Statutory Notes and Related Subsidiaries

Effective Date of 2021 Amendment

Amendment by Pub. L. 117–81 applicable as if included in the enactment of title XVIII of Pub. L. 116–283 as enacted, see section 1701(a)(2) of Pub. L. 117–81, set out in a note preceding section 3001 of this title and Effective Date note below.

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 note preceding section 3001 of this title.

§4205. Weapon systems for which procurement funding requested in budget: development and procurement schedules

(a) The Secretary of Defense shall submit to Congress each calendar year, not later than 45 days after the President submits the budget to Congress under section 1105 of title 31, budget justification documents regarding development and procurement schedules for each weapon system for which fund authorization is required by section 114(a) of this title, and for which any funds for procurement are requested in that budget. The documents shall include data on operational testing and evaluation for each weapon system for which funds for procurement are requested (other than funds requested only for the procurement of units for operational testing and evaluation, or long lead-time items, or both). A weapon system shall also be included in the annual documents required under this subsection in each year thereafter until procurement of that system has been completed or terminated, or the Secretary of Defense certifies, in writing, that such inclusion would not serve any useful purpose and gives his reasons therefor.

(b) Any documents required to be submitted under subsection (a) shall include detailed and summarized information with respect to each weapon system covered and shall specifically include each of the following:

(1) The development schedule, including estimated annual costs until development is completed.

(2) The planned procurement schedule, including the best estimate of the Secretary of Defense of the annual costs and units to be procured until procurement is completed.

(3) To the extent required by the second sentence of subsection (a), the result of all operational testing and evaluation up to the time of the submission of the documents, or, if operational testing and evaluation has not been conducted, a statement of the reasons therefor and the results of such other testing and evaluation as has been conducted.

(4)(A) The most efficient production rate, the most efficient acquisition rate, and the minimum sustaining rate, consistent with the program priority established for such weapon system by the Secretary concerned.

(B) In this paragraph:

(i) The term "most efficient production rate" means the maximum rate for each budget year at which the weapon system can be produced with existing or planned plant capacity and tooling, with one shift a day running for eight hours a day and five days a week.

(ii) The term "minimum sustaining rate" means the production rate for each budget year that is necessary to keep production lines open while maintaining a base of responsive vendors and suppliers.

(c) In the case of any weapon system for which procurement funds have not been previously requested and for which funds are first requested by the President in any fiscal year after the Budget for that fiscal year has been submitted to Congress, the same documentation requirements shall be applicable to that system in the same manner and to the same extent as if funds had been requested for that system in that budget.

(Added Pub. L. 93–155, title VIII, §803(a), Nov. 16, 1973, 87 Stat. 614, §139, §2431; amended Pub. L. 94–106, title VIII, §805, Oct. 7, 1975, 89 Stat. 538; Pub. L. 96–513, title V, §511(5), Dec. 12, 1980, 94 Stat. 2920; Pub. L. 97–86, title IX, §909(c), Dec. 1, 1981, 95 Stat. 1120; Pub. L. 97–258, §3(b)(1), Sept. 13, 1982, 96 Stat. 1063; Pub. L. 98–525, title XIV, §1405(3), Oct. 19, 1984, 98 Stat. 2621; renumbered §2431 and amended Pub. L. 99–433, title I, §§101(a)(5), 110(d)(12), (g)(6), Oct. 1, 1986, 100 Stat. 995, 1003, 1004; Pub. L. 100–180, div. A, title XIII, §1314(a)(1), Dec. 4, 1987, 101 Stat. 1175; Pub. L. 101–510, div. A, title XIII, §1301(13), title XIV, §1484(f)(3), Nov. 5, 1990, 104 Stat. 1668, 1717; Pub. L. 103–355, title III, §3001, Oct. 13, 1994, 108 Stat. 3327; Pub. L. 104–106, div. D, title XLIII, §4321(b)(18), Feb. 10, 1996, 110 Stat. 673; renumbered §4205 and amended Pub. L. 116–283, div. A, title XVIII, §1846(h), Jan. 1, 2021, 134 Stat. 4251.)

Editorial Notes

Prior Provisions

Provisions similar to those in this section were contained in Pub. L. 92–156, title V, §506, Nov. 17, 1971, 85 Stat. 429, prior to repeal by Pub. L. 93–155, §803(b)(2).

Amendments

2021—Pub. L. 116–283, §1846(h)(2), amended section catchline generally. Prior to amendment, section catchline read as follows: "Weapons development and procurement schedules".

Pub. L. 116–283, §1846(h)(1), renumbered section 2431 of this title as this section.

1996—Subsec. (b). Pub. L. 104–106, §4321(b)(18)(A)(i), substituted "Any documents" for "Any report" in first sentence.

Subsec. (b)(3). Pub. L. 104–106, §4321(b)(18)(A)(ii), substituted "the documents" for "the report".

Subsec. (c). Pub. L. 104–106, §4321(b)(18)(B), substituted "documentation" for "reporting".

1994—Subsec. (a). Pub. L. 103–355, §3001(a), substituted "not later than 45 days after" for "at the same time" and "budget justification documents" for "a written report" in first sentence and "documents" for "report" in second and third sentences.

Subsec. (b). Pub. L. 103–355, §3001(b)(1), substituted "include each of the following:" for "include—" in introductory provisions.

Subsec. (b)(1) to (3). Pub. L. 103–355, §3001(b)(2)–(4), capitalized first letter of first word in pars. (1) to (3) and substituted period for semicolon at end of pars. (1) and (2) and period for "; and" at end of par. (3).

Subsec. (b)(4). Pub. L. 103–355, §3001(b)(5) amended par. (4) generally. Prior to amendment, par. (4) read as follows: "the most efficient production rate and the most efficient acquisition rate consistent with the program priority established for such weapon system by the Secretary concerned."

1990—Subsec. (b). Pub. L. 101–510, §1484(f)(3), substituted "covered and shall specifically include" for "covered, and specifically include, but not be limited to" in introductory provisions.

Pub. L. 101–510, §1301(13), redesignated subsec. (c) as (b), struck out "or (b)" after "under subsection (a)", and struck out former subsec. (b) which read as follows: "The Secretary of Defense shall submit a supplemental report to Congress not less than 30, or more than 90, days before the award of any contract, or the exercise of any option in a contract, for the procurement of any such weapon system (other than procurement of units for operational testing and evaluation, or long lead-time items, or both), unless—

"(1) the contractor or contractors for that system have not yet been selected and the Secretary of Defense determines that the submission of that report would adversely affect the source selection process and notifies Congress in writing, prior to such award, of that determination, stating his reasons therefor; or

"(2) the Secretary of Defense determines that the submission of that report would otherwise adversely affect the vital security interests of the United States and notifies Congress in writing of that determination at least 30 days prior to the award, stating his reasons therefor."

Subsecs. (c), (d). Pub. L. 101–510, §1301(13)(C), redesignated subsecs. (c) and (d) as (b) and (c), respectively.

1987—Pub. L. 100–180 made technical amendment to directory language of Pub. L. 99–433, §101(a)(5). See 1986 Amendment note below.

1986—Pub. L. 99–433, §101(a)(5), as amended by Pub. L. 100–180, §1314(a)(1), renumbered section 139 of this title as section 2431.

Pub. L. 99–433, §110(d)(12), substituted "Weapons development and procurement schedules" for "Secretary of Defense: weapons development and procurement schedules for armed forces; reports; supplemental reports" in section catchline.

Subsec. (a). Pub. L. 99–433, §110(g)(6), substituted "section 114(a)" for "section 138(a)".

1984—Subsec. (b). Pub. L. 98–525, §1405(3)(B), substituted "30" for "thirty" and "90" for "ninety" in introductory text.

Subsec. (b)(2). Pub. L. 98–525, §1405(3)(A), substituted "30" for "thirty".

1982—Subsec. (a). Pub. L. 97–258 substituted "section 1105 of title 31" for "section 201 of the Budget and Accounting Act, 1921 (31 U.S.C. 11)".

1981—Subsec. (c)(4). Pub. L. 97–86 added par. (4).

1980—Subsec. (a). Pub. L. 96–513 substituted "section 201 of the Budget and Accounting Act, 1921 (31 U.S.C. 11)" for "section 11 of title 31".

1975—Subsec. (b). Pub. L. 94–106 substituted "or more than ninety, days before" for "or more than sixty, days before".

Statutory Notes and Related Subsidiaries

Effective Date of 2021 Amendment

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 a note preceding section 3001 of this title.

Effective Date of 1996 Amendment

For effective date and applicability of amendment by Pub. L. 104–106, see section 4401 of Pub. L. 104–106, set out as a note under section 2220 of this title.

Effective Date of 1987 Amendment

Amendment by Pub. L. 100–180 applicable as if included in enactment of the Goldwater-Nichols Department of Defense Reorganization Act of 1986, Pub. L. 99–433, see section 1314(e) of Pub. L. 100–180, set out as a note under section 743 of this title.

Effective Date of 1980 Amendment

Amendment by Pub. L. 96–513 effective Dec. 12, 1980, see section 701(b)(3) of Pub. L. 96–513, set out as a note under section 101 of this title.

Transition of Ballistic Missile Defense Programs to Military Departments

Pub. L. 115–91, div. A, title XVI, §1676(b), Dec. 12, 2017, 131 Stat. 1772, as amended by Pub. L. 115–232, div. A, title XVI, §1679, Aug. 13, 2018, 132 Stat. 2161; Pub. L. 116–283, div. A, title XVI, §1643, Jan. 1, 2021, 134 Stat. 4062; Pub. L. 117–81, div. A, title XVI, §1663, Dec. 27, 2021, 135 Stat. 2104; Pub. L. 117–263, div. A, title XVI, §1655, Dec. 23, 2022, 136 Stat. 2950, directed the Secretary of Defense to transfer, not later than Oct. 1, 2023—except that such requirement to transfer would terminate 60 days after the Secretary submits the report under section 1675(b) of Pub. L. 117–81 (135 Stat. 2113)—the acquisition authority and the total obligational authority for each missile defense program that has received Milestone C approval or equivalent approval as of such date from the Missile Defense Agency to a military department, and directed the Secretary to submit to the congressional defense committees, not later than one year after Dec. 12, 2017, a report on the plans for such transition of missile defense programs.

Development of Persistent Space-Based Sensor Architecture

Pub. L. 115–91, div. A, title XVI, §1683, Dec. 12, 2017, 131 Stat. 1777, as amended by Pub. L. 115–232, div. A, title XVI, §1675(a)–(c), (d)(2), Aug. 13, 2018, 132 Stat. 2159, 2160; Pub. L. 116–92, div. A, title XVI, §1683, Dec. 20, 2019, 133 Stat. 1782; Pub. L. 116–283, div. A, title XVI, §1645(h), formerly §1645(g), Jan. 1, 2021, 134 Stat. 4064, renumbered §1645(h), Pub. L. 117–81, div. A, title XVI, §1662(b)(1), Dec. 27, 2021, 135 Stat. 2103, directed the Director of the Missile Defense Agency, in coordination with the Commander of the Air Force Space Command and the Commander of the United States Strategic Command, beginning fiscal year 2019, to develop and rigorously test a highly reliable and cost-effective persistent space-based sensor architecture capable of supporting the ballistic missile defense system, to ensure that the sensor architecture developed is compatible with efforts of the Defense Advanced Research Projects Agency relating to space-based sensors for missile defense, to submit to Congress a report on the available options not later than January 31, 2019, to submit to Congress a plan not later than one year after December 12, 2017, and to submit to Congress an update to the plan not later than 90 days after December 20, 2019.

Boost Phase Ballistic Missile Defense

Pub. L. 115–91, div. A, title XVI, §1685, Dec. 12, 2017, 131 Stat. 1781, as amended by Pub. L. 115–232, div. A, title XVI, §1676, Aug. 13, 2018, 132 Stat. 2160, directed the Secretary of Defense to ensure that an effective interim kinetic or directed energy boost phase ballistic missile defense capability would be available for initial operational deployment as soon as practicable, directed the Secretary to submit to the congressional defense committees, together with the budget submitted to Congress for fiscal year 2019, a plan to achieve such capability, directed the Director of the Missile Defense Agency, beginning fiscal year 2019, to carry out a program to develop kinetic boost phase intercept capabilities, required an independent study on the feasibility of providing an initial or demonstrated boost phase capability using unmanned aerial vehicles and kinetic interceptors, and directed the Secretary of Defense to submit to the congressional defense committees a report on such study not later than July 31, 2019.

Ground-Based Interceptor Capability, Capacity, and Reliability

Pub. L. 115–91, div. A, title XVI, §1686, Dec. 12, 2017, 131 Stat. 1781, authorized the Secretary of Defense to increase the number of the ground-based interceptors of the United States and to advance missile defense technologies to improve the capability and reliability of those elements of the ballistic missile defense system, and directed the Director of the Missile Defense Agency to submit to the congressional defense committees, not later than 90 days after the date on which the Ballistic Missile Defense Review commenced in 2017 is published, a report on those efforts.

Plan for Development of Space-Based Ballistic Missile Intercept Layer

Pub. L. 115–91, div. A, title XVI, §1688, Dec. 12, 2017, 131 Stat. 1783, as amended by Pub. L. 115–232, div. A, title XVI, §1680, Aug. 13, 2018, 132 Stat. 2161; Pub. L. 116–92, div. A, title XVI, §1682, Dec. 20, 2019, 133 Stat. 1782, provided that:

"(a) Development.—Subject to the availability of appropriations, the Director of the Missile Defense Agency shall develop a space-based ballistic missile intercept layer to the ballistic missile defense system that is—

"(1) regionally focused;

"(2) capable of providing boost-phase defense; and

"(3) achieves an operational capability at the earliest practicable date.

"(b) Space-based Ballistic Missile Intercept Layer Plan.—Not later than one year after the date of the enactment of this Act [Dec. 12, 2017], the Director shall submit to the appropriate congressional committees a plan to carry out subsection (a) during the 10-year period following the date of the plan. Such plan shall include the following:

"(1) A concept definition phase consisting of multiple awarded contracts to identify feasible solutions consistent with architectural principles, performance goals, and price points established by the Director, such as contracts relating to—

"(A) refined requirements;

"(B) conceptual designs;

"(C) technology readiness assessments;

"(D) critical technical and operational issues;

"(E) cost, schedule, performance estimates; and

"(F) risk reduction plans.

"(2) A technology risk reduction phase consisting of up to three competitively awarded contracts focused on maturing, integrating, and characterizing key technologies, algorithms, components, and subsystems, such as contracts relating to—

"(A) refined concepts and designs;

"(B) engineering trade studies;

"(C) medium-to-high fidelity digital representations of the space-based ballistic missile intercept weapon system; and

"(D) a proposed integration and test sequence that could potentially lead to a live-fire boost phase intercept during fiscal year 2022, if the technology has reached sufficient maturity and is economically viable.

"(3) During the technology risk reduction phase, contractors will define proposed demonstrations to a preliminary design review level prior to a technology development phase down-select.

"(4) A technology development phase consisting of two competitively awarded contracts to mature the preferred space-based ballistic missile intercept weapon system concepts and to potentially conduct a live-fire boost phase intercept fly-off during fiscal year 2022, if the technology has reached sufficient maturity and is economically viable, with brassboard hardware and prototype software on a path to the operational goal.

"(5) A concurrent space-based ballistic missile intercept weapon system fire control test bed activity that incrementally incorporates modeling and simulation elements, real-world data, hardware, algorithms, and systems to evaluate with increasing confidence the performance of evolving designs and concepts of such weapon system from target detection to intercept.

"(6) Any other matters the Director determines appropriate.

"(c) Appropriate Congressional Committees Defined.—In this section, the term 'appropriate congressional committees' means—

"(1) the congressional defense committees [Committees on Armed Services and Appropriations of the Senate and the House of Representatives]; and

"(2) the Select Committee on Intelligence of the Senate and the Permanent Select Committee on Intelligence of the House of Representatives."

Designation of Department of Defense Senior Official With Principal Responsibility for Directed Energy Weapons

Pub. L. 114–328, div. A, title II, §219, Dec. 23, 2016, 130 Stat. 2053, as amended by Pub. L. 115–91, div. A, title II, §215, Dec. 12, 2017, 131 Stat. 1326; Pub. L. 115–232, div. A, title II, §§212, 237, Aug. 13, 2018, 132 Stat. 1675, 1695; Pub. L. 116–283, div. A, title II, §215, Jan. 1, 2021, 134 Stat. 3458; Pub. L. 118–159, div. A, title II, §227, Dec. 23, 2024, 138 Stat. 1832, provided that:

"(a) Designation of Senior Official.—

"(1) In general.—The Under Secretary of Defense for Research and Engineering shall serve as the official with principal responsibility for the development and demonstration of directed energy weapons for the Department.

"(2) Development of strategic plan.—

"(A) In general.—The senior official designated under paragraph (1) shall develop a detailed strategic plan to develop, mature, and transition directed energy technologies to acquisition programs of record.

"(B) Roadmap.—Such strategic plan shall include a strategic roadmap for the development and fielding of directed energy weapons and key enabling capabilities for the Department, identifying and coordinating efforts across military departments to achieve overall joint mission effectiveness.

"(3) Acceleration of development and fielding of directed energy weapons capabilities.—

"(A) In general.—To the degree practicable, the senior official designated under paragraph (1) shall use the flexibility of the policies of the Department in effect on the day before the date of the enactment of this Act [Dec. 23, 2016], or any successor policies, to accelerate the development and fielding of directed energy capabilities.

"(B) Engagement.—The Secretary shall use the flexibility of the policies of the Department in effect on the day before the date of the enactment of this Act [Dec. 23, 2016], or any successor policies, to ensure engagement with defense and private industries, research universities, and unaffiliated, nonprofit research institutions.

"(4) Advice for exercises and demonstrations.—The senior official designated under paragraph (1) shall, to the degree practicable, provide technical advice and support to entities in the Department of Defense and the military departments conducting exercises or demonstrations with the purpose of improving the capabilities of or operational viability of technical capabilities supporting directed energy weapons, including supporting military utility assessments of the relevant cost and benefits of directed energy weapon systems.

"(5) Support for development of requirements.—The senior official designated under paragraph (1) shall coordinate with the military departments, Defense Agencies, and the Joint Directed Energy Transition Office to define requirements for directed energy capabilities that address the highest priority warfighting capability gaps of the Department.

"(6) Availability of information.—The Secretary of Defense shall ensure that the senior official designated under paragraph (1) has access to such information on programs and activities of the military departments and other defense agencies as the Secretary considers appropriate to coordinate departmental directed energy efforts.

"(b) Joint Directed Energy Transition Office.—

"(1) Redesignation.—The High Energy Laser Joint Technology Office of the Department of Defense is hereby redesignated as the 'Joint Directed Energy Transition Office' (in this subsection referred to as the 'Office'), and shall report to the official designated under subsection (a)(1).

"(2) Additional functions.—In addition to the functions and duties of the Office in effect on the day before the date of the enactment of this Act [Dec. 23, 2016], the Office shall assist the senior official designated under paragraph (1) of subsection (a) in carrying out paragraphs (2) through (5) of such subsection.

"(3) Funding.—The Secretary may make available such funds to the Office for basic research, applied research, advanced technology development, prototyping, studies and analyses, and organizational support as the Secretary considers appropriate to support the efficient and effective development of directed energy systems and technologies, including high-powered microwaves, and transition of those systems and technologies into acquisition programs or operational use.

"(c) Prototyping and Demonstration Program.—

"(1) Establishment.—The Secretary of Defense, acting through the Under Secretary, shall establish a program on the prototyping and demonstration of directed energy weapon systems to build and maintain the military superiority of the United States by—

"(A) accelerating, when feasible, the fielding of directed energy weapon prototypes that would help counter technological advantages of potential adversaries of the United States; and

"(B) supporting the military departments, the combatant commanders, and other relevant defense agencies and entities in developing prototypes and demonstrating operational utility of high energy lasers and high powered microwave weapon systems.

"(2) Guidelines.—(A) Not later than 180 days after the date of the enactment of the National Defense Authorization Act for Fiscal Year 2018 [Dec. 12, 2017], the Under Secretary shall issue guidelines for the operation of the program established under paragraph (1), including the following:

"(i) Criteria required for an application for funding by a military department, defense agency or entity, or a combatant command.

"(ii) The priorities, based on validated requirements or capability gaps, for fielding prototype directed energy weapon system technologies developed by research funding of the Department or industry.

"(iii) Criteria for evaluation of an application for funding or changes to policies or acquisition and business practices by such a department, agency, or command for purposes of improving the effectiveness and efficiency of the program.

"(B) Funding for a military department, defense agency, or combatant command under the program established under paragraph (1) may only be available for advanced technology development, prototyping, and demonstrations in which the Department of Defense maintains management of the technical baseline and a primary emphasis on technology transition and evaluating military utility to enhance the likelihood that the particular directed energy weapon system will meet the Department end user's need.

"(3) Applications for funding.—(A) Not less frequently than once each year, the Under Secretary shall solicit from the heads of the military departments, the defense agencies, and the combatant commands applications for funding under the program established under paragraph (1) to be used to enter into contracts, cooperative agreements, or other transaction agreements entered into pursuant to section 2371b of title 10, United States Code [now 10 U.S.C. 4022], with appropriate entities for the prototyping or commercialization of technologies.

"(B) Nothing in this section shall be construed to require any official of the Department of Defense to provide funding under the program to any congressional earmark as defined pursuant to clause 9 of rule XXI of the Rules of the House of Representatives or any congressionally directed spending item as defined pursuant to paragraph 5 of rule XLIV of the Standing Rules of the Senate.

"(4) Under secretary defined.—In this subsection, the term 'Under Secretary' means the Under Secretary of Defense for Research and Engineering in the Under Secretary's capacity as the official with principal responsibility for the development and demonstration of directed energy weapons pursuant to subsection (a)(1).

"(d) Directed Energy Working Group.—

"(1) In general.—Not later than 60 days after the date of the enactment of the [William M. (Mac) Thornberry] National Defense Authorization Act for fiscal year [sic] 2021 [Jan. 1, 2021], the Secretary of Defense shall establish a working group to be known as the 'Directed Energy Working Group'.

"(2) Responsibilities.—The Directed Energy Working Group shall—

"(A) analyze and evaluate the current and planned directed energy programs of each of the military departments;

"(B) make recommendations to the Secretary of Defense—

"(i) describing how memoranda of understanding may be used to coordinate the directed energy activities conducted by the Department of Defense using amounts authorized to be appropriated for research, development, test, and evaluation; and

"(ii) proposing the establishment of specific memoranda of understanding between individual organizations and elements of the Department of Defense to facilitate such coordination;

"(C) identify methods of quickly fielding directed energy capabilities and programs; and

"(D) develop a compendium on the effectiveness of directed energy weapon systems and integrate the compendium into an overall Joint Effectiveness Manual under the guidance from the Joint Technical Coordination Group for Munitions Effectiveness.

"(3) Head of working group.—The head of the Directed Energy Working Group shall be the Under Secretary of Defense for Research and Engineering or the designee of the Under Secretary.

"(4) Membership.—The members of the Directed Energy Working Group shall be appointed as follows:

"(A) One member from each military department, appointed by the Secretary of the military department concerned.

"(B) One member appointed by the Under Secretary of Defense for Research and Engineering.

"(C) One member appointed by the Under Secretary of Defense for Acquisition and Sustainment.

"(D) One member appointed by the Director of the Strategic Capabilities Office of the Department of Defense.

"(E) One member appointed by the Director of the Defense Advanced Research Projects Agency.

"(F) One member appointed by the Director of Operational Test and Evaluation.

"(G) One member appointed by the Director of the Missile Defense Agency.

"(H) Such other members as may be appointed by the Secretary of Defense from among individuals serving in the Department of Defense.

"(5) Deadline for appointment.—Members of the Directed Energy Working Group shall be appointed not later than 30 days after the date of the establishment of the working group under paragraph (1).

"(6) Briefings to congress.—Not later than 180 days after the date of the enactment of the William M. (Mac) Thornberry National Defense Authorization Act for Fiscal Year 2021 [Jan. 1, 2021], and not less frequently than once every 180 days thereafter, the Directed Energy Working Group shall provide to the congressional defense committees [Committees on Armed Services and Appropriations of the Senate and the House of Representatives] a briefing on the progress of each directed energy program that is being adopted or fielded by the Department of Defense. Each such briefing shall include—

"(A) for each organization and element of the Department carrying out work related to directed energy capabilities, cost data and associated program elements for each fiscal year across the period covered by the most recent future-years defense program submitted to Congress under section 221 of title 10, United States Code (as of the time of the briefing); and

"(B) information on any enabling work that supports such capabilities, including—

"(i) vehicle or software integration and testing;

"(ii) command, control and targeting architectures;

"(iii) supporting infrastructure requirements; and

"(iv) workforce training.

"(7) Termination.—The Directed Energy Working Group established under this subsection shall terminate 9 years after the date of the enactment of the William M. (Mac) Thornberry National Defense Authorization Act for Fiscal Year 2021 [Jan. 1, 2021]."

National Missile Defense Policy

Pub. L. 116–92, div. A, title XVI, §1681(b), Dec. 20, 2019, 133 Stat. 1781, provided that: "Not later than the date on which the President submits to Congress the annual budget request of the President for fiscal year 2021 pursuant to section 1105 of title 31, United States Code, the Secretary of Defense shall, as the Secretary considers appropriate, redesignate all strategies, policies, programs, and systems under the jurisdiction of the Secretary to reflect that missile defense programs of the United States defend against ballistic, cruise, and hypersonic missiles in all phases of flight."

Pub. L. 114–328, div. A, title XVI, §1681(a), Dec. 23, 2016, 130 Stat. 2623, as amended by Pub. L. 116–92, div. A, title XVI, §1681(a), Dec. 20, 2019, 133 Stat. 1781; Pub. L. 118–31, div. A, title XVI, §1663, Dec. 22, 2023, 137 Stat. 603, which related to the national missile defense policy of the United States, was repealed by Pub. L. 118–159, div. A, title XVI, §1649(b)(3), Dec. 23, 2024, 138 Stat. 2199. See section 5501 of this title.

Designation of Certain Acquisition Authority

Pub. L. 114–328, div. A, title XVI, §1684(e), (f), Dec. 23, 2016, 130 Stat. 2627, provided that:

"(e) Designation Required.—

"(1) Authority.—Not later than March 31, 2018, the Secretary of Defense shall designate a military department or Defense Agency with acquisition authority with respect to—

"(A) the capability to defend the homeland from cruise missiles; and

"(B) left-of-launch ballistic missile defeat capability.

"(2) Discretion.—The Secretary may designate a single military department or Defense Agency with the acquisition authority described in paragraph (1) or designate a separate military department or Defense Agency for each function specified in such paragraph.

"(3) Validation.—In making a designation under paragraph (1), the Secretary shall include a description of the manner in which the military requirements for such capabilities will be validated.

"(f) Definitions.—In this section:

"(1) The term 'Defense Agency' has the meaning given that term in section 101(a)(11) of title 10, United States Code.

"(2) The term 'intelligence community' has the meaning given that term in section 3 of the National Security Act of 1947 (50 U.S.C. 3003)."

Technical Authority for Integrated Air and Missile Defense Activities and Programs

Pub. L. 114–328, div. A, title XVI, §1686(a), Dec. 23, 2016, 130 Stat. 2628, which provided that the Director of the Missile Defense Agency was the technical authority of the Department of Defense for integrated air and missile defense activities and programs and the Director could seek to have staff detailed to the Missile Defense Agency from the Joint Functional Component Command for Integrated Missile Defense and the Joint Integrated Air and Missile Defense Organization, was repealed by Pub. L. 118–159, div. A, title XVI, §1649(b)(4), Dec. 23, 2024, 138 Stat. 2199. See section 5531 of this title.

Hypersonic Defense Capability Development

Pub. L. 114–328, div. A, title XVI, §1687, Dec. 23, 2016, 130 Stat. 2629, which designated the Director of the Missile Defense Agency as the executive agent for the Department of Defense for the development of a capability by the United States to counter hypersonic boost-glide vehicle capabilities and conventional prompt strike capabilities that may be employed against the United States or its allies and directed the Director to establish a program to develop such hypersonic defense capability by not later than Mar. 31, 2017, was repealed by Pub. L. 118–159, div. A, title XVI, §1649(b)(5), Dec. 23, 2024, 138 Stat. 2199. See section 5532 of this title.

Required Testing by Missile Defense Agency of Ground-Based Midcourse Defense Element of Ballistic Missile Defense System

Pub. L. 114–328, div. A, title XVI, §1689, Dec. 23, 2016, 130 Stat. 2631, as amended by Pub. L. 116–92, div. A, title IX, §902(97), title XVI, §1684, Dec. 20, 2019, 133 Stat. 1555, 1783; Pub. L. 117–81, div. A, title XVI, §1668(d), Dec. 27, 2021, 135 Stat. 2107, which authorized the Director of the Missile Defense Agency to administer a required flight test of the ground-based midcourse defense element of the ballistic missile defense system and provided exceptions for such required testing, was repealed by Pub. L. 118–159, div. A, title XVI, §1649(b)(6), Dec. 23, 2024, 138 Stat. 2199. See section 5533 of this title.

Pilot Program on Loss of Unclassified, Controlled Technical Information

Pub. L. 114–328, div. A, title XVI, §1692, Dec. 23, 2016, 130 Stat. 2636, which authorized the Director of the Missile Defense Agency to carry out a pilot program to implement improvements to the data protection options in the programs of the Missile Defense Agency with unclassified, controlled technical information and controlled unclassified information, was repealed by Pub. L. 118–159, div. A, title VIII, §811(a)(1)(E), Dec. 23, 2024, 138 Stat. 1979.

Plan on Full Integration and Exploitation of Overhead Persistent Infrared Capability

Pub. L. 114–92, div. A, title XVI, §1618, Nov. 25, 2015, 129 Stat. 1108, as amended by Pub. L. 116–92, div. A, title XVI, §1604, Dec. 20, 2019, 133 Stat. 1723, provided that:

"(a) Plan.—Not later than 180 days after the date of the enactment of this Act [Nov. 25, 2015], the Commander of the United States Strategic Command and the Director of Cost Assessment and Program Evaluation, in coordination with the Director of National Intelligence, shall jointly submit to the appropriate congressional committees a plan for the integration of overhead persistent infrared capabilities to support the missions specified in subsection (b)(1).

"(b) Elements.—The plan under subsection (a) shall—

"(1) ensure that all overhead persistent infrared capabilities of the United States, including such capabilities that are planned to be developed, are integrated to allow for such capabilities to be exploited to support the requirements of the missions of the Department of Defense relating to—

"(A) strategic and theater missile warning;

"(B) ballistic and cruise missile defense, including with respect to missile tracking, fire control, and kill assessment;

"(C) technical intelligence supporting missile warning;

"(D) battlespace awareness;

"(E) other technical intelligence;

"(F) civil and environmental missions, including with respect to the collection of weather data; and

"(G) battle damage assessments; and

"(2) establish clear benchmarks by which to establish acquisition plans, manning, and budget requirements.

"(c) Annual Determination.—The Secretary of Defense shall include, together with, or not later than 30 days after, the budget justification materials submitted to Congress in support of the budget of the Department of Defense for each of fiscal years 2021 through 2028 (as submitted with the budget of the President under section 1105(a) of title 31, United States Code), a written determination of how the plan under subsection (a) is being implemented.

"(d) Appropriate Congressional Committees Defined.—In this section, the term 'appropriate congressional committees' means—

"(1) the congressional defense committees [Committees on Armed Services and Appropriations of the Senate and the House of Representatives]; and

"(2) the Permanent Select Committee on Intelligence of the House of Representatives and the Select Committee on Intelligence of the Senate."

Integration and Interoperability of Air and Missile Defense Capabilities of the United States

Pub. L. 114–92, div. A, title XVI, §1675, Nov. 25, 2015, 129 Stat. 1131, as amended by Pub. L. 116–92, div. A, title IX, §902(69), Dec. 20, 2019, 133 Stat. 1551; Pub. L. 116–283, div. A, title X, §1081(f)(3), Jan. 1, 2021, 134 Stat. 3875, which authorized the Vice Chairman of the Joint Chiefs of Staff and the chairman of the Missile Defense Executive Board, acting through the Missile Defense Executive Board, to ensure the interoperability and integration of the covered air and missile defense capabilities of the United States, including by carrying out operational testing, was repealed by Pub. L. 118–159, div. A, title XVI, §1649(b)(7), Dec. 23, 2024, 138 Stat. 2199. See section 5534 of this title.

Boost Phase Defense System

Pub. L. 114–92, div. A, title XVI, §1680, Nov. 25, 2015, 129 Stat. 1137, as amended by Pub. L. 118–159, div. A, title XVI, §1649(c)(2), Dec. 23, 2024, 138 Stat. 2200, directed the Secretary of Defense to develop and field an airborne boost phase defense system by not later than fiscal year 2025, and to submit a report on its efforts to the congressional defense committees not later than 120 days after Nov. 25, 2015.

Development and Deployment of Multiple-Object Kill Vehicle for Missile Defense of the United States Homeland

Pub. L. 114–92, div. A, title XVI, §1681, Nov. 25, 2015, 129 Stat. 1138, which directed the Director of the Missile Defense Agency to develop a highly reliable multiple-object kill vehicle for the ground-based midcourse defense system using sound acquisition practices, and to include in the budget justification materials submitted to Congress for fiscal year 2017 a report on the funding profile necessary for the program, was repealed by Pub. L. 118–159, div. A, title XVI, §1649(c)(3), Dec. 23, 2024, 138 Stat. 2200.

Requirement To Replace Capability Enhancement I Exoatmospheric Kill Vehicles

Pub. L. 114–92, div. A, title XVI, §1682, Nov. 25, 2015, 129 Stat. 1139, directed the Director of the Missile Defense Agency to ensure, to the maximum extent practicable, that all remaining ground-based interceptors of the ground-based midcourse defense system that are armed with the capability enhancement I exoatmospheric kill vehicle were replaced with the redesigned exoatmospheric kill vehicle before Sept. 30, 2022.

Additional Missile Defense Sensor Coverage for Protection of United States Homeland

Pub. L. 114–92, div. A, title XVI, §1684, Nov. 25, 2015, 129 Stat. 1140, directed the Director of the Missile Defense Agency to deploy, not later than Dec. 31, 2020, a long-range discrimination radar or other sensor capability to defend the United States from long-range ballistic missile threats from Iran, and to include in the budget justification materials submitted to Congress for fiscal years 2017 to 2020 the plan to carry out such deployment.

Concept Development of Space-Based Missile Defense Layer

Pub. L. 114–92, div. A, title XVI, §1685, Nov. 25, 2015, 129 Stat. 1142, as amended by Pub. L. 114–328, div. A, title XVI, §1683, Dec. 23, 2016, 130 Stat. 2624, directed the Director of the Missile Defense Agency, in coordination with the Secretary of the Air Force and the Director of the Defense Advanced Research Projects Agency, to commence, not later than 30 days after Nov. 25, 2015, the concept definition of a space-based ballistic missile intercept layer to the ballistic missile defense system, and directed the Director of the Missile Defense Agency to submit to the congressional defense committees, not later than 1 year after Nov. 25, 2015, a plan for developing one or more programs for a space-based ballistic missile intercept layer, and to commence research and development of such programs not later than 60 days after the submittal of the plan.

Development of Requirements To Support Integrated Air and Missile Defense Capabilities

Pub. L. 114–92, div. A, title XVI, §1687, Nov. 25, 2015, 129 Stat. 1143, which authorized the Vice Chairman of the Joint Chiefs of Staff to oversee the development of warfighter requirements to support integrated air and missile defense capabilities, was repealed by Pub. L. 118–159, div. A, title XVI, §1649(b)(8), Dec. 23, 2024, 138 Stat. 2199. See section 5535 of this title.

Testing and Assessment of Missile Defense Systems Prior to Production and Deployment

Pub. L. 113–291, div. A, title XVI, §1662, Dec. 19, 2014, 128 Stat. 3657, as amended by Pub. L. 115–91, div. A, title XVI, §1677(b), Dec. 12, 2017, 131 Stat. 1774, which prohibited the Secretary of Defense from making a final production decision for, or from operationally deploying, certain components of the ballistic missile defense system without sufficient and operationally realistic testing, was repealed by Pub. L. 118–159, div. A, title XVI, §1649(b)(9), Dec. 23, 2024, 138 Stat. 2199. See section 5536 of this title.

[For termination, effective Dec. 31, 2021, of reporting provisions in subsecs. (c)(2) and (d)(2) of section 1662 of Pub. L. 113–291, formerly set out above, see section 1061 of Pub. L. 114–328, set out as a note under section 111 of this title.]

Acquisition Plan for Re-Designed Exo-Atmospheric Kill Vehicle

Pub. L. 113–291, div. A, title XVI, §1663, Dec. 19, 2014, 128 Stat. 3658, directed the Secretary of Defense to develop an acquisition plan for the re-design of the exo-atmospheric kill vehicle of the ground-based midcourse defense system, and required the Director of the Missile Defense Agency to submit a report to the congressional defense committees on such plan.

Additional Missile Defense Radar for the Protection of the United States Homeland

Pub. L. 113–66, div. A, title II, §235, Dec. 26, 2013, 127 Stat. 714, directed the Director of the Missile Defense Agency to deploy a long-range discriminating radar against long-range ballistic missile threats from the Democratic People's Republic of Korea, directed the Secretary of Defense to ensure that the Secretary was able to deploy additional tracking and discrimination sensor capabilities to defend the United States from future long-range ballistic missile threats from Iran, and required submission to the congressional defense committees of a report on the sensor capabilities of the United States not later than 180 days after Dec. 26, 2013.

Plans To Improve the Ground-Based Midcourse Defense System

Pub. L. 113–66, div. A, title II, §237, Dec. 26, 2013, 127 Stat. 717, directed the Director of the Missile Defense Agency to develop options to achieve an improved kill assessment capability for the ground-based midcourse defense system by not later than Dec. 31, 2019, to develop an interim capability for improved hit assessment for the ground-based midcourse defense system that could be integrated into near-term exo-atmospheric kill vehicle upgrades and refurbishment, and to submit a report on such development not later than Apr. 1, 2014, and directed the Director of the Missile Defense Agency to submit a plan to develop and deploy an upgraded enhanced exo-atmospheric kill vehicle not later than 120 days after Dec. 26, 2013.

Limitation on Availability of Funds for Missile Defense Interceptors in Europe

Pub. L. 111–383, div. A, title II, §223(a)–(d), Jan. 7, 2011, 124 Stat. 4168, 4169, which prohibited the expenditure of Department of Defense funds for the construction or deployment of missile defense interceptors in Europe until the host nation ratified a missile defense basing agreement and a status of forces agreement authorizing such interceptors and the Secretary of Defense submitted to the congressional defense committees the report on the independent assessment of alternative missile defense systems in Europe required by section 235(c)(2) of the National Defense Authorization Act for Fiscal Year 2010 (Pub. L. 111–84, 123 Stat. 2235), was repealed by Pub. L. 118–159, div. A, title XVI, §1649(c)(4), Dec. 23, 2024, 138 Stat. 2200.

Limitation on Availability of Funds for Procurement, Construction, and Deployment of Missile Defenses in Europe

Pub. L. 110–417, [div. A], title II, §233, Oct. 14, 2008, 122 Stat. 4393, as amended by Pub. L. 111–383, div. A, title X, §1075(e)(3), Jan. 7, 2011, 124 Stat. 4374, prohibited the expenditure of Department of Defense funds for a long-range missile defense system in Europe unless the host nation ratified a missile defense basing agreement, and required a further certification to Congress by the Secretary of Defense.

Policy of the United States on Protection of the United States and its Allies Against Iranian Ballistic Missiles

Pub. L. 110–181, div. A, title II, §229, Jan. 28, 2008, 122 Stat. 45, set forth as the policy of the United States to develop, along with its allies, a defense against Iranian ballistic missiles and to encourge the NATO alliance to accelerate its efforts to protect NATO territory against the threat of Iranian ballistic missiles.

Policy of the United States on Priorities in the Development, Testing, and Fielding of Missile Defense Capabilities

Pub. L. 109–364, div. A, title II, §223, Oct. 17, 2006, 120 Stat. 2130, which set forth as the policy of the United States that the Department of Defense prioritize the development, testing, fielding, and improvement of effective near-term missile defense capabilities, was repealed by Pub. L. 118–159, div. A, title XVI, §1649(c)(5), Dec. 23, 2024, 138 Stat. 2200.

Plans for Test and Evaluation of Operational Capability of the Ballistic Missile Defense System

Pub. L. 109–163, div. A, title II, §234, Jan. 6, 2006, 119 Stat. 3174, as amended by Pub. L. 109–364, div. A, title II, §225, Oct. 17, 2006, 120 Stat. 2130, directed the operational and test components of the Department of Defense to prepare a plan to test the operational capability of each block of the Ballistic Missile Defense System, and directed the Director of Operational Test and Evaluation to submit a report to the congressional defense committees.

Integration of Patriot Advanced Capability-3 and Medium Extended Air Defense System Into Ballistic Missile Defense System

Pub. L. 108–375, div. A, title II, §232, Oct. 28, 2004, 118 Stat. 1835, designated the Patriot Advanced Capability-3/Medium Extended Air Defense System air and missile defense program as an element of the Ballistic Missile Defense System, prohibited the Secretary of the Army from making any significant change to the baseline technical specifications or the baseline schedule for the PAC–3/MEADS program without the concurrence of the Director of the Missile Defense Agency, and directed the Secretary of Defense to establish procedures for determining the effect of a proposed change to the procurement quantity for the PAC–3/MEADS program and to submit to Congress a report describing such procedures not later than Feb. 1, 2005.

Baselines and Operational Test and Evaluation for Ballistic Missile Defense System

Pub. L. 108–375, div. A, title II, §234, Oct. 28, 2004, 118 Stat. 1837, directed the Secretary of Defense, in consultation with the Director of Operational Test and Evaluation, to prescribe, not later than Feb. 1, 2005, criteria for operationally realistic testing of fieldable prototypes developed under the ballistic missile defense spiral development program, and to ensure that, not later than Oct. 1, 2005, any test of the ballistic missile defense system was conducted consistent with such criteria.

Provision of Information on Flight Testing of Ground-Based Midcourse National Missile Defense System

Pub. L. 107–314, div. A, title II, §224, Dec. 2, 2002, 116 Stat. 2485, which directed the Director of the Missile Defense Agency to provide to the congressional defense committees information on the results of each flight test of the Ground-based Midcourse national missile defense system, was repealed by Pub. L. 118–159, div. A, title XVI, §1649(b)(10), Dec. 23, 2024, 138 Stat. 2200. See section 5553 of this title.

Missile Defense Agency Test Program

Pub. L. 107–107, div. A, title II, §232(c)–(h), Dec. 28, 2001, 115 Stat. 1037–1039, as amended by Pub. L. 107–314, div. A, title II, §225(b)(2)(A), Dec. 2, 2002, 116 Stat. 2486; Pub. L. 108–136, div. A, title II, §221(b)(2), (c)(2), Nov. 24, 2003, 117 Stat. 1419; Pub. L. 108–375, div. A, title II, §233, Oct. 28, 2004, 118 Stat. 1836; Pub. L. 109–163, div. A, title II, §232, Jan. 6, 2006, 119 Stat. 3174; Pub. L. 109–364, div. A, title II, §224, Oct. 17, 2006, 120 Stat. 2130; Pub. L. 110–181, div. A, title II, §225, Jan. 28, 2008, 122 Stat. 41; Pub. L. 110–417, [div. A], title II, §231(a), (b), Oct. 14, 2008, 122 Stat. 4390, 4391; Pub. L. 111–383, div. A, title X, §1075(e)(2), Jan. 7, 2011, 124 Stat. 4374; Pub. L. 112–81, div. A, title II, §232(c), title X, §1062(h), Dec. 31, 2011, 125 Stat. 1340, 1585, directed the Director of the Missile Defense Agency to ensure that critical technology for a missile defense program was successfully demonstrated before it entered into operational service, and directed the Director of Operational Test and Evaluation to conduct annual assessments of, and to report on, the program and the ballistic missile defense system.

[For termination, effective Dec. 31, 2021, of annual reporting provisions in section 232(h) of Pub. L. 107–107, formerly set out above, see section 1061 of Pub. L. 114–328, set out as a note under section 111 of this title.]

Missile Defense Testing Initiative

Pub. L. 107–107, div. A, title II, §234, Dec. 28, 2001, 115 Stat. 1039, set out requirements for the testing infrastructure of the ballistic missile defense program, including specific requirements for ground-based mid-course interceptor systems for fiscal year 2002.

National Missile Defense Program

Pub. L. 105–85, div. A, title II, §231, Nov. 18, 1997, 111 Stat. 1661, provided that the Secretary of Defense was to ensure that the National Missile Defense Program was structured and programmed for funding so as to support a test, in fiscal year 1999, of an integrated national missile defense system that was representative of the national missile defense system architecture that could achieve initial operational capability in fiscal year 2003, and that not later than Feb. 15, 1998, the Secretary was to submit to the congressional defense committees a plan for the development and deployment of a national missile defense system that could achieve initial operational capability in fiscal year 2003.

Enhanced Cooperation Between National Nuclear Security Administration and Missile Defense Agency

Pub. L. 106–398, §1 [div. C, title XXXI, §3132], Oct. 30, 2000, 114 Stat. 1654, 1654A-455, as amended by Pub. L. 107–314, div. A, title II, §225(b)(3), Dec. 2, 2002, 116 Stat. 2486, directed the Secretary of Energy and the Secretary of Defense to modify the memorandum of understanding entered into under section 3131 of the National Defense Authorization Act for Fiscal Year 1998 (Pub. L. 105–85, formerly set out as a note below) to provide for jointly funded projects.

Pub. L. 105–85, div. C, title XXXI, §3131, Nov. 18, 1997, 111 Stat. 2034, directed the Secretary of Energy and the Secretary of Defense to enter into a memorandum of understanding to improve and facilitate the use of the expertise of the national laboratories for the ballistic missile defense programs of the Department of Defense.

Ballistic Missile Defense Program

Pub. L. 104–106, div. A, title II, subtitle C, Feb. 10, 1996, 110 Stat. 228–233, as amended by Pub. L. 105–85, div. A, title II, §236, Nov. 18, 1997, 111 Stat. 1665; Pub. L. 106–65, div. A, title X, §1067(6), Oct. 5, 1999, 113 Stat. 774; Pub. L. 107–314, div. A, title X, §1041(c), Dec. 2, 2002, 116 Stat. 2646, known as the Ballistic Missile Defense Act of 1995, restructured the core theater missile defense program, directed the Secretary of Defense to prepare a plan to develop theater missile defense systems, prohibited the use of Department of Defense funds to implement an agreement between the United States and any independent state of the former Soviet Union that would establish a demarcation between theater missile defense systems and anti-ballistic missile systems or restrict United States theater missile defense systems, and repealed the Missile Defense Act of 1991 (Pub. L. 102–190, div. A, title II, part C).

Compliance of Ballistic Missile Defense Systems and Components With ABM Treaty

Pub. L. 103–337, div. A, title II, §231, Oct. 5, 1994, 108 Stat. 2699, prohibited the use of funds appropriated to the Department of Defense for the development or testing of anti-ballisitic missile systems or components except as consistent with the ABM Treaty, limited the use of funds appropriated for the Brilliant Eyes program until the Secretary of Defense submitted a report to Congress on the compliance of that program with the ABM Treaty, and directed the Secretary of Defense to review the Navy Upper Tier program to determine its compliance with the ABM Treaty.

Theater Missile Defense Master Plan

Pub. L. 103–160, div. A, title II, §235, Nov. 30, 1993, 107 Stat. 1598, directed the Secretary of Defense to maximize the use of existing systems and technologies and promote joint use by the military departments of ballistic missile defense equipment in carrying out the Theater Missile Defense Initiative, to submit to Congress a TMD Master Plan, and to conduct a review of opportunities to streamline the weapon systems acquisition process applicable to the development, testing, and deployment of theater ballistic missile defenses.

Transfer of Follow-On Technology Programs

Pub. L. 103–160, div. A, title II, §243, Nov. 30, 1993, 107 Stat. 1605, as amended by Pub. L. 104–201, div. A, title X, §1073(e)(1)(E), Sept. 23, 1996, 110 Stat. 2658; Pub. L. 107–314, div. A, title II, §225(b)(4)(B), Dec. 2, 2002, 116 Stat. 2486, provided that management and budget responsibility for research and development of any program to develop far-term follow-on technology relating to ballistic missile defense was to be provided through the Defense Advanced Research Projects Agency or the appropriate military department, and directed the Secretary of Defense to submit to the congressional defense committees a report identifying each program the Secretary had transferred from the Missile Defense Agency and the the agency or military department to which each such transfer was made.

Theater Missile Defense Initiative

Pub. L. 102–484, div. A, title II, §231, Oct. 23, 1992, 106 Stat. 2354, established the Theater Missile Defense Initiative to carry out all theater and tactical missile defense activities of the Department of Defense, effective 90 days after Oct. 23, 1992.

Limitation on Transfer of Certain Military Technology to Independent States of Former Soviet Union

Pub. L. 100–180, div. A, title II, §223, Dec. 4, 1987, 101 Stat. 1056, as amended by Pub. L. 103–199, title II, §203(a)(1), Dec. 17, 1993, 107 Stat. 2321, prohibited the transfer of technology developed with funds appropriated for the Ballistic Missile Defense Program to Russia or any other independent state of the former Soviet Union unless the President certified to Congress that such transfer was in the national interest and was to be made for the purpose of maintaining peace.

SDI Architecture To Require Human Decision Making

Pub. L. 100–180, div. A, title II, §224, Dec. 4, 1987, 101 Stat. 1056, prohibited the Federal Government from funding or otherwise supporting the development of command and control systems for strategic defense in the boost or post-boost phase against ballistic missile threats that would permit such strategic defenses to initiate the directing of damaging or lethal fire except by affirmative human decision at an appropriate level of authority.

Establishment of Federally Funded Research and Development Center To Support SDI Program

Pub. L. 100–180, div. A, title II, §227, Dec. 4, 1987, 101 Stat. 1057, authorized the Secretary of Defense, using funds appropriated to the Department of Defense for the Strategic Defense Initiative program, to enter into a contract not to be awarded before Oct. 1, 1989, to provide for the establishment and operation of a federally funded research and development center (FFRDC) to provide independent and objective technical support to the Strategic Defense Initiative program, and provided that no Federal funds could be provided to the new FFRDC after the end of the five-year period beginning on the date of the award of the first contract awarded.

Limitation on Establishment of Federally Funded Research and Development Center for Strategic Defense Initiative Program

Pub. L. 99–661, div. A, title II, §213, Nov. 14, 1986, 100 Stat. 3841, prohibited the Secretary of Defense from obligating or expending any funds for the purpose of operating a Federally funded research and development center that was established for the support of the Strategic Defense Initiative Program after Nov. 14, 1986, unless the Secretary submitted to the Committees on Armed Services of the Senate and House of Representatives a report with respect to such proposed center and funds were specifically authorized to be appropriated for such purpose in an Act other than an appropriations Act or a continuing resolution.

Annual Report on Ballistic Missile Defense Program

Pub. L. 100–180, div. A, title II, §231(a), Dec. 4, 1987, 101 Stat. 1059, provided that not later than Mar. 15, 1988 and Mar. 15, 1989, the Secretary of Defense was to transmit to Congress a report on the programs that constitute the Strategic Defense Initiative and on any other program relating to defense against ballistic missiles.

Plans for Management of Technical Data and Computer Capability Improvements

Pub. L. 98–525, title XII, §1252, Oct. 19, 1984, 98 Stat. 2610, directed Secretary of Defense, not later than one year after Oct. 19, 1984, to develop a plan for an improved system for the management of technical data relating to any major system of the Department of Defense and, not later than 5 years after Oct. 19, 1984, to complete implementation of the management plan, directed Comptroller General, not later than 18 months after Oct. 19, 1984, to transmit to Congress a report evaluating the plan developed, and directed Secretary of Defense, not later than 180 days after Oct. 19, 1984, to transmit to Congress a plan to improve substantially the computer capability of each of the military departments and of the Defense Logistics Agency to store and access rapidly data that is needed for the efficient procurement of supplies.

Consultation With Allies on Strategic Defense Initiative Program

Pub. L. 98–473, title I, §101(h) [title VIII, §8104], Oct. 12, 1984, 98 Stat. 1904, 1942, conveyed the sense of Congress that the President should consult with other member nations of the North Atlantic Treaty Organization, Japan, and other appropriate allies concerning the research being conducted in the Strategic Defense Initiative program and that the Secretary of Defense should report the status of such consultations at the time of the submission of annual budget presentation materials for each fiscal year beginning after Sept. 30, 1984.

Antisatellite Weapons Test

Pub. L. 100–180, div. A, title II, §208, Dec. 4, 1986, 101 Stat. 1048, prohibited the Secretary of Defense, until Oct. 1, 1988, from carrying out a test of the Space Defense System (antisatellite weapon) involving the F–15 launched miniature homing vehicle against an object in space until the President certified to Congress that the Soviet Union had conducted, after Dec. 4, 1987, a test against an object in space of a dedicated antisatellite weapon.

Pub. L. 99–661, div. A, title II, §231, Nov. 14, 1986, 100 Stat. 3847, prohibited the Secretary of Defense, until Oct. 1, 1987, from carrying out a test of the Space Defense System (anti-satellite weapon) against an object in space until the President certified to Congress that the Soviet Union had conducted, after Nov. 14, 1986, a test against an object in space of a dedicated anti-satellite weapon.

Similar provisions were contained in the following prior acts:

Pub. L. 99–500, §101(c) [title XI, §1101], Oct. 18, 1986, 100 Stat. 1783–82, 1783-177, and Pub. L. 99–591, §101(c) [title XI, §1101], Oct. 30, 1986, 100 Stat. 3341–82, 3341-177.

Pub. L. 99–190, §101(b) [title VIII, §8097], Dec. 19, 1985, 99 Stat. 1185, 1219.

Pub. L. 99–145, title II, §208(a), (b), Nov. 8, 1985, 99 Stat. 610, prohibited the use of funds to test the miniature homing vehicle (MHV) anti-satellite warhead launched from an F–15 aircraft unless the President made a certification to Congress as provided in section 8100 of the Department of Defense Appropriations Act, 1985 (Pub. L. 98–473, title I, §101(h) [title VIII, §8100], formerly set out as a note below), and provided that no more than three such tests could be conducted before Oct. 1, 1986.

Pub. L. 98–473, title I, §101(h) [title VIII, §8100], Oct. 12, 1984, 98 Stat. 1904, 1941, prohibited the use of funds to test the miniature homing vehicle (MHV) anti-satellite warhead launched from an F–15 aircraft unless the President made a certification to Congress that certain conditions had been satisfied, and provided that no more than three such tests could be conducted during fiscal year 1985.

Similar provisions were contained in the following prior authorization act:

Pub. L. 98–94, title XI, §1235, Sept. 24, 1983, 97 Stat. 695; as amended by Pub. L. 98–525, title II, §205, Oct. 19, 1984, 98 Stat. 2509.

East Coast Trident Base and MX Missile System Sites; Use of Funds Appropriated to Department of Defense; Assistance to Nearby Communities To Help Meet Costs of Increased Municipal Services

Pub. L. 96–418, title VIII, §802, Oct. 10, 1980, 94 Stat. 1775, as amended by Pub. L. 97–99, title IX, §904(b), Dec. 23, 1981, 95 Stat. 1382; Pub. L. 98–115, title VIII, §805, Oct. 11, 1983, 97 Stat. 785; Pub. L. 101–510, div. A, title XIII, §1322(f), Nov. 5, 1990, 104 Stat. 1672, authorized the Secretary of Defense to assist communities located near MX Missile System sites and the East Coast Trident Base, and the States in which such communities were located, in meeting the increased costs of municipal services and facilities resulting from the construction and operation of the MX Missile System or the East Coast Trident Base.

MX Missile and Basing Mode

Pub. L. 96–342, title II, §202, Sept. 8, 1980, 94 Stat. 1079, directed the Secretary of Defense to proceed with the development of the MX missile and a Multiple Protective Structure (MPS) basing mode in order to achieve an Initial Operational Capability not later than Dec. 31, 1986.

Development of MX Missile System

Pub. L. 96–29, title II, §202, June 27, 1979, 93 Stat. 79, directed the Secretary of Defense to proceed with the development of the Multiple Protective Structure (MPS) system concurrently with the development of the MX missile, unless and until the Secretary of Defense certified to the Congress that an alternative basing mode was militarily or technologically superior to, and was more cost effective than, the MPS system or the President informed the Congress that in his view the MPS system was not consistent with United States national security interests.

Trident Support Site, Bangor, Washington; Financial Aid to Local Communities; Reports

Pub. L. 93–552, title VI, §608, Dec. 27, 1974, 88 Stat. 1763, authorized the Secretary of Defense to assist communities located near the TRIDENT Support Site in Bangor, Washington, in meeting the increased costs of municipal services and facilities resulting from the construction and operation of the TRIDENT Weapon System, and directed the Secretary to transmit to the Committees on Armed Services of the Senate and the House of Representatives semiannual reports on such assistance provided during the preceding six-month period.

CHAPTER 322—MAJOR SYSTEMS AND MAJOR DEFENSE ACQUISITION PROGRAMS GENERALLY

        

Editorial Notes

Amendments

Pub. L. 117–81, div. A, title XVII, §1701(b)(16)(A), Dec. 27, 2021, 135 Stat. 2134, amended Pub. L. 116–283, div. A, title XVIII, §1847(a), Jan. 1, 2021, 134 Stat. 4252, which added this analysis, by adding item for subchapter V and striking out a second item for subchapter III "Contractors".

SUBCHAPTER I—MANAGEMENT

        

Editorial Notes

Amendments

2021—Pub. L. 117–81, div. A, title XVII, §1701(f)(7), Dec. 27, 2021, 135 Stat. 2139, added item 4212 and struck out former item 4212 "Risk management and mitigation".

Statutory Notes and Related Subsidiaries

Should-Cost Management

Pub. L. 115–91, div. A, title VIII, §837, Dec. 12, 2017, 131 Stat. 1474, provided that:

"(a) Requirement for Regulations.—Not later than 180 days after the date of the enactment of this Act [Dec. 12, 2017], the Secretary of Defense shall amend the Defense Supplement to the Federal Acquisition Regulation to provide for the appropriate use of the should-cost review process of a major weapon system in a manner that is transparent, objective, and provides for the efficiency of the systems acquisition process in the Department of the Defense.

"(b) Required Elements.—The regulations required under subsection (a) shall incorporate, at a minimum, the following elements:

"(1) A description of the features of the should-cost review process.

"(2) Establishment of a process for communicating with the prime contractor on the program the elements of a proposed should-cost review.

"(3) A method for ensuring that identified should-cost savings opportunities are based on accurate, complete, and current information and can be quantified and tracked.

"(4) A description of the training, skills, and experience that Department of Defense and contractor officials carrying out a should-cost review in subsection (a) should possess.

"(5) A method for ensuring appropriate collaboration with the contractor throughout the review process.

"(6) Establishment of review process requirements that provide for sufficient analysis and minimize any impact on program schedule."

Management of Manufacturing Risk in Major Defense Acquisition Programs

Pub. L. 111–383, div. A, title VIII, §812, Jan. 7, 2011, 124 Stat. 4264, as amended by Pub. L. 112–81, div. A, title VIII, §834, Dec. 31, 2011, 125 Stat. 1506, directed the Secretary of Defense to issue, not later than 180 days after Jan. 7, 2011, comprehensive guidance on the management of manufacturing risk in major defense acquisition programs and to ensure that the acquisition workforce chapter of the annual strategic workforce plan required by former section 115b of this title included an assessment of the critical manufacturing readiness knowledge and skills needed in the acquisition workforce and a plan of action for addressing any gaps in such knowledge and skills.

Congressional Notification of Cancellation of Major Automated Information Systems

Pub. L. 109–163, div. A, title VIII, §806, Jan. 6, 2006, 119 Stat. 3373, which required notification to the Committees on Armed Services and Appropriations of the Senate and the House of Representatives prior to cancellation of a major automated information system program that had been fielded or approved to be fielded or making a change that would significantly reduce the scope of such a program, was repealed by Pub. L. 118–159, div. A, title XVII, §1701(g), Dec. 23, 2025, 138 Stat. 2207.

§4211. Acquisition strategy

(a) Acquisition Strategy Required.—There shall be an acquisition strategy for each major defense acquisition program and each major system approved by a milestone decision authority.

(b) Responsible Official.—For each acquisition strategy required by subsection (a), the Under Secretary of Defense for Acquisition and Sustainment, or the milestone decision authority, when the milestone decision authority is the service acquisition executive of the military department that is managing the program, is responsible for issuing and maintaining the requirements for—

(1) the content of the strategy; and

(2) the review and approval process for the strategy.

(c) Considerations.—(1) In issuing requirements for the content of an acquisition strategy for a major defense acquisition program or major system, the Under Secretary, or the milestone decision authority, when the milestone decision authority is the service acquisition executive of the military department that is managing the program, shall ensure that—

(A) the strategy clearly describes the proposed top-level business and technical management approach for the program or system, in sufficient detail to allow the milestone decision authority to assess the viability of the proposed approach, the method of implementing laws and policies, and program objectives;

(B) the strategy contains a clear explanation of how the strategy is designed to be implemented with available resources, such as time, funding, and management capacity;

(C) the strategy is tailored to address program requirements and constraints; and

(D) the strategy considers the items listed in paragraph (2).

(2) Each strategy shall, where appropriate, consider the following:

(A) An approach that delivers required capability in increments, each depending on available mature technology, and that recognizes up front the need for future capability improvements.

(B) Acquisition approach, including industrial base considerations in accordance with section 4820 of this title.

(C) Risk management, including such methods as competitive prototyping at the system, subsystem, or component level.

(D) Business strategy, including measures to ensure competition at the system and subsystem level throughout the life-cycle of the program or system in accordance with section 4324 of this title.

(E) Contracting strategy, including—

(i) contract type and how the type selected relates to level of program risk in each acquisition phase;

(ii) how the plans for the program or system to reduce risk enable the use of fixed-price elements in subsequent contracts and the timing of the use of those fixed price elements;

(iii) market research; and

(iv) consideration of small business participation.

(F) Intellectual property strategy in accordance with sections 3771 through 3775 of this title.

(G) International involvement, including foreign military sales and cooperative opportunities, in accordance with section 2350a of this title.

(H) Multiyear procurement in accordance with section 3501 of this title.

(I) Integration of current intelligence assessments into the acquisition process.

(J) Requirements related to logistics, maintenance, and sustainment in accordance with sections 2464 and 2466 of this title.

(d) Review.—(1) The milestone decision authority shall review and approve, as appropriate, the acquisition strategy for a major defense acquisition program or major system at each of the following times:

(A) Milestone A approval.

(B) The decision to release the request for proposals for development of the program or system.

(C) Milestone B approval.

(D) Each subsequent milestone.

(E) Review of any decision to enter into full-rate production.

(F) When there has been—

(i) a significant change to the cost of the program or system;

(ii) a critical change to the cost of the program or system;

(iii) a significant change to the schedule of the program or system; or

(iv) a significant change to the performance of the program or system.

(G) Any other time considered relevant by the milestone decision authority.

(2) If the milestone decision authority revises an acquisition strategy for a program or system because of a change described in paragraph (1)(F), the milestone decision authority shall provide notice of the revision to the congressional defense committees.

(e) Definitions.—In this section:

(1) The term "Milestone A approval" means a decision to enter into technology maturation and risk reduction pursuant to guidance prescribed by the Secretary of Defense for the management of Department of Defense acquisition programs.

(2) The term "Milestone B approval" has the meaning provided in section 4172(e)(7) of this title.

(3) The term "milestone decision authority", with respect to a major defense acquisition program or major system, means the official within the Department of Defense designated with the overall responsibility and authority for acquisition decisions for the program or system, including authority to approve entry of the program or system into the next phase of the acquisition process.

(4) The term "management capacity", with respect to a major defense acquisition program or major system, means the capacity to manage the program or system through the use of highly qualified organizations and personnel with appropriate experience, knowledge, and skills.

(5) The term "significant change to the cost", with respect to a major defense acquisition program or major system, means a significant cost growth threshold, as that term is defined in section 4371(a)(2) of this title.

(6) The term "critical change to the cost", with respect to a major defense acquisition program or major system, means a critical cost growth threshold, as that term is defined in section 4371(a)(3) of this title.

(7) The term "significant change to the schedule", with respect to a major defense acquisition program or major system, means any schedule delay greater than six months in a reported event.

(Added Pub. L. 114–92, div. A, title VIII, §821(a)(1), Nov. 25, 2015, 129 Stat. 897, §2431a; amended Pub. L. 114–328, div. A, title VIII, §848, Dec. 23, 2016, 130 Stat. 2292; Pub. L. 115–91, div. A, title X, §1081(a)(39), Dec. 12, 2017, 131 Stat. 1596; Pub. L. 116–92, div. A, title IX, §902(70), Dec. 20, 2019, 133 Stat. 1551; renumbered §4211 and amended Pub. L. 116–283, div. A, title XVIII, §1847(b)(1), (2), Jan. 1, 2021, 134 Stat. 4253; Pub. L. 117–81, div. A, title XVII, §1701(s)(1), Dec. 27, 2021, 135 Stat. 2149; Pub. L. 118–159, div. A, title XVII, §1701(a)(39), Dec. 23, 2024, 138 Stat. 2205.)

Editorial Notes

Amendments

2024—Subsec. (a). Pub. L. 118–159, §1701(a)(39)(B), struck out ", each major automated information system," after "defense acquisition program".

Subsec. (c)(1). Pub. L. 118–159, §1701(a)(39)(A), struck out ", major automated information system," after "defense acquisition program".

Subsec. (c)(2)(H). Pub. L. 118–159, §1701(a)(39)(C), substituted "section 3501 of this title" for "sections 3501 through 3511 of this title".

Subsecs. (d), (e). Pub. L. 118–159, §1701(a)(39)(A), struck out ", major automated information system," after "defense acquisition program" wherever appearing.

2021—Pub. L. 116–283, §1847(b)(1)(A), renumbered section 2431a of this title as this section.

Subsec. (c)(2)(B). Pub. L. 116–283, §1847(b)(2), formerly §1847(b)(2)(B), as redesignated and amended by Pub. L. 117–81, §1701(s)(1), substituted "section 4820 of this title" for "section 2440 of this title".

Subsec. (c)(2)(D). Pub. L. 116–283, §1847(b)(1)(B)(i)(I), substituted "section 4324" for "section 2337".

Subsec. (c)(2)(F). Pub. L. 116–283, §1847(b)(1)(B)(i)(II), substituted "sections 3771 through 3775" for "section 2320".

Subsec. (c)(2)(H). Pub. L. 116–283, §1847(b)(1)(B)(i)(III), substituted "sections 3501 through 3511" for "section 2306b".

Subsec. (c)(3). Pub. L. 116–283, §1847(b)(2)(A), which directed the transfer of section 2440 of this title to subsec. (c)(3) of this section and substitution of "section 4811" for "section 2501" in text, was repealed by Pub. L. 117–81, §1701(s)(1)(A).

Subsec. (e). Pub. L. 116–283, §1847(b)(1)(C), which directed amendment of subsec. (e) by striking pars. (1) and (2) and redesignating pars. (3) to (10) as (1) to (8), respectively, was executed by striking pars. (1) and (2) and redesignating former pars. (3) to (9) as (1) to (7), respectively, to reflect the probable intent of Congress, as no par. (10) had been enacted. Prior to amendment, pars. (1) and (2) defined "major defense acquisition program" and "major system", respectively.

Subsec. (e)(4). Pub. L. 116–283, §1847(b)(1)(B)(ii)(I), substituted "section 4172(e)(7)" for "section 2366(e)(7)".

Subsec. (e)(7). Pub. L. 116–283, §1847(b)(1)(B)(ii)(II), substituted "section 4371(a)(2)" for "section 2433(a)(4)".

Subsec. (e)(8). Pub. L. 116–283, §1847(b)(1)(B)(ii)(III), substituted "section 4371(a)(3)" for "section 2433(a)(5)".

2019—Subsec. (b). Pub. L. 116–92 substituted "Under Secretary of Defense for Acquisition and Sustainment" for "Under Secretary of Defense for Acquisition, Technology, and Logistics" in introductory provisions.

2017—Subsec. (d)(1). Pub. L. 115–91 inserted "(1)" before "The milestone".

2016—Subsec. (b). Pub. L. 114–328, §848(1), in introductory provisions, inserted ", or the milestone decision authority, when the milestone decision authority is the service acquisition executive of the military department that is managing the program," after "the Under Secretary of Defense for Acquisition, Technology, and Logistics".

Subsec. (c)(1). Pub. L. 114–328, §848(2)(A), in introductory provisions, inserted ", or the milestone decision authority, when the milestone decision authority is the service acquisition executive of the military department that is managing the program," after "the Under Secretary".

Subsec. (c)(2)(C). Pub. L. 114–328, §848(2)(B), struck out ", in accordance with section 2431b of this title" before period at end.

Subsec. (d). Pub. L. 114–328, §848(3), substituted "The" for "(1) Subject to the authority, direction, and control of the Under Secretary of Defense for Acquisition, Technology, and Logistics, the" and, in par. (2), inserted "because of a change described in paragraph (1)(F)" after "for a program or system".

Statutory Notes and Related Subsidiaries

Effective Date of 2021 Amendment

Amendment by Pub. L. 117–81 applicable as if included in the enactment of title XVIII of Pub. L. 116–283 as enacted, see section 1701(a)(2) of Pub. L. 117–81, set out in a note preceding section 3001 of this title and note below.

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 a note preceding section 3001 of this title.

§4212. Risk management and mitigation in major defense acquisition programs and major systems

(a) Requirement.—The Secretary of Defense shall ensure that the initial acquisition strategy (required under section 4211 of this title) approved by the milestone decision authority and any subsequent revisions include the following:

(1) A comprehensive approach for managing and mitigating risk (including technical, cost, and schedule risk) during each of the following periods or when determined appropriate by the milestone decision authority:

(A) The period preceding engineering manufacturing development, or its equivalent.

(B) The period preceding initial production.

(C) The period preceding full-rate production.

(2) An identification of the major sources of risk in each of the periods listed in paragraph (1) to improve programmatic decisionmaking and appropriately minimize and manage program concurrency.

(b) Approach to Manage and Mitigate Risks.—The comprehensive approach to manage and mitigate risk included in the acquisition strategy for purposes of subsection (a)(1) shall, at a minimum, include consideration of risk mitigation techniques such as the following:

(1) Prototyping (including prototyping at the system, subsystem, or component level and competitive prototyping, where appropriate) and, if prototyping at either the system, subsystem, or component level is not used, an explanation of why it is not appropriate.

(2) Modeling and simulation, the areas that modeling and simulation will assess, and identification of the need for development of any new modeling and simulation tools in order to support the comprehensive strategy.

(3) Technology demonstrations and decision points for disciplined transition of planned technologies into programs or the selection of alternative technologies.

(4) Multiple design approaches.

(5) Alternative designs, including any designs that meet requirements but do so with reduced performance.

(6) Phasing of program activities or related technology development efforts in order to address high-risk areas as early as feasible.

(7) Manufacturability and industrial base availability.

(8) Independent risk element assessments by outside subject matter experts.

(9) Schedule and funding margins for identified risks.

(c) Preference for Prototyping.—To the maximum extent practicable and consistent with the economical use of available financial resources, the milestone decision authority for each major defense acquisition program shall ensure that the acquisition strategy for the program provides for—

(1) the production of competitive prototypes at the system or subsystem level before Milestone B approval; or

(2) if the production of competitive prototypes is not practicable, the production of single prototypes at the system or subsystem level.

(d) Concurrency Defined.—In this section, the term "concurrency" means, with respect to an acquisition strategy, the combination or overlap of program phases or activities.

(Added Pub. L. 114–92, div. A, title VIII, §822(a)(1), Nov. 25, 2015, 129 Stat. 900, §2431b; amended Pub. L. 114–328, div. A, title X, §1081(a)(7), Dec. 23, 2016, 130 Stat. 2417; renumbered §4212 and amended Pub. L. 116–283, div. A, title XVIII, §1847(b)(3), Jan. 1, 2021, 134 Stat. 4254.)

Editorial Notes

Amendments

2021—Pub. L. 116–283, §1847(b)(3), renumbered section 2431b of this title as this section.

Subsec. (a). Pub. L. 116–283, §1847(b)(3)(A), substituted "section 4211" for "section 2431a".

Subsec. (d). Pub. L. 116–283, §1847(b)(3)(B), substituted "Concurrency Defined" for "Definitions" in subsec. heading, struck out par. (1) designation and heading, substituted "In this section, the term" for "The term", and struck out par. (2) which defined "major defense acquisition program" and "major system".

2016—Subsec. (d). Pub. L. 114–328 amended subsec. (d) generally. Prior to amendment, subsec. (d) defined terms "major defense acquisition program" and "major system".

Statutory Notes and Related Subsidiaries

Effective Date of 2021 Amendment

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 a note preceding section 3001 of this title.

§4214. Baseline description

(a) Baseline Description Requirement.—(1) The Secretary of a military department shall establish a baseline description for each major defense acquisition program and for each designated major subprogram under the program under the jurisdiction of such Secretary.

(2) The baseline shall include sufficient parameters to describe the cost estimate (referred to as the "Baseline Estimate" in sections 4371 through 4375 of this title), schedule, performance, supportability, and any other factor of such major defense acquisition program or designated major subprogram.

(b) Funding Limit.—No amount appropriated or otherwise made available to the Department of Defense for carrying out a major defense acquisition program or any designated major subprogram under the program may be obligated after the program or subprogram enters system development and demonstration without an approved baseline description unless such obligation is specifically approved by the Under Secretary of Defense for Acquisition and Sustainment.

(c) Schedule.—A baseline description for a major defense acquisition program or any designated major subprogram under the program shall be prepared under this section—

(1) before the program or subprogram enters system development and demonstration;

(2) before the program or subprogram enters production and deployment; and

(3) before the program or subprogram enters full rate production.

(d) Original Baseline Estimate.—(1) In this subpart, the term "original Baseline Estimate", with respect to a major defense acquisition program or any designated major subprogram under the program, means the baseline description established with respect to the program or subprogram under subsection (a) prepared before the program or subprogram enters system development and demonstration, or at program or subprogram initiation, whichever occurs later, without adjustment or revision (except as provided in paragraph (2)).

(2) An adjustment or revision of the original baseline description of a major defense acquisition program or any designated major subprogram under the program may be treated as the original Baseline Estimate for the program or subprogram for purposes of this chapter only if the percentage increase in the program acquisition unit cost or procurement unit cost under such adjustment or revision exceeds the critical cost growth threshold for the program or subprogram under sections 4371 through 4375 of this title, as determined by the Secretary of the military department concerned under section 4374 of this title.

(3) In the event of an adjustment or revision of the original baseline description of a major defense acquisition program or any designated major subprogram under the program, the Secretary of Defense shall include in the next Selected Acquisition Report to be submitted under section 4351 of this title after such adjustment or revision a notification to the congressional defense committees of such adjustment or revision, together with the reasons for such adjustment or revision.

(e) Regulations.—The Secretary of Defense shall prescribe regulations governing the following:

(1) The content of baseline descriptions under this section.

(2) The submission to the Secretary of the military department concerned and the Under Secretary of Defense for Acquisition and Sustainment by the program manager for a program for which there is an approved baseline description (or in the case of a major defense acquisition program with one or more designated major subprograms, approved baseline descriptions for such subprograms) under this section of reports of deviations from any such baseline description of the cost, schedule, performance, supportability, or any other factor of the program or subprogram.

(3) Procedures for review of such deviation reports within the Department of Defense.

(4) Procedures for submission to, and approval by, the Secretary of Defense of revised baseline descriptions.

(Added Pub. L. 99–500, §101(c) [title X, §904(a)(1)], Oct. 18, 1986, 100 Stat. 1783–82, 1783-133, and Pub. L. 99–591, §101(c) [title X, §904(a)(1)], Oct. 30, 1986, 100 Stat. 3341–82, 3341-133, §2435; Pub. L. 99–661, div. A, title IX, formerly title IV, §904(a)(1), Nov. 14, 1986, 100 Stat. 3912, renumbered title IX, Pub. L. 100–26, §3(5), Apr. 21, 1987, 101 Stat. 273; amended Pub. L. 100–26, §7(b)(6), Apr. 21, 1987, 101 Stat. 280; Pub. L. 100–180, div. A, title VIII, §803(a), Dec. 4, 1987, 101 Stat. 1125; Pub. L. 100–370, §1(i)(1), July 19, 1988, 102 Stat. 848; Pub. L. 100–456, div. A, title XII, §1233(l)(4), Sept. 29, 1988, 102 Stat. 2058; Pub. L. 101–189, div. A, title VIII, §811(b), Nov. 29, 1989, 103 Stat. 1493; Pub. L. 101–510, div. A, title XII, §1207(b), title XIV, §1484(k)(11), Nov. 5, 1990, 104 Stat. 1665, 1719; Pub. L. 103–160, div. A, title IX, §904(d)(1), Nov. 30, 1993, 107 Stat. 1728; Pub. L. 103–355, title III, §3005(a), Oct. 13, 1994, 108 Stat. 3330; Pub. L. 107–107, div. A, title VIII, §821(d), title X, §1048(b)(2), Dec. 28, 2001, 115 Stat. 1182, 1225; Pub. L. 109–163, div. A, title VIII, §802(d)(1), Jan. 6, 2006, 119 Stat. 3369; Pub. L. 109–364, div. A, title VIII, §806, Oct. 17, 2006, 120 Stat. 2315; Pub. L. 110–417, [div. A], title VIII, §811(d), Oct. 14, 2008, 122 Stat. 4524; Pub. L. 116–92, div. A, title IX, §902(71), Dec. 20, 2019, 133 Stat. 1551; renumbered §4214 and amended Pub. L. 116–283, div. A, title XVIII, §1847(b)(4), Jan. 1, 2021, 134 Stat. 4254; Pub. L. 117–81, div. A, title XVII, §1701(o)(6)(C)(i), Dec. 27, 2021, 135 Stat. 2147.)

Historical and Revision Notes

1988 Act

Subsection (c) is based on Pub. L. 98–525, title XII, §1243, Oct. 19, 1984, 98 Stat. 2609, as amended by Pub. L. 100–26, §110(a)(1), Apr. 21, 1987, 101 Stat. 288.

Editorial Notes

Codification

Pub. L. 110–417, §811(d)(2)(B), (3)(B), (4)(B)(i), which directed amendment of this section by inserting "or subprogram" after "the program" in subsec. (b) and after "the program" each place it appeared in subsecs. (c) and (d), was executed by making the insertions after "the program" each place it appeared in those subsecs. except after "designated major subprogram under the program", to reflect the probable intent of Congress.

Pub. L. 99–591 is a corrected version of Pub. L. 99–500.

Pub. L. 99–500, Pub. L. 99–591, and Pub. L. 99–661 added identical sections.

Amendments

2021—Pub. L. 116–283, §1847(b)(4), renumbered section 2435 of this title as this section.

Subsec. (a)(2). Pub. L. 116–283, §1847(b)(4)(A), substituted "sections 4371 through 4375" for "section 2433".

Subsec. (d)(1). Pub. L. 116–283, §1847(b)(4)(B)(i), substituted "In this subpart" for "In this chapter".

Subsec. (d)(2). Pub. L. 116–283, §1847(b)(4)(A), (B)(ii), substituted "sections 4371 through 4375" for "section 2433" and "section 4374 of this title" for "subsection (d) of such section".

Subsec. (d)(3). Pub. L. 116–283, §1847(b)(4)(B)(iii), as amended by Pub. L. 117–81, §1701(o)(6)(C)(i), substituted "section 4351" for "section 2432".

2019—Subsecs. (b), (e)(2). Pub. L. 116–92 substituted "the Under Secretary of Defense for Acquisition and Sustainment" for "the Under Secretary of Defense for Acquisition, Technology, and Logistics".

2008—Subsec. (a). Pub. L. 110–417, §811(d)(1), inserted "and for each designated major subprogram under the program" after "major defense acquisition program" in par. (1) and "or designated major subprogram" after "major defense acquisition program" in par. (2).

Subsec. (b). Pub. L. 110–417, §811(d)(2), inserted "or any designated major subprogram under the program" after "major defense acquisition program" and "or subprogram" after "after the program". See Codification note above.

Subsec. (c). Pub. L. 110–417, §811(d)(3), inserted "or any designated major subprogram under the program" after "major defense acquisition program" in introductory provisions and "or subprogram" after "the program" in pars. (1) to (3). See Codification note above.

Subsec. (d). Pub. L. 110–417, §811(d)(4), inserted "or any designated major subprogram under the program" after "major defense acquisition program" wherever appearing, in par. (1), inserted "or subprogram" after "to the program", "before the program", and "at program", and, in par. (2), inserted "or subprogram" after "for the program" in two places. See Codification note above.

Subsec. (e)(2). Pub. L. 110–417, §811(d)(5), inserted "(or in the case of a major defense acquisition program with one or more designated major subprograms, approved baseline descriptions for such subprograms)" after "baseline description" and "or subprogram" before period at end and substituted "any such baseline description" for "the baseline".

2006—Subsec. (d). Pub. L. 109–163 added subsec. (d). Former subsec. (d) redesignated (e).

Subsec. (d)(1). Pub. L. 109–364 inserted "prepared before the program enters system development and demonstration, or at program initiation, whichever occurs later" after "program under subsection (a)".

Subsec. (e). Pub. L. 109–163 redesignated subsec. (d) as (e).

2001—Subsec. (b). Pub. L. 107–107, §§821(d)(1), 1048(b)(2), substituted "system development and demonstration" for "engineering and manufacturing development" and "Under Secretary of Defense for Acquisition, Technology, and Logistics" for "Under Secretary of Defense for Acquisition and Technology".

Subsec. (c)(1). Pub. L. 107–107, §821(d)(2)(A), substituted "system development and demonstration" for "demonstration and validation".

Subsec. (c)(2). Pub. L. 107–107, §821(d)(2)(B), substituted "production and deployment" for "engineering and manufacturing development".

Subsec. (c)(3). Pub. L. 107–107, §821(d)(2)(C), substituted "full rate production" for "production and deployment".

Subsec. (d)(2). Pub. L. 107–107, §1048(b)(2), substituted "Under Secretary of Defense for Acquisition, Technology, and Logistics" for "Under Secretary of Defense for Acquisition and Technology".

1994—Pub. L. 103–355 amended section generally. Prior to amendment, section related to enhanced program stability.

1993—Subsec. (b)(2)(B). Pub. L. 103–160 substituted "Under Secretary of Defense for Acquisition and Technology" for "Under Secretary of Defense for Acquisition".

1990—Subsec. (b)(1). Pub. L. 101–510, §1484(k)(11), struck out closing parenthesis after "such Secretary" in introductory provisions.

Subsec. (c). Pub. L. 101–510, §1207(b), struck out subsec. (c) which read as follows: "Stability of Program Managers.—(1) The tour of duty of an officer of the armed forces as a program manager of a major defense acquisition program shall be (A) not less than four years, or (B) until completion of a major program milestone (as defined in regulations prescribed by the Secretary of Defense).

"(2) The Secretary of the military department concerned may waive the length of the tour of duty prescribed in paragraph (1). The authority under the preceding sentence may not be delegated."

1989—Subsec. (a)(2)(B)(iv). Pub. L. 101–189, §811(b)(1), substituted "production" for "development".

Subsec. (b)(1). Pub. L. 101–189, §811(b)(2)(A), substituted "service acquisition executive designated by such Secretary" for "senior procurement executive of such military department (designated pursuant to section 16(3) of the Office of Federal Procurement Policy Act (41 U.S.C. 414(3))".

Subsec. (b)(2). Pub. L. 101–189, §811(b)(2)(B), substituted "180 days" for "90 days" in introductory provisions.

1988—Subsec. (b)(2). Pub. L. 100–456 clarified amendment by Pub. L. 100–180, §803(a). See 1987 Amendment note below.

Subsec. (c). Pub. L. 100–370 added subsec. (c).

1987—Subsec. (b)(2). Pub. L. 100–180, as amended by Pub. L. 100–456, substituted "under paragraph (1), and for which the total cost of completion of the stage will exceed by 15 percent or more, in the case of a development stage, or by 5 percent or more, in the case of a production stage, the amount specified in the baseline description established under subsection (a) for such stage; or any milestone specified in such baseline description will be missed by more than 90 days" for first reference to "under paragraph (1)".

Subsec. (c). Pub. L. 100–26, §7(b)(6), struck out subsec. (c) which defined "major defense acquisition program".

Statutory Notes and Related Subsidiaries

Effective Date of 2021 Amendment

Amendment by Pub. L. 117–81 applicable as if included in the enactment of title XVIII of Pub. L. 116–283 as enacted, see section 1701(a)(2) of Pub. L. 117–81, set out in a note preceding section 3001 of this title and note below.

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 a note preceding section 3001 of this title.

Effective Date of 2006 Amendment

Pub. L. 109–163, div. A, title VIII, §802(e), Jan. 6, 2006, 119 Stat. 3370, provided that:

"(1) In general.—The amendments made by this section [amending this section and former section 2433 of this title] shall take effect on the date of the enactment of this Act [Jan. 6, 2006], and shall apply with respect to any major defense acquisition program for which an original Baseline Estimate is first established before, on, or after that date.

"(2) Applicability to current major defense acquisition programs.—In the case of a major defense acquisition program for which the program acquisition unit cost or procurement unit cost, as applicable, exceeds the original Baseline Estimate for the program by more than 50 percent on the date of the enactment of this Act—

"(A) the current Baseline Estimate for the program as of such date of enactment is deemed to be the original Baseline Estimate for the program for purposes of [former] section 2433 of title 10, United States Code [see 10 U.S.C. 4371 to 4375] (as amended by this section); and

"(B) each Selected Acquisition Report submitted on the program after the date of the enactment of this Act shall reflect each of the following:

"(i) The original Baseline Estimate, as first established for the program, without adjustment or revision.

"(ii) The Baseline Estimate for the program that is deemed to be the original Baseline Estimate for the program under subparagraph (A).

"(iii) The current original Baseline Estimate for the program as adjusted or revised, if at all, in accordance with subsection (d)(2) of section 2435 of title 10, United States Code [now 10 U.S.C. 4214(d)(2)] (as added by subsection (d) of this section)."

Effective Date of 1990 Amendment

Pub. L. 101–510, div. A, title XII, §1207(b), Nov. 5, 1990, 104 Stat. 1665, provided that the amendment made by that section is effective Oct. 1, 1991.

Effective Date of 1988 Amendment

Amendment by Pub. L. 100–456 applicable as if included in the enactment of Pub. L. 100–180, see section 1233(l)(5) of Pub. L. 100–456 set out as a note under section 4172 of this title.

Effective Date

Pub. L. 99–500, §101(c) [title X, §904(b)], Oct. 18, 1986, 100 Stat. 1783–82, 1783-134, and Pub. L. 99–591, §101(c) [title X, §904(b)], Oct. 30, 1986, 100 Stat. 3341–82, 3341-134, and Pub. L. 99–661, div. A, title IX, formerly title IV, §904(b), Nov. 14, 1986, 100 Stat. 3914, renumbered title IX, Pub. L. 100–26, §3(5), Apr. 21, 1987, 101 Stat. 273, provided that: "Section 2435 of title 10, United States Code [now 10 U.S.C. 4214] (as added by subsection (a)(1)), shall apply to major defense acquisition programs that enter full-scale engineering development or full-rate production after the date of the enactment of this Act [Oct. 18, 1986]."

SUBCHAPTER II—CONTRACTING

        

Editorial Notes

Amendments

2021—Pub. L. 117–81, div. A, title XVII, §1701(f)(8), Dec. 27, 2021, 135 Stat. 2139, added item 4232 and struck out former item 4232 "Use of lowest price technically acceptable source selection process: prohibition".

Statutory Notes and Related Subsidiaries

Limitation on use of Cost-Type Contracts

Pub. L. 112–239, div. A, title VIII, §811, Jan. 2, 2013, 126 Stat. 1828, as amended by Pub. L. 116–92, div. A, title IX, §902(66), Dec. 20, 2019, 133 Stat. 1550, provided that:

"(a) Prohibition With Respect to Production of Major Defense Acquisition Programs.—Not later than 120 days after the date of the enactment of this Act [Jan. 2, 2013], the Secretary of Defense shall modify the acquisition regulations of the Department of Defense to prohibit the Department from entering into cost-type contracts for the production of major defense acquisition programs.

"(b) Exception.—

"(1) In general.—The prohibition under subsection (a) shall not apply in the case of a particular cost-type contract if the service acquisition executive, in the case of a major defense acquisition program of the military department, or the Under Secretary of Defense for Acquisition and Sustainment, in the case of a Defense-wide or Defense Agency major defense acquisition program, provides written certification to the congressional defense committees [Committees on Armed Services and Appropriations of the Senate and the House of Representatives] that a cost-type contract is needed to provide a required capability in a timely and cost-effective manner.

"(2) Scope of exception.—In any case for which the Under Secretary grants an exception under paragraph (1), the Under Secretary shall take affirmative steps to make sure that the use of cost-type pricing is limited to only those line items or portions of the contract where such pricing is needed to achieve the purposes of the exception. A written certification under paragraph (1) shall be accompanied by an explanation of the steps taken under this paragraph.

"(c) Definitions.—In this section:

"(1) Major defense acquisition program.—The term 'major defense acquisition program' has the meaning given the term in section 2430(a) of title 10, United States Code [now 10 U.S.C. 4201].

"(2) Production of a major defense acquisition program.—The term 'production of a major defense acquisition program' means the production and deployment of a major system that is intended to achieve an operational capability that satisfies mission needs, or any activity otherwise defined as Milestone C under Department of Defense Instruction 5000.02 or related authorities.

"(3) Contract for the production of a major defense acquisition program.—The term 'contract for the production of a major defense acquisition program'—

"(A) means a prime contract for the production of a major defense acquisition program; and

"(B) does not include individual line items for segregable efforts or contracts for the incremental improvement of systems that are already in production (other than contracts for major upgrades that are themselves major defense acquisition programs).

"(d) Applicability.—The requirements of this section shall apply to contracts for the production of major defense acquisition programs entered into on or after October 1, 2014."

Estimates of Potential Termination Liability of Contracts for the Development or Production of Major Defense Acquisition Programs

Pub. L. 112–239, div. A, title VIII, §812, Jan. 2, 2013, 126 Stat. 1829, directed the Under Secretary of Defense for Acquisition, Technology, and Logistics to review, not later than 180 days after Jan. 2, 2013, relevant acquisition guidance and ensure that program managers for major defense acquisition programs are preparing estimates of potential termination liability for certain covered contracts and directed the Comptroller General of the United States to submit to the congressional defense committees, not later than 270 days after Jan. 2, 2013, a report on the extent to which the Department of Defense is considering potential termination liability as a factor in entering into and in terminating covered contracts.

Determination of Contract Type for Development Programs

Pub. L. 109–364, div. A, title VIII, §818(b)–(g), Oct. 17, 2006, 120 Stat. 2329, 2330, as amended by Pub. L. 117–263, div. A, title VIII, §808(a), Dec. 23, 2022, 136 Stat. 2705; Pub. L. 118–159, div. A, title VIII, §823, Dec. 23, 2024, 138 Stat. 1983, provided that:

"(b) Modification of Regulations.—Not later than 120 days after the date of the enactment of this Act [Oct. 17, 2006], the Secretary of Defense shall modify the regulations of the Department of Defense regarding the determination of contract type for development programs.

"(c) Elements.—As modified under subsection (b), the regulations shall require the Milestone Decision Authority for a major defense acquisition program to select the contract type for a development program at the time of a decision on Milestone B approval (or Key Decision Point B approval in the case of a space program) that is consistent with the level of program risk for the program. The Milestone Decision Authority may select—

"(1) a fixed-price type contract (including a fixed price incentive contract); or

"(2) a cost type contract.

"(d) Conditions With Respect to Authorization of Cost Type Contract.—As modified under subsection (b), the regulations shall provide that the Milestone Decision Authority may authorize the use of a cost type contract under subsection (c) for a development program only upon a written determination that—

"(1) the program is so complex and technically challenging that it would not be practicable to reduce program risk to a level that would permit the use of a fixed-price type contract; and

"(2) the complexity and technical challenge of the program is not the result of a failure to meet the requirements established in section 2366a of title 10, United States Code [now 10 U.S.C. 4251].

"(e) Justification for Selection of Contract Type.—As modified under subsection (b), the regulations shall require the Milestone Decision Authority to document the basis for the contract type selected for a program. The documentation shall include an explanation of the level of program risk for the program and, if the Milestone Decision Authority determines that the level of program risk is high, the steps that have been taken to reduce program risk and reasons for proceeding with Milestone B approval despite the high level of program risk.

"(f) Conditions With Respect to Certain Low-rate Initial Production.—

"(1) In general.—The number of low-rate initial production lots associated with a major defense acquisition program may not be more than one if—

"(A) the milestone decision authority authorizes the use of a fixed-price type contract at the time of a decision on Milestone B approval; and

"(B) the scope of the work of the fixed-price type contract includes both the development and low-rate initial production of items for such major defense acquisition program.

"(2) Waiver.—The limitation in paragraph (1) may be waived by the applicable service acquisition executive or a designee of such executive if—

"(A) such waiver authority is not delegated to the level of the contracting officer; and

"(B) written notification of a granted waiver, including the associated rationale, is provided to the congressional defense committees [Committees on Armed Services and Appropriations of the Senate and the House of Representatives] not later than 30 days after issuance of the waiver.

"(3) Definitions.—In this subsection:

"(A) The term 'low-rate initial production' has the meaning given under section 4231 of title 10, United States Code.

"(B) The term 'milestone decision authority' has the meaning given in section 4211 of title 10, United States Code.

"(C) The term 'major defense acquisition program' has the meaning given in section 4201 of title 10, United States Code.

"(D) The term 'Milestone B approval' has the meaning given in section 4172(e) of title 10, United States Code.

"(g) Conditions With Respect to Certain Shipbuilding Contracts.—

"(1) Limitation.—With respect to a fixed-price type contract for the procurement of shipbuilding associated with a major defense acquisition program, the number of ships to be procured under such contract, including all options, may not be more than two if the scope of the work of such contract includes the detail design and the construction of items for such a major defense acquisition program.

"(2) Waiver.—The Secretary concerned may waive the limitation in paragraph (1) if such Secretary submits to the congressional defense committees, not later than 30 days after issuance of such waiver, a written notification of such waiver that includes a certification that the basic and functional design of any ship to be procured under a contract described in paragraph (1) are [sic] complete.

"(3) Definitions.—In this subsection:

"(A) The term 'basic and functional design' has the meaning given in section 8669c of title 10, United States Code.

"(B) The term 'construction' means steel cutting and module fabrication, assembly, and outfitting, keel laying, and module erection supporting the launch and eventual delivery of a completed ship.

"(C) The term 'detail design' means design using computer-aided modeling to enable the generation of work instructions for construction of the ship, where such work instructions show detailed system information and support construction, including guidance for subcontractors and suppliers, installation drawings, schedules, material lists, and lists of prefabricated materials and parts."

[Pub. L. 117–263, div. A, title VIII, §808(b), Dec. 23, 2022, 136 Stat. 2705, provided that: "Not later than 120 days after the date of the enactment of this Act [Dec. 23, 2022], the Secretary of Defense shall revise the Department of Defense Supplement to the Federal Acquisition Regulation and any applicable regulations regarding the use of fixed-price type contracts for a major defense acquisition program (as defined in section 4201 of title 10, United States Code) to carry out this section [enacting section 818(f) of Pub. L. 109–364, set out above] and the amendments made by this section."]

§4231. Major systems: determination of quantity for low-rate initial production

(a) Determination of Quantities To Be Procured for Low-Rate Initial Production.—(1) In the course of the development of a major system, the determination of what quantity of articles of that system should be procured for low-rate initial production (including the quantity to be procured for preproduction verification articles) shall be made—

(A) when the milestone B decision with respect to that system is made; and

(B) by the official of the Department of Defense who makes that decision.

(2) In this section, the term "milestone B decision" means the decision to approve the system development and demonstration of a major system by the official of the Department of Defense designated to have the authority to make that decision.

(3) Any increase from a quantity determined under paragraph (1) may only be made with the approval of the official making the determination.

(4) The quantity of articles of a major system that may be procured for low-rate initial production may not be less than one operationally configured production unit unless another quantity is established at the milestone B decision.

(5) The Secretary of Defense shall include a statement of the quantity determined under paragraph (1) in the first SAR submitted with respect to the program concerned after that quantity is determined. If the quantity exceeds 10 percent of the total number of articles to be produced, as determined at the milestone B decision with respect to that system, the Secretary shall include in the statement the reasons for such quantity. For purposes of this paragraph, the term "SAR" means a Selected Acquisition Report submitted under section 4351 of this title.

(b) Low-Rate Initial Production of Weapon Systems.—Except as provided in subsection (c), low-rate initial production with respect to a new system is production of the system in the minimum quantity necessary—

(1) to provide production-configured or representative articles for operational tests pursuant to section 4171 of this title;

(2) to establish an initial production base for the system; and

(3) to permit an orderly increase in the production rate for the system sufficient to lead to full-rate production upon the successful completion of operational testing.

(c) Low-Rate Initial Production of Naval Vessel and Satellite Programs.—With respect to naval vessel programs and military satellite programs, low-rate initial production is production of items at the minimum quantity and rate that (1) preserves the mobilization production base for that system, and (2) is feasible, as determined pursuant to regulations prescribed by the Secretary of Defense.

(Added Pub. L. 101–189, div. A, title VIII, §803(a), Nov. 29, 1989, 103 Stat. 1487, §2400; amended Pub. L. 103–355, title III, §3015, Oct. 13, 1994, 108 Stat. 3332; Pub. L. 104–106, div. A, title X, §1062(d), div. D, title XLIII, §4321(b)(13), Feb. 10, 1996, 110 Stat. 444, 673; Pub. L. 107–107, div. A, title VIII, §821(c), Dec. 28, 2001, 115 Stat. 1182; renumbered §4231 and amended Pub. L. 116–283, div. A, title XVIII, §1847(c)(1), Jan. 1, 2021, 134 Stat. 4254; Pub. L. 117–81, div. A, title XVII, §1701(o)(6)(C)(ii), Dec. 27, 2021, 135 Stat. 2147.)

Editorial Notes

Amendments

2021—Pub. L. 116–283, §1847(c)(1)(B), amended section catchline generally. Prior to amendment, section catchline read as follows: "Low-rate initial production of new systems".

Pub. L. 116–283, §1847(c)(1)(A), renumbered section 2400 of this title as this section.

Subsec. (a)(5). Pub. L. 116–283, §1847(c)(1)(A)(i), as amended by Pub. L. 117–81, §1701(o)(6)(C)(ii), substituted "section 4351" for "section 2432".

Subsec. (b)(1). Pub. L. 116–283, §1847(c)(1)(A)(ii), substituted "section 4171" for "section 2399".

2001—Subsec. (a)(1)(A). Pub. L. 107–107, §821(c)(1), substituted "milestone B" for "milestone II".

Subsec. (a)(2). Pub. L. 107–107 substituted "milestone B" for "milestone II" and "system development and demonstration" for "engineering and manufacturing development".

Subsec. (a)(4), (5). Pub. L. 107–107, §821(c)(1), substituted "milestone B" for "milestone II".

1996—Subsec. (a)(5). Pub. L. 104–106, §4321(b)(13), substituted "this paragraph" for "the preceding sentence".

Subsec. (c). Pub. L. 104–106, §1062(d), struck out "(1)" before "With respect to", redesignated subpars. (A) and (B) of former par. (1) as pars. (1) and (2), respectively, and struck out former par. (2) which read as follows: "For each naval vessel program and military satellite program, the Secretary of Defense shall submit to Congress a report providing—

"(A) an explanation of the rate and quantity prescribed for low-rate initial production and the considerations in establishing that rate and quantity;

"(B) a test and evaluation master plan for that program; and

"(C) an acquisition strategy for that program that has been approved by the Secretary, to include the procurement objectives in terms of total quantity of articles to be procured and annual production rates."

1994—Subsec. (a)(2). Pub. L. 103–355, §3015(1), substituted "this section" for "paragraph (1)" and "engineering and manufacturing development" for "full-scale engineering development".

Subsec. (a)(4). Pub. L. 103–355, §3015(2), (3), added par. (4) and redesignated former par. (4) as (5).

Subsec. (a)(5). Pub. L. 103–355, §3015(2), redesignated par. (4) as (5) and inserted after first sentence "If the quantity exceeds 10 percent of the total number of articles to be produced, as determined at the milestone II decision with respect to that system, the Secretary shall include in the statement the reasons for such quantity."

Statutory Notes and Related Subsidiaries

Effective Date of 2021 Amendment

Amendment by Pub. L. 117–81 applicable as if included in the enactment of title XVIII of Pub. L. 116–283 as enacted, see section 1701(a)(2) of Pub. L. 117–81, set out in a note preceding section 3001 of this title and note below.

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 a note preceding section 3001 of this title.

Effective Date of 1996 Amendment

For effective date and applicability of amendment by section 4321(b)(13) of Pub. L. 104–106, see section 4401 of Pub. L. 104–106, set out as a note under section 2220 of this title.

§4232. Prohibition on use of lowest price technically acceptable source selection process

(a) In General.—The Department of Defense shall not use a lowest price technically acceptable source selection process for the engineering and manufacturing development contract of a major defense acquisition program.

(b) Definitions.—In this section:

(1) Lowest price technically acceptable source selection process.—The term "lowest price technically acceptable source selection process" has the meaning given that term in part 15 of the Federal Acquisition Regulation.

(2) Engineering and manufacturing development contract.—The term "engineering and manufacturing development contract" means a prime contract for the engineering and manufacturing development of a major defense acquisition program.

(Added Pub. L. 115–91, div. A, title VIII, §832(a)(1), Dec. 12, 2017, 131 Stat. 1468, §2442; renumbered §4232 and amended Pub. L. 116–283, div. A, title XVIII, §1847(c)(2), Jan. 1, 2021, 134 Stat. 4254.)

Editorial Notes

Amendments

2021—Pub. L. 116–283 renumbered section 2442 of this title as this section and, in subsec. (b), redesignated par. (3) as (2) and struck out former par. (2) which defined "major defense acquisition program".

Statutory Notes and Related Subsidiaries

Effective Date of 2021 Amendment

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 a note preceding section 3001 of this title.

Effective Date

Pub. L. 115–91, div. A, title VIII, §832(b), Dec. 12, 2017, 131 Stat. 1468, provided that: "The requirements of section 2442 of title 10, United States Code [now 10 U.S.C. 4232], as added by subsection (a), shall apply to major defense acquisition programs for which budgetary authority is requested for fiscal year 2019 or a subsequent fiscal year."

§4236. Negotiation of price for technical data before development, production, or sustainment of major weapon systems

The Secretary of Defense shall ensure, to the maximum extent practicable, that the Department of Defense, before selecting a contractor for the engineering and manufacturing development of a major weapon system, production of a major weapon system, or sustainment of a major weapon system, negotiates a price for technical data to be delivered under a contract for such development, production, or sustainment.

(Added Pub. L. 115–91, div. A, title VIII, §835(a)(1), Dec. 12, 2017, 131 Stat. 1471, §2439; amended Pub. L. 115–232, div. A, title VIII, §867, Aug. 13, 2018, 132 Stat. 1901; renumbered §4236, Pub. L. 116–283, div. A, title XVIII, §1847(c)(3), Jan. 1, 2021, 134 Stat. 4254.)

Editorial Notes

Amendments

2021—Pub. L. 116–283 renumbered section 2439 of this title as this section.

2018—Pub. L. 115–232, §867(4), substituted ", production, or sustainment" for "or production" in section catchline.

Pub. L. 115–232, §867(1)–(3), inserted ", to the maximum extent practicable," after "shall ensure" and substituted "production of a major weapon system, or sustainment of a major weapon system" for "or for the production of a major weapon system" and ", production, or sustainment" for "or production".

Statutory Notes and Related Subsidiaries

Effective Date of 2021 Amendment

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 a note preceding section 3001 of this title.

Effective Date

Pub. L. 115–91, div. A, title VIII, §835(a)(3), Dec. 12, 2017, 131 Stat. 1471, provided that: "Section 2439 of title 10, United States Code [now 10 U.S.C. 4236], as added by paragraph (1), shall apply with respect to any contract for engineering and manufacturing development of a major weapon system, or for the production of a major weapon system, for which the contract solicitation is issued on or after the date occurring one year after the date of the enactment of this Act [Dec. 12, 2017]."

SUBCHAPTER III—MILESTONES FOR MAJOR DEFENSE ACQUISITION PROGRAMS

        

Editorial Notes

Amendments

2024—Pub. L. 118–159, div. A, title VIII, §§806(a)(2), 807(1), Dec. 23, 2024, 138 Stat. 1974, substituted "factors to be considered" for "determination required" in item 4251 and "factors to be considered before" for "certification required before" in item 4252. Amendment to item 4252 was made pursuant to operation of section 102 of this title.

§4251. Major defense acquisition programs: factors to be considered before Milestone A approval

(a) Responsibilities.—Before granting Milestone A approval for a major defense acquisition program or a major subprogram, the milestone decision authority for the program or subprogram shall ensure that—

(1) information about the program or subprogram is sufficient to warrant entry of the program or subprogram into the risk reduction phase;

(2) the cost, schedule, technical feasibility, and performance trade-offs that have been made do not overly constrain future trade space with regard to the program; and

(3) there are sound plans for progression of the program or subprogram to the development phase.

(b) Factors to Be Considered for Milestone a Approval.—A major defense acquisition program or subprogram may not receive Milestone A approval or otherwise be initiated prior to Milestone B approval until the milestone decision authority confirms that the following factors were considered in the decision to grant Milestone A approval:

(1) The program or subprogram fulfills an approved requirements document.

(2) The program or subprogram has conducted appropriate market research.

(3) With respect to any identified areas of risk, there is a plan to reduce the risk.

(4) Planning for sustainment has been addressed.

(5) An analysis of alternatives has been performed consistent with study guidance developed by the Director of Cost Assessment and Program Evaluation, or in lieu of an analysis of alternatives, early experimentation with a combatant commander has been conducted.

(6) A life cycle cost estimate for the program or subprogram has been submitted by the component and that the level of resources required to complete the technology maturation and risk reduction phase of the program is sufficient for successful program execution.

(7) The program or subprogram meets any other considerations the milestone decision authority considers relevant.

(c) Written Record of a Milestone Decision.—The milestone decision authority shall issue a written record of a milestone decision at the time that Milestone A approval is granted. The record shall confirm compliance with subsection (b) and specifically state that the milestone decision authority considered the factors described in such subsection prior to the decision to grant milestone approval. The milestone decision authority shall retain records of the basis for the milestone decision.

(d) Submissions to Congress on Milestone A.—

(1) Notification.—Not later than 15 days after granting Milestone A approval for a major defense acquisition program, the milestone decision authority for the program shall provide to the congressional defense committees and, in the case of intelligence or intelligence-related activities, the congressional intelligence committees a written record of the milestone decision.

(2) Additional information.—At the request of any of the congressional defense committees or, in the case of intelligence or intelligence-related activities, the congressional intelligence committees, the milestone decision authority shall submit to the committee an explanation of the basis for the decision to grant Milestone A approval with respect to a major defense acquisition program or major subprogram, and make available all underlying documentation.

(e) Definitions.—In this section:

(1) The term "requirements document" means any capabilities requirement document approved by the Joint Requirements Oversight Council that establishes the need for a materiel approach to resolve a capability gap.

(2) The term "Milestone A approval" means a decision to enter into technology maturation and risk reduction pursuant to guidance prescribed by the Secretary of Defense for the management of Department of Defense acquisition programs.

(3) The term "Milestone B approval" has the meaning provided that term in section 4172(e)(7) of this title.

(4) The term "milestone decision authority", with respect to a major defense acquisition program or a major subprogram, means the official within the Department of Defense designated with the overall responsibility and authority for acquisition decisions for the program or subprogram, including authority to approve entry of the program or subprogram into the next phase of the acquisition process.

(5) The term "congressional intelligence committees" has the meaning given that term in section 437(c) of this title.

(Added Pub. L. 110–181, div. A, title IX, §943(a)(1), Jan. 28, 2008, 122 Stat. 288, §2366b; renumbered §2366a and amended Pub. L. 110–417, [div. A], title VIII, §813(b), (e)(1), Oct. 14, 2008, 122 Stat. 4527; Pub. L. 111–23, title I, §101(d)(3), title II, §§201(e), 204(a), (b), May 22, 2009, 123 Stat. 1710, 1720, 1723; Pub. L. 111–383, div. A, title VIII, §814(b), title X, §1075(b)(33), Jan. 7, 2011, 124 Stat. 4266, 4370; Pub. L. 112–81, div. A, title VIII, §801(a), (e)(1), Dec. 31, 2011, 125 Stat. 1482, 1483; Pub. L. 112–239, div. A, title III, §322(e)(1), title X, §1076(a)(10), Jan. 2, 2013, 126 Stat. 1695, 1948; Pub. L. 114–92, div. A, title VIII, §823(a), Nov. 25, 2015, 129 Stat. 902; Pub. L. 114–328, div. A, title VIII, §§806(b), 807(d), 808(a), Dec. 23, 2016, 130 Stat. 2259, 2262; Pub. L. 115–232, div. A, title VIII, §831(b)(2), Aug. 13, 2018, 132 Stat. 1857; Pub. L. 116–92, div. A, title XVII, §1731(a)(44), Dec. 20, 2019, 133 Stat. 1814; renumbered §4251 and amended Pub. L. 116–283, div. A, title XVIII, §1847(d)(1), Jan. 1, 2021, 134 Stat. 4254; Pub. L. 118–159, div. A, title VIII, §806(a)(1), Dec. 23, 2024, 138 Stat. 1972.)

Editorial Notes

Amendments

2024—Pub. L. 118–159, §806(a)(1)(A), substituted "factors to be considered" for "determination required" in section catchline.

Subsec. (a)(2). Pub. L. 118–159, §806(a)(1)(B)(ii), inserted "do not overly constrain future trade space" after "with regard to the program".

Pub. L. 118–159, §806(a)(1)(B)(i), which directed striking out "the Secretary of the military department concerned and the Chief of the armed forces concerned concur in", was executed by striking out "the Secretary of the military department concerned and the Chief of the armed force concerned concur in" before "the cost", to reflect the probable intent of Congress.

Subsec. (b). Pub. L. 118–159, §806(a)(1)(C), amended subsec. (b) generally. Prior to amendment, subsec. (b) related to written determination requirements for approval.

Subsec. (c). Pub. L. 118–159, §806(a)(1)(E), added subsec. (c). Former subsec. (c) redesignated (d).

Subsec. (d). Pub. L. 118–159, §806(a)(1)(D), redesignated subsec. (c) as (d). Former subsec. (d) redesignated (e).

Subsec. (d)(1). Pub. L. 118–159, §806(a)(1)(F)(i)(II), substituted "a written record of the milestone decision." for "a brief summary report that contains the following elements:" and struck out subpars. (A) to (G) which listed elements to be included in the brief summary report required for Milestone A approval.

Pub. L. 118–159, §806(a)(1)(F)(i)(I), which directed substitution of "notification" for "brief summary report" in heading, was executed by substituting "Notification" for "Brief summary report", to reflect the probable intent of Congress.

Subsec. (d)(2). Pub. L. 118–159, §806(a)(1)(F)(ii), amended par. (2) generally. Prior to amendment, par. (2) related to requests for additional explanation of the basis for a determination.

Subsec. (e). Pub. L. 118–159, §806(a)(1)(D), (G), redesignated subsec. (d) as (e) and substituted "requirements document" for "initial capabilities document" in par. (1), redesignated pars. (5) and (8) as (4) and (5), respectively, and struck out former pars. (4), (6), and (7) which defined core logistics capabilities, fielding target, and major system component, respectively.

2021—Pub. L. 116–283, §1847(d)(1)(A), renumbered section 2366a of this title as this section.

Subsec. (b)(4). Pub. L. 116–283, §1847(d)(1)(B)(i), substituted "section 4272(a)(1)" for "section 2448b(a)(1)".

Subsec. (b)(8). Pub. L. 116–283, §1847(d)(1)(B)(ii), substituted "subchapter II of chapter 327" for "subchapter II of chapter 144B".

Subsec. (c)(1)(A). Pub. L. 116–283, §1847(d)(1)(C)(i), substituted "section 4271(a)" for "section 2448a(a)".

Subsec. (c)(1)(C). Pub. L. 116–283, §1847(d)(1)(C)(ii), substituted "section 3221(b)(6)" for "section 2334(a)(6)".

Subsec. (c)(1)(E). Pub. L. 116–283, §1847(d)(1)(C)(iii), substituted "section 4272" for "section 2448b".

Subsec. (d)(1), (2). Pub. L. 116–283, §1847(d)(1)(D)(i), redesignated pars. (2) and (3) as (1) and (2), respectively, and struck out former par. (1) which defined "major defense acquisition program".

Subsec. (d)(3). Pub. L. 116–283, §1847(d)(1)(D)(ii), substituted "section 4172(e)(7)" for "section 2366(e)(7)".

Pub. L. 116–283, §1847(d)(1)(D)(i), redesignated par. (4) as (3). Former par. (3) redesignated (2).

Subsec. (d)(4), (5). Pub. L. 116–283, §1847(d)(1)(D)(i), redesignated pars. (5) and (7) as (4) and (5), respectively. Former par. (4) redesignated (3).

Subsec. (d)(6). Pub. L. 116–283, §1847(d)(1)(D)(iii), substituted "section 4271(a)" for "section 2448a(a)".

Pub. L. 116–283, §1847(d)(1)(D)(i), redesignated par. (8) as (6) and struck out former par. (6) which defined "major subprogram".

Subsec. (d)(7). Pub. L. 116–283, §1847(d)(1)(D)(iv), substituted "section 4401(b)(3)" for "section 2446a(b)(3)".

Pub. L. 116–283, §1847(d)(1)(D)(i), redesignated par. (9) as (7). Former par. (7) redesignated (5).

Subsec. (d)(8) to (10). Pub. L. 116–283, §1847(d)(1)(D)(i), redesignated pars. (8) to (10) as (6) to (8), respectively.

2019—Subsec. (c)(1)(F). Pub. L. 116–92 substituted "subsection (b)(6)" for "section 2366a(b)(6) of this title".

2018—Subsec. (c)(1)(A). Pub. L. 115–232 struck out "by the Secretary of Defense" after "established".

2016—Subsec. (b)(4). Pub. L. 114–328, §807(d), inserted ", including risks determined by the identification of critical technologies required under section 2448b(a)(1) of this title or any other risk assessment" after "areas of risk".

Subsec. (b)(8), (9). Pub. L. 114–328, §806(b), added par. (8) and redesignated former par. (8) as (9).

Subsec. (c). Pub. L. 114–328, §808(a)(1), amended subsec. (c) generally. Prior to amendment, text of subsec. (c) read as follows: "At the request of any of the congressional defense committees, the Secretary of Defense shall submit to the committee an explanation of the basis for a determination made under subsection (b) with respect to a major defense acquisition program, together with a copy of the written determination. The explanation shall be submitted in unclassified form, but may include a classified annex."

Subsec. (d)(8) to (10). Pub. L. 114–328, §808(a)(2), added pars. (8) to (10).

2015—Pub. L. 114–92 amended section generally. Prior to amendment, section related to certification required before Milestone A approval of major defense acquisition programs.

2013—Pub. L. 112–239, §1076(a)(10)(C), made technical amendment to directory language of Pub. L. 112–81, §801(e)(1)(A). See 2011 Amendment note below.

Subsec. (a)(4). Pub. L. 112–239, §322(e)(1), substituted "core logistics capabilities" for "core depot-level maintenance and repair capabilities".

Subsec. (a)(5), (6). Pub. L. 112–239, §1076(a)(10)(A), made technical amendment to directory language of Pub. L. 112–81, §801(a)(1)(B). See 2011 Amendment notes below.

Subsec. (c)(7). Pub. L. 112–239, §1076(a)(10)(B), made technical amendment to directory language of Pub. L. 112–81, §801(a)(2). See 2011 Amendment note below.

Pub. L. 112–239, §322(e)(1), substituted "core logistics capabilities" for "core depot-level maintenance and repair capabilities" in two places.

2011—Pub. L. 112–81, §801(e)(1)(A), as amended by Pub. L. 112–239, §1076(a)(10)(C), struck out "or Key Decision Point A" after "Milestone A" in section catchline.

Subsec. (a). Pub. L. 112–81, §801(e)(1)(B), struck out ", or Key Decision Point A approval in the case of a space program," after "Milestone A approval" and ", or Key Decision Point B approval in the case of a space program," after "Milestone B approval" in introductory provisions.

Subsec. (a)(2). Pub. L. 112–81, §801(a)(1)(A), substituted "function" for "core competency".

Subsec. (a)(4). Pub. L. 112–81, §801(a)(1)(C), added par. (4). Former par. (4) redesignated (5).

Subsec. (a)(5). Pub. L. 112–81, §801(a)(1)(B), as amended by Pub. L. 112–239, §1076(a)(10)(A), redesignated par. (4) as (5). Former par. (5) redesignated (6).

Subsec. (a)(6). Pub. L. 112–81, §801(a)(1)(D), substituted "develop, procure, and sustain" for "develop and procure".

Pub. L. 112–81, §801(a)(1)(B), as amended by Pub. L. 112–239, §1076(a)(10)(A), redesignated par. (5) as (6).

Subsec. (b)(1). Pub. L. 112–81, §801(e)(1)(C)(i), struck out "(or Key Decision Point A approval in the case of a space program)" after "Milestone A approval".

Pub. L. 111–383, §814(b)(1)(A), substituted "a major defense acquisition program certified by the Milestone Decision Authority under subsection (a) or a designated major subprogram of such program, if the projected cost of the program or subprogram" for "a major defense acquisition program certified by the Milestone Decision Authority under subsection (a), if the projected cost of the program".

Subsec. (b)(2). Pub. L. 111–383, §814(b)(1)(B), inserted "or designated major subprogram" after "major defense acquisition program".

Subsec. (b)(2)(C)(ii). Pub. L. 112–81, §801(e)(1)(C)(ii), struck out ", or Key Decision Point A approval in the case of a space program," after "Milestone A approval".

Subsec. (c). Pub. L. 111–383, §1075(b)(33)(A), inserted a space after "(c)".

Subsec. (c)(2) to (5). Pub. L. 111–383, §814(b)(2), added par. (2) and redesignated former pars. (2) to (4) as (3) to (5), respectively. Former par. (5) redesignated (6).

Pub. L. 111–383, §1075(b)(33)(B), which directed substitution of "section 118b(c)(3) of this title" for "section 125a(a) of this title" in par. (4), was executed by making the substitution in par. (5) to reflect the probable intent of Congress and the amendment by Pub. L. 111–383, §814(b)(2)(A). See above.

Subsec. (c)(6). Pub. L. 111–383, §814(b)(2)(A), redesignated par. (5) as (6).

Subsec. (c)(7). Pub. L. 112–81, §801(a)(2), as amended by Pub. L. 112–239, §1076(a)(10)(B), added par. (7).

2009—Subsec. (a). Pub. L. 111–23, §204(a), substituted "may not receive Milestone A approval, or Key Decision Point A approval in the case of a space program, or otherwise be initiated prior to Milestone B approval, or Key Decision Point B approval in the case of a space program," for "may not receive Milestone A approval, or Key Decision Point A approval in the case of a space program," in introductory provisions.

Subsec. (a)(3). Pub. L. 111–23, §201(e)(1), struck out "and" at end.

Subsec. (a)(4). Pub. L. 111–23, §201(e)(3), added par. (4). Former par. (4) redesignated (5).

Pub. L. 111–23, §101(d)(3), inserted ", with the concurrence of the Director of Cost Assessment and Program Evaluation," after "has been submitted".

Subsec. (a)(5). Pub. L. 111–23, §201(e)(2), redesignated par. (4) as (5).

Subsec. (b). Pub. L. 111–23, §204(b), designated existing provisions as par. (1), substituted "by at least 25 percent, or the program manager determines that the period of time required for the delivery of an initial operational capability is likely to exceed the schedule objective established pursuant to section 181(b)(5) of this title by more than 25 percent," for "by at least 25 percent,", and added par. (2).

2008—Pub. L. 110–417, §813(b), renumbered section 2366b of this title as this section.

Subsec. (a)(1), (2). Pub. L. 110–417, §813(e)(1)(A), substituted "program" for "system".

Subsec. (a)(3). Pub. L. 110–417, §813(e)(1)(B), substituted "if the program" for "if the system" and "such program" for "such system".

Subsec. (a)(4). Pub. L. 110–417, §813(e)(1)(A), substituted "program" for "system" in two places.

Subsec. (b). Pub. L. 110–417, §813(e)(1)(C), substituted "major defense acquisition program" for "major system", "cost of the program" for "cost of the system", "estimate for the program" for "estimate for the system", "the program concerned" for "the system concerned", and "procure the program" for "procure the system".

Subsec. (c)(1). Pub. L. 110–417, §813(e)(1)(D), substituted " 'major defense acquisition program' " for " 'major system' " and "2430" for "2302(5)".

Statutory Notes and Related Subsidiaries

Effective Date of 2021 Amendment

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 a note preceding section 3001 of this title.

Effective Date of 2013 Amendment

Pub. L. 112–239, div. A, title III, §322(f), Jan. 2, 2013, 126 Stat. 1695, provided that: "This section [enacting sections 2460 and 2464 of this title, amending this section and sections 2366b, 2460, and 2464 of this title, repealing sections 2460 and 2464 of this title, and amending provisions set out as a note under this section] and the amendments made by this section shall take effect on December 31, 2011, the date of the enactment of the National Defense Authorization Act for Fiscal Year 2012 [Pub. L. 112–81], immediately after the enactment of that Act."

Pub. L. 112–239, div. A, title X, §1076(a), Jan. 2, 2013, 126 Stat. 1947, provided that the amendment made by section 1076(a)(10) is effective Dec. 31, 2011, and as if included in Pub. L. 112–81 as enacted.

Effective Date

Pub. L. 110–181, div. A, title IX, §943(c), Jan. 28, 2008, 122 Stat. 289, as amended by Pub. L. 110–417, [div. A], title VIII, §813(e)(2)(B), Oct. 14, 2008, 122 Stat. 4528, provided that: "Section 2366b of title 10, United States Code [now 10 U.S.C. 4251], as added by subsection (a), shall apply to major defense acquisition programs on and after March 1, 2008. In the case of the certification required by [former] paragraph (2) of subsection (a) of such section, during the period prior to the completion of the first quadrennial roles and missions review required by [former] section 118b of title 10, United States Code, the certification required by that paragraph shall be that the system is being executed by an entity with a relevant core competency as identified by the Secretary of Defense."

Analysis of Alternatives Pursuant to Materiel Development Decisions

Pub. L. 116–92, div. A, title VIII, §832, Dec. 20, 2019, 133 Stat. 1493, provided that:

"(a) Timeline.—Not later than 180 days after the date of the enactment of this Act [Dec. 20, 2019], the Secretary of Defense shall update existing guidance for analyses of alternatives conducted pursuant to a materiel development decision for a major defense acquisition program to incorporate the following:

"(1) Study completion within nine months.

"(2) Study guidance issued by the Director, Cost Assessment and Program Evaluation of a scope designed to provide for reasonable completion of the study within the nine-month period.

"(3) Procedures for waiver of the timeline requirements of this subsection on a case-by-case basis if—

"(A) the subject of the analysis is of extreme technical complexity;

"(B) collection of additional intelligence is required to inform the analysis;

"(C) insufficient technical expertise is available to complete the analysis; or

"(D) the Secretary determines that there [are] other sufficient reasons for delay of the analysis.

"(b) Reporting.—If an analysis of alternatives cannot be completed within the allotted time, or a waiver is used, the Secretary shall report to the congressional defense committees [Committees on Armed Services and Appropriations of the Senate and the House of Representatives] the following information:

"(1) For a waiver, the basis for use of the waivers, including the reasons why the study cannot be completed within the allotted time.

"(2) For a study estimated to take more than nine months—

"(A) an estimate of when the analysis will be completed;

"(B) an estimate of any additional costs to complete the analysis; and

"(C) other relevant information pertaining to the analysis and its completion.

"(c) Report on Analyses of Alternatives.—

"(1) Assessment.—

"(A) In general.—The Under Secretary of Defense for Acquisition and Sustainment shall engage with an independent entity, including under the Program for Acquisition Innovation Research, to assess the conduct of analyses of alternatives.

"(B) Elements.—The assessment required under subparagraph (A) shall—

"(i) assess the time required to complete analyses of alternatives within the Department of Defense completed over the last five fiscal years, as compared with best practices;

"(ii) provide recommendations and policy options to improve analyses of alternatives; and

"(iii) discuss any other matters as identified by the Under Secretary.

"(C) Access to data.—The Under Secretary shall ensure that the independent entity is provided access to the data, information, and resources necessary to complete the required analyses and assessment.

"(2) Report.—Not later than one year after the date of the enactment of this Act, the Under Secretary shall submit to the congressional defense committees a report including the assessment required under paragraph (1) and a review and assessment by the Under Secretary of the findings made in the assessment."

Milestone A Decisions

Pub. L. 114–92, div. A, title VIII, §802(d)(2), Nov. 25, 2015, 129 Stat. 880, provided that: "The Chief of the Armed Force concerned shall advise the milestone decision authority for a major defense acquisition program of the Chief's views on cost, schedule, technical feasibility, and performance trade-offs that have been made with regard to the program, as provided in section 2366a(a)(2) of title 10, United States Code [now 10 U.S.C. 4251(a)(2)], as amended by section 823 of this Act, prior to a Milestone A decision on the program."

Guidance

Pub. L. 112–81, div. A, title VIII, §801(d), Dec. 31, 2011, 125 Stat. 1483, provided that: "Not later than 120 days after the date of the enactment of this Act [Dec. 31, 2011], the Secretary of Defense shall issue guidance implementing the amendments made by subsections (a) and (b) [amending this section and section 2366b of this title], and subsection (c) [set out as a note preceding section 4321 of this title], in a manner that is consistent across the Department of Defense."

§4252. Major defense acquisition programs: factors to be considered before Milestone B approval

(a) Responsibilities.—Before granting Milestone B approval for a major defense acquisition program or major subprogram, the milestone decision authority for the program or subprogram shall ensure that—

(1) information about the program or subprogram is sufficient to warrant entry of the program or subprogram into the engineering and manufacturing development phase;

(2) appropriate trade-offs among cost, schedule, technical feasibility, and performance objectives have been made to ensure that the program or subprogram is affordable when considering the per-unit cost and the total life-cycle cost, and the Secretary of the military department concerned and the Chief of the armed force concerned concur with these trade-offs; and

(3) there are sound plans for progression of the program or subprogram to the production phase.

(b) Factors to Be Considered for Milestone B Approval.—A major defense acquisition program or major subprogram may not receive Milestone B approval until the milestone decision authority confirms the following factors were considered in the decision to grant Milestone B approval:

(1) The program or subprogram has received a preliminary design review and a formal post-preliminary design review or an equivalent assessment was conducted.

(2) The technology in the program or subprogram has been demonstrated in a relevant environment.

(3) The program or subprogram is affordable when considering the ability of the Department of Defense to accomplish the program's or subprogram's general mission using alternative systems.

(4) Reasonable lifecycle cost and schedule estimates have been developed to execute, with the concurrence of the Director of Cost Assessment and Program Evaluation, the plan under the program or subprogram.

(5) The estimated procurement unit cost for the program or subprogram and the estimated date for initial operational capability for the baseline description for the program or subprogram (under section 4214 of this title) have been established.

(6) Funding is expected to be available to execute the product development and production plan for the program or subprogram, consistent with the estimates described in paragraph (4) for the program or subprogram.

(7) Appropriate market research has been conducted prior to technology development, including market research of commercial products, commercial services, and nondevelopmental items (as defined in section 110 of title 41).

(8) The Department of Defense has completed an analysis of alternatives with respect to the program or subprogram, or in lieu of an analysis of alternatives, early experimentation with a combatant commander has been conducted.

(9) The Joint Requirements Oversight Council has accomplished its duties with respect to the program or subprogram pursuant to section 181(b) of this title, including an analysis of the operational requirements for the program or subprogram.

(10) Life-cycle sustainment planning has identified and evaluated relevant sustainment cost elements, factors, risks, and gaps that are likely to drive readiness of the system as well as operating and supporting costs.

(11) An estimate has been made of the requirements for core logistics capabilities and the associated sustaining workloads required to support such requirements.

(12) The program or subprogram complies with all relevant policies, regulations, and directives of the Department of Defense.

(13) Appropriate actions are planned for the acquisition of technical data required to support the program or subprogram.

(14) The program or subprogram has an approved life cycle sustainment plan required under section 4324(b) of this title.

(15) In the case of a naval vessel program or subprogram, such program or subprogram is in compliance with the requirements of section 8669b of this title.

(c) Written Record of Milestone Decision.—The milestone decision authority shall issue a written record of decision at the time that Milestone B approval is granted. The record shall confirm compliance with subsection (b) and specifically state that the milestone decision authority considered the factors described in subsection (b) prior to the decision to grant milestone approval. The milestone decision authority shall retain records of the basis for the milestone decision.

(d) Changes to Basis for Milestone Approval.—(1) The program manager for a major defense acquisition program that has received a written record of the milestone decision under subsection (c) shall immediately notify the milestone decision authority of any changes to the program or a designated major subprogram of such program that—

(A) alter the substantive basis for the decision of the milestone decision authority relating to any component of such decision specified in subsection (b); or

(B) otherwise cause the program or subprogram to deviate significantly from the material provided to the milestone decision authority in support of such decision.

(2) Upon receipt of information under paragraph (1), the milestone decision authority may rescind Milestone B approval if the milestone decision authority determines that such approval is no longer valid.

(e) Submissions to Congress on Milestone B.—

(1) Notification.—Not later than 15 days after granting Milestone B approval for a major defense acquisition program or major subprogram, the milestone decision authority for the program or subprogram shall provide to the congressional defense committees and, in the case of intelligence or intelligence-related activities, the congressional intelligence committees a written record of the milestone decision.

(2) Additional information.—(A) At the request of any of the congressional defense committees or, in the case of intelligence or intelligence-related activities, the congressional intelligence committees, the milestone decision authority shall submit to the committee an explanation of the basis for the decision to grant Milestone B approval with respect to a major defense acquisition program or major subprogram, or further information or underlying documentation.

(B) The explanation or additional information shall be submitted in unclassified form, but may include a classified annex.

(f) Definitions.—In this section:

(1) The term "milestone decision authority", with respect to a major defense acquisition program, means the official within the Department of Defense designated with the overall responsibility and authority for acquisition decisions for the program, including authority to approve entry of the program into the next phase of the acquisition process.

(2) The term "Milestone B approval" has the meaning provided that term in section 4172(e)(7) of this title.

(3) The term "core logistics capabilities" means the core logistics capabilities identified under section 2464(a) of this title.

(4) The term "congressional intelligence committees" has the meaning given that term in section 437(c) of this title.

(5) The term "written record of milestone decision", with respect to a major defense acquisition program or a major subprogram, means a document signed by the milestone decision authority that formalizes approved entry of the program or subprogram into the next phase of the acquisition process.

(Added Pub. L. 109–163, div. A, title VIII, §801(a), Jan. 6, 2006, 119 Stat. 3366, §2366a; amended Pub. L. 109–364, div. A, title VIII, §805, Oct. 17, 2006, 120 Stat. 2314; Pub. L. 110–181, div. A, title VIII, §812, Jan. 28, 2008, 122 Stat. 219; renumbered §2366b, Pub. L. 110–417, [div. A], title VIII, §813(a), (b), Oct. 14, 2008, 122 Stat. 4527; Pub. L. 111–23, title I, §101(d)(4), title II, §§201(f), 205(a), May 22, 2009, 123 Stat. 1710, 1720, 1724; Pub. L. 111–383, div. A, title VIII, §§813(d)(1), 814(c), title IX, §901(j)(4), title X, §1075(k)(1), Jan. 7, 2011, 124 Stat. 4265, 4266, 4324, 4378; Pub. L. 112–81, div. A, title VIII, §§801(b), (e)(2), 819(b), Dec. 31, 2011, 125 Stat. 1483, 1484, 1501; Pub. L. 112–239, div. A, title III, §322(e)(2), title IX, §904(e)(2), Jan. 2, 2013, 126 Stat. 1695, 1867; Pub. L. 113–66, div. A, title VIII, §§821(a), 822(a), title X, §1091(b)(1), Dec. 26, 2013, 127 Stat. 809, 876; Pub. L. 114–92, div. A, title VIII, §824(a), Nov. 25, 2015, 129 Stat. 903; Pub. L. 114–328, div. A, title VIII, §§805(a)(3), 807(e), 808(b), 843, Dec. 23, 2016, 130 Stat. 2255, 2262, 2263, 2290; Pub. L. 115–91, div. A, title VIII, §§835(b)(1), 838(a)(1), Dec. 12, 2017, 131 Stat. 1471, 1474; Pub. L. 115–232, div. A, title VIII, §831(b)(3), Aug. 13, 2018, 132 Stat. 1857; Pub. L. 116–92, div. A, title VIII, §833, Dec. 20, 2019, 133 Stat. 1494; renumbered §4252 and amended Pub. L. 116–283, div. A, title VIII, §802(b), title XVIII, §§1847(d)(2), 1883(b)(2), Jan. 1, 2021, 134 Stat. 3732, 4255, 4294; Pub. L. 117–81, div. A, title XVII, §1701(o)(6)(C)(iii), Dec. 27, 2021, 135 Stat. 2147; Pub. L. 118–159, div. A, title VIII, §807, Dec. 23, 2024, 138 Stat. 1974.)

Editorial Notes

Amendments

2024—Pub. L. 118–159, §807(1), substituted "factors to be considered before" for "certification required before" in section catchline.

Subsec. (a). Pub. L. 118–159, §807(4), added subsec. (a). Former subsec. (a) redesignated (b).

Subsec. (b). Pub. L. 118–159, §807(3), (5), redesignated subsec. (a) as (b) and amended it generally. Prior to amendment, subsec. related to certifications and determinations required for Milestone B approval.

Subsec. (c). Pub. L. 118–159, §807(6), added subsec. (c). Former subsec. (c) redesignated (e).

Subsec. (d). Pub. L. 118–159, §807(7)(A), substituted "Basis for Milestone Approval" for "Certifications or Determination" in heading.

Pub. L. 118–159, §807(2), (3), redesignated subsec. (b) as (d) and struck out former subsec. (d) which related to waiver of the certification and determination requirements to a major defense acquisition program in order to meet critical national security objectives.

Subsec. (d)(1). Pub. L. 118–159, §807(7)(B)(i), in introductory provisions, substituted "a written record of the milestone decision under subsection (c)" for "certifications or a determination under subsection (a)".

Subsec. (d)(1)(A). Pub. L. 118–159, §807(7)(B)(ii), substituted "decision of the milestone decision authority" for "certifications or determination of the milestone decision authority" and "decision specified in subsection (b)" for "certifications or determination specified in paragraph (1), (2), or (3) of subsection (a)".

Subsec. (d)(1)(B). Pub. L. 118–159, §807(7)(B)(iii), substituted "such decision" for "such certifications or determination".

Subsec. (d)(2). Pub. L. 118–159, §807(7)(C), struck out "withdraw the certifications or determination concerned or" after "milestone decision authority may" and substituted "approval is" for "certifications, determination, or approval are".

Subsec. (e). Pub. L. 118–159, §807(3), (8), redesignated subsec. (c) as (e) and amended it generally. Prior to amendment, subsec. related to submission to Congress of brief summary reports on Milestone B. Former subsec. (e) struck out.

Pub. L. 118–159, §807(2), struck out subsec. (e). Text read as follows: "Any budget request, budget justification material, budget display, reprogramming request, Selected Acquisition Report, or other budget documentation or performance report submitted by the Secretary of Defense to the President regarding a major defense acquisition program receiving a waiver pursuant to subsection (d) shall prominently and clearly indicate that such program has not fully satisfied the certification requirements of this section until such time as the milestone decision authority makes the determination that such program has satisfied all such certification requirements."

Subsec. (f). Pub. L. 118–159, §807(2), (3), redesignated subsec. (g) as (f) and struck out former subsec. (f). Prior to amendment, text of subsec. (f) read as follows: "The milestone decision authority may not delegate the certification requirement under subsection (a) or the authority to waive any component of such requirement under subsection (d)."

Subsec. (f)(4) to (6). Pub. L. 118–159, §807(9), added par. (5), redesignated par. (6) as (4), and struck out former pars. (4) and (5) which defined the terms fielding target and major system component, respectively.

2021—Pub. L. 116–283, §1847(d)(2)(A), renumbered section 2366b of this title as this section.

Subsec. (a)(2). Pub. L. 116–283, §1847(d)(2)(B)(i), substituted "section 4272" for "section 2448b".

Subsec. (a)(3)(D). Pub. L. 116–283, §1847(d)(2)(B)(ii)(I), substituted "section 4214 of this title" for "section 2435" and "section 4271(a)" for "section 2448a(a)".

Subsec. (a)(3)(N). Pub. L. 116–283, §1847(d)(2)(B)(ii)(II), substituted "section 4402(e)" for "section 2446b(e)".

Pub. L. 116–283, §802(b)(1)(A), struck out "and" after "met;".

Subsec. (a)(3)(O). Pub. L. 116–283, §802(b)(1)(B), which directed amendment of subpar. (O) by substituting "; and" for period at the end, was executed by making the substitution for semicolon at end to reflect the probable intent of Congress.

Subsec. (a)(3)(P). Pub. L. 116–283, §1883(b)(2), substituted "section 4324(b)" for "section 2337(b)".

Pub. L. 116–283, §802(b)(1)(C), added subpar. (P).

Subsec. (c)(1)(A). Pub. L. 116–283, §1847(d)(2)(C)(i)(I), substituted "section 4271(a)" for "section 2448a(a)".

Subsec. (c)(1)(C). Pub. L. 116–283, §1847(d)(2)(C)(i)(II), substituted "section 3221(b)(6)" for "section 2334(a)(6)" in introductory provisions.

Subsec. (c)(1)(E). Pub. L. 116–283, §1847(d)(2)(C)(i)(III), substituted "section 4272" for "section 2448b".

Subsec. (c)(1)(H). Pub. L. 116–283, §1883(b)(2), substituted "section 4324" for "section 2337".

Pub. L. 116–283, §802(b)(2)(B), added subpar. (H). Former subpar. (H) redesignated (I).

Subsec. (c)(1)(I). Pub. L. 116–283, §802(b)(2)(A), redesignated subpar. (H) as (I).

Subsec. (c)(2)(A). Pub. L. 116–283, §1847(d)(2)(C)(ii), as amended by Pub. L. 117–81, §1701(o)(6)(C)(iii), substituted "section 4351" for "section 2432".

Subsec. (d)(3). Pub. L. 116–283, §1847(d)(2)(D), substituted "section 4377" for "section 2433a(c)" in introductory provisions.

Subsec. (g)(1). Pub. L. 116–283, §1847(d)(2)(E)(i), redesignated par. (3) as (1) and struck out former par. (1) which defined "major defense acquisition program".

Subsec. (g)(2). Pub. L. 116–283, §1847(d)(2)(E)(i), (ii), redesignated par. (4) as (2), substituted "section 4172(e)(7)" for "section 2366(e)(7)", and struck out former par. (2) which defined "designated major subprogram".

Subsec. (g)(3). Pub. L. 116–283, §1847(d)(2)(E)(i), redesignated par. (5) as (3). Former par. (3) redesignated (1).

Subsec. (g)(4). Pub. L. 116–283, §1847(d)(2)(E)(i), (iii), redesignated par. (6) as (4) and substituted "section 4271(a)" for "section 2448a(a)". Former par. (4) redesignated (2).

Subsec. (g)(5). Pub. L. 116–283, §1847(d)(2)(E)(i), (iv), redesignated par. (7) as (5) and substituted "section 4401(b)(3)" for "section 2446a(b)(3)". Former par. (5) redesignated (3).

Subsec. (g)(6) to (8). Pub. L. 116–283, §1847(d)(2)(E)(i), redesignated pars. (6) to (8) as (4) to (6), respectively.

2019—Subsec. (a)(5). Pub. L. 116–92 added par. (5).

2018—Subsec. (a)(3)(D). Pub. L. 115–232, §831(b)(3)(A), struck out "Secretary of Defense after a request for such increase or delay by the" before "milestone decision authority".

Subsec. (c)(1)(A). Pub. L. 115–232, §831(b)(3)(B), struck out "by the Secretary of Defense" after "established".

2017—Subsec. (a)(3)(O). Pub. L. 115–91, §835(b)(1), added subpar. (O).

Subsec. (c)(1)(G), (H). Pub. L. 115–91, §838(a)(1), added subpar. (G) and redesignated former subpar. (G) as (H).

2016—Subsec. (a)(2). Pub. L. 114–328, §807(e)(1), substituted "technical risk assessment conducted under section 2448b of this title" for "assessment by the Assistant Secretary of Defense for Research and Engineering, in consultation with the Deputy Assistant Secretary of Defense for Developmental Test and Evaluation".

Subsec. (a)(3)(B). Pub. L. 114–328, §843(1), substituted "life-cycle cost;" for "acquisition cost in the context of the total resources available during the period covered by the future-years defense program submitted during the fiscal year in which the certification is made;".

Subsec. (a)(3)(C). Pub. L. 114–328, §807(e)(2)(A), struck out "and" at end.

Subsec. (a)(3)(D). Pub. L. 114–328, §807(e)(2)(C), added subpar. (D). Former subpar. (D) redesignated (E).

Subsec. (a)(3)(E). Pub. L. 114–328, §843(2), which directed amendment of subpar. (D) by substituting "funding is expected to be available to execute the product development and production plan for the program," for "funding is" and all that followed through "made,", was executed by making the substitution for "funding is available to execute the product development and production plan under the program, through the period covered by the future-years defense program submitted during the fiscal year in which the certification is made," in subpar. (E), to reflect the probable intent of Congress and the amendment by Pub. L. 114–328, §807(e)(2)(B). See below.

Pub. L. 114–328, §807(e)(2)(B), redesignated subpar. (D) as (E). Former subpar. (E) redesignated (F).

Subsec. (a)(3)(F) to (L). Pub. L. 114–328, §807(e)(2)(B), redesignated subpars. (E) to (K) as (F) to (L), respectively. Former subpar. (L) redesignated (M).

Subsec. (a)(3)(M). Pub. L. 114–328, §807(e)(2)(B), redesignated subpar. (L) as (M). Former subpar. (M) redesignated (N).

Pub. L. 114–328, §805(a)(3), added subpar. (M).

Subsec. (a)(3)(N). Pub. L. 114–328, §807(e)(2)(B), redesignated subpar. (M) as (N).

Subsec. (c). Pub. L. 114–328, §808(b)(1), amended subsec. (c) generally. Prior to amendment, text read as follows:

"(1) The certifications and determination under subsection (a) with respect to a major defense acquisition program shall be submitted to the congressional defense committees with the first Selected Acquisition Report submitted under section 2432 of this title after completion of the certification.

"(2) The milestone decision authority shall retain records of the basis for the certifications and determination under paragraphs (1), (2), and (3) of subsection (a).

"(3) At the request of any of the congressional defense committees, the Secretary of Defense shall submit to the committee an explanation of the basis for the certifications and determination under paragraphs (1), (2), and (3) of subsection (a) with respect to a major defense acquisition program. The explanation shall be submitted in unclassified form, but may include a classified annex."

Subsec. (g)(6) to (8). Pub. L. 114–328, §808(b)(2), added pars. (6) to (8).

2015—Pub. L. 114–92 amended section generally. Prior to amendment, section related to certification required before Milestone B approval of major defense acquisition programs.

2013—Subsec. (a)(3)(D). Pub. L. 112–239, §904(e)(2), substituted "the Assistant Secretary of Defense for Research and Engineering, in consultation with the Deputy Assistant Secretary of Defense for Developmental Test and Evaluation" for "the Assistant Secretary of Defense for Research and Engineering".

Subsec. (a)(3)(F). Pub. L. 112–239, §322(e)(2), as amended by Pub. L. 113–66, §1091(b)(1), substituted "core logistics capabilities" for "core depot-level maintenance and repair capabilities, as well as the associated logistics capabilities".

Subsec. (a)(3)(G), (H). Pub. L. 113–66, §821(a), added subpar. (G) and redesignated former subpar. (G) as (H).

Subsec. (a)(4). Pub. L. 113–66, §822(a), added par. (4).

2011—Pub. L. 112–81, §801(e)(2)(A), struck out "or Key Decision Point B" after "Milestone B" in section catchline.

Subsec. (a). Pub. L. 112–81, §801(e)(2)(B), struck out ", or Key Decision Point B approval in the case of a space program," after "Milestone B approval" in introductory provisions.

Subsec. (a)(3)(D). Pub. L. 111–383, §901(j)(4), substituted "Assistant Secretary of Defense for Research and Engineering" for "Director of Defense Research and Engineering".

Subsec. (a)(3)(E) to (G). Pub. L. 112–81, §801(b)(1), added subpars. (E) and (F) and redesignated former subpar. (E) as (G).

Subsec. (b)(1). Pub. L. 111–383, §814(c)(1)(A), substituted "any changes to the program or a designated major subprogram of such program" for "any changes to the program" in introductory provisions.

Subsec. (b)(1)(B). Pub. L. 111–383, §814(c)(1)(B), substituted "otherwise cause the program or subprogram" for "otherwise cause the program".

Subsec. (b)(2). Pub. L. 112–81, §801(e)(2)(C), struck out "(or Key Decision Point B approval in the case of a space program)" after "Milestone B approval".

Subsec. (d)(1). Pub. L. 112–81, §801(e)(2)(C), struck out "(or Key Decision Point B approval in the case of a space program)" after "Milestone B approval" in two places.

Pub. L. 111–383, §813(d)(1)(A), substituted "(as specified in paragraph (1), (2), or (3) of subsection (a))" for "(as specified in paragraph (1) or (2) of subsection (a))".

Subsec. (d)(2)(B). Pub. L. 111–383, §1075(k)(1), which directed amendment of directory language of Pub. L. 111–23, §205(a)(1)(B), resulting in substitution of "paragraphs (1), (2), and (3)" for "paragraphs (1) and (2)" in text, was not executed because of the prior identical amendment by Pub. L. 111–383, §813(d)(1)(B). See below.

Pub. L. 111–383, §813(d)(1)(B), substituted "specified in paragraphs (1), (2), and (3) of subsection (a)" for "specified in paragraphs (1) and (2) of subsection (a)".

Subsec. (d)(3). Pub. L. 112–81, §819(b), added par. (3).

Subsec. (g)(2) to (4). Pub. L. 111–383, §814(c)(2), added par. (2) and redesignated former pars. (2) and (3) as (3) and (4), respectively. Former par. (4) redesignated (5).

Subsec. (g)(5). Pub. L. 112–81, §801(b)(2), added par. (5) and struck out former par. (5) which read as follows: "The term 'Key Decision Point B' means the official program initiation of a National Security Space program of the Department of Defense, which triggers a formal review to determine maturity of technology and the program's readiness to begin the preliminary system design."

Pub. L. 111–383, §814(c)(2)(A), redesignated par. (4) as (5).

2009—Subsec. (a)(1)(B). Pub. L. 111–23, §201(f), inserted "appropriate trade-offs among cost, schedule, and performance objectives have been made to ensure that" before "the program is affordable".

Subsec. (a)(1)(C). Pub. L. 111–23, §101(d)(4), inserted ", with the concurrence of the Director of Cost Assessment and Program Evaluation," before "the product".

Subsec. (a)(1)(D). Pub. L. 111–23, §205(a)(3)(A), struck out "and" at end.

Subsec. (a)(2), (3). Pub. L. 111–23, §205(a)(3)(B), (C), added par. (2) and redesignated former par. (2) as (3).

Subsec. (a)(3)(D). Pub. L. 111–23, §205(a)(3)(D)(i), substituted ", as determined by the Milestone Decision Authority on the basis of an independent review and assessment by the Director of Defense Research and Engineering; and" for semicolon.

Subsec. (a)(3)(E), (F). Pub. L. 111–23, §205(a)(3)(D)(ii), (iii), redesignated subpar. (F) as (E) and struck out former subpar. (E) which read as follows: "the program demonstrates a high likelihood of accomplishing its intended mission; and".

Subsec. (d). Pub. L. 111–23, §205(a)(1), designated existing provisions as par. (1) and substituted par. (2) for "Whenever the milestone decision authority makes such a determination and authorizes such a waiver, the waiver, the determination, and the reasons for the determination shall be submitted in writing to the congressional defense committees within 30 days after the waiver is authorized."

Subsecs. (e) to (g). Pub. L. 111–23, §205(a)(2), added subsec. (e) and redesignated former subsecs. (e) and (f) as (f) and (g), respectively.

2008—Pub. L. 110–417, §813(a), (b), renumbered section 2366a of this title as this section.

Subsec. (a). Pub. L. 110–181, §812(1), amended subsec. (a) generally. Prior to amendment, subsec. (a) consisted of pars. (1) to (10) relating to required certifications by milestone decision authority for major defense acquisition program to receive Milestone B approval, or Key Decision Point B approval in the case of a space program.

Subsec. (b). Pub. L. 110–181, §812(3), added subsec. (b). Former subsec. (b) redesignated (c).

Subsec. (c). Pub. L. 110–181, §812(4), designated existing provisions as par. (1) and added par. (2).

Pub. L. 110–181, §812(2), redesignated subsec. (b) as (c). Former subsec. (c) redesignated (d).

Subsec. (d). Pub. L. 110–181, §812(5), substituted "authority may, at the time of Milestone B approval (or Key Decision Point B approval in the case of a space program) or at the time that such milestone decision authority withdraws a certification or rescinds Milestone B approval (or Key Decision Point B approval in the case of a space program) pursuant to subsection (b)(2), waive" for "authority may waive" and "paragraph (1) or (2)" for "paragraph (1), (2), (3), (4), (5), (6), (7), (8), or (9)".

Pub. L. 110–181, §812(2), redesignated subsec. (c) as (d). Former subsec. (d) redesignated (e).

Subsec. (e). Pub. L. 110–181, §812(6), substituted "subsection (d)" for "subsection (c)".

Pub. L. 110–181, §812(2), redesignated subsec. (d) as (e). Former subsec. (e) redesignated (f).

Subsec. (f). Pub. L. 110–181, §812(2), redesignated subsec. (e) as (f).

2006—Subsec. (a)(1) to (7). Pub. L. 109–364, §805(a)(1)–(3), added par. (1) and redesignated former pars. (1) to (6) as (2) to (7), respectively. Former par. (7) redesignated (10).

Subsec. (a)(8), (9). Pub. L. 109–364, §805(a)(4), (5), added pars. (8) and (9).

Subsec. (a)(10). Pub. L. 109–364, §805(a)(1), redesignated par. (7) as (10).

Subsec. (c). Pub. L. 109–364, §805(b), substituted "(5), (6), (7), (8), or (9)" for "(5), or (6)".

Statutory Notes and Related Subsidiaries

Effective Date of 2021 Amendment

Amendment by Pub. L. 117–81 applicable as if included in the enactment of title XVIII of Pub. L. 116–283 as enacted, see section 1701(a)(2) of Pub. L. 117–81, set out in a note preceding section 3001 of this title and note below.

Amendment by sections 1847(d)(2) and 1883(b)(2) of 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 a note preceding section 3001 of this title.

Effective Date of 2017 Amendment

Pub. L. 115–91, div. A, title VIII, §835(b)(2), Dec. 12, 2017, 131 Stat. 1471, provided that: "Section 2366b(a)(3)(O) of title 10, United States Code [now 10 U.S.C. 4252(a)(3)(O)], as added by paragraph (1), shall apply with respect to any major defense acquisition program receiving Milestone B approval on or after the date occurring one year after the date of the enactment of this Act [Dec. 12, 2017]."

Effective Date of 2013 Amendment

Pub. L. 113–66, div. A, title VIII, §821(b), Dec. 26, 2013, 127 Stat. 809, provided that: "The amendments made by subsection (a) [amending this section] shall take effect on the date of the enactment of this Act [Dec. 26, 2013], and shall apply with respect to major defense acquisition programs which are subject to Milestone B approval on or after the date occurring six months after the date of the enactment of this Act."

Pub. L. 113–66, div. A, title X, §1091(b), Dec. 26, 2013, 127 Stat. 876, provided in part that the amendment made by section 1091(b)(1) is effective as of Jan. 2, 2013, and as if included in Pub. L. 112–239 as enacted.

Amendment by section 322(e)(2) of Pub. L. 112–239 effective Dec. 31, 2011, immediately after enactment of Pub. L. 112–81, see section 322(f) of Pub. L. 112–239, set out as an note under section 4251 of this title.

Effective Date of 2011 Amendment

Pub. L. 111–383, div. A, title VIII, §813(d)(1), Jan. 7, 2011, 124 Stat. 4265, provided that the amendment made by section 813(d)(1) is effective as of May 22, 2009.

Amendment by section 901(j)(4) of Pub. L. 111–383 effective Jan. 1, 2011, see section 901(p) of Pub. L. 111–383, set out as a note under section 131 of this title.

Pub. L. 111–383, div. A, title X, §1075(k), Jan. 7, 2011, 124 Stat. 4378, provided that the amendment made by section 1075(k)(1) is effective as of May 22, 2009, and as if included in Pub. L. 111–23 as enacted.

Responsibility for Conducting Assessments

Pub. L. 115–91, div. A, title VIII, §838(a)(3), Dec. 12, 2017, 131 Stat. 1474, provided that: "For purposes of the sufficiency assessments required by section 2366b(c)(1) [now 10 U.S.C. 4252(c)(1)] and section 2366c(a)(4) [now 10 U.S.C. 4253(a)(4)] of such title [meaning title 10, United States Code], as added by paragraphs (1) and (2), with respect to a major defense acquisition program—

"(A) if the milestone decision authority for the program is the service acquisition executive of the military department that is managing the program, the sufficiency assessment shall be conducted by the senior official within the military department with responsibility for developmental testing; and

"(B) if the milestone decision authority for the program is the Under Secretary of Defense for Acquisition and Sustainment, the sufficiency assessment shall be conducted by the senior Department of Defense official with responsibility for developmental testing."

Guidance

Pub. L. 115–91, div. A, title VIII, §838(a)(4), Dec. 12, 2017, 131 Stat. 1475, provided that: "Within one year after the date of the enactment of this Act [Dec. 12, 2017], the senior Department of Defense official with responsibility for developmental testing shall develop guidance for the sufficiency assessments required by section 2366b(c)(1) and section 2366c(a)(4) of title 10, United States Code [now 10 U.S.C. 4252(c)(1) and 4253(a)(4)], as added by paragraphs (1) and (2). At a minimum, the guidance shall require—

"(A) for the sufficiency assessment required by section 2366b(c)(1) of such title [now 10 U.S.C. 4252(c)(1)], that the assessment address the sufficiency of—

"(i) the developmental test and evaluation plan;

"(ii) the developmental test and evaluation schedule, including a comparison to historic analogous systems;

"(iii) the developmental test and evaluation resources (facilities, personnel, test assets, data analytics tools, and modeling and simulation capabilities);

"(iv) the risks of developmental test and production concurrency; and

"(v) the developmental test criteria for entering the production phase; and

"(B) for the sufficiency assessment required by section 2366c(a)(4) of such title [now 10 U.S.C. 4253(a)(4)], that the assessment address—

"(i) the sufficiency of the developmental test and evaluation completed;

"(ii) the sufficiency of the plans and resources available for remaining developmental test and evaluation;

"(iii) the risks identified during developmental testing to the production and deployment phase;

"(iv) the sufficiency of the plans and resources for remaining developmental test and evaluation; and

"(v) the readiness of the system to perform scheduled initial operational test and evaluation."

Milestone B Decisions

Pub. L. 114–92, div. A, title VIII, §802(d)(3), Nov. 25, 2015, 129 Stat. 880, provided that: "The Chief of the Armed Force concerned shall advise the milestone decision authority for a major defense acquisition program of the Chief's views on cost, schedule, technical feasibility, and performance trade-offs that have been made with regard to the program, as provided in section 2366b(b)(3) of title 10, United States Code [now 10 U.S.C. 4252(b)(3)], as amended by section 824 of this Act, prior to a Milestone B decision on the program."

Formal Review Process for Bandwidth Requirements

Pub. L. 110–417, [div. A], title X, §1047(d), Oct. 14, 2008, 122 Stat. 4603, as amended by Pub. L. 111–84, div. A, title X, §1033, Oct. 28, 2009, 123 Stat. 2449; Pub. L. 115–232, div. A, title VIII, §813(c), Aug. 13, 2018, 132 Stat. 1851, provided that: "The Secretary of Defense and the Director of National Intelligence shall, as part of the Milestone B or Key Decision Point B approval process for any major defense acquisition program or major system acquisition program, establish a formal review process to ensure that—

"(A) the bandwidth requirements needed to support such program are or will be met; and

"(B) a determination will be made with respect to how to meet the bandwidth requirements for such program."

§4253. Major defense acquisition programs: submissions to Congress on Milestone C

(a) Brief Summary Report.—Not later than 15 days after granting Milestone C approval for a major defense acquisition program, the milestone decision authority for the program shall provide to the congressional defense committees and, in the case of intelligence or intelligence-related activities, the congressional intelligence committees a brief summary report that contains the following:

(1) The estimated cost and schedule for the program established by the military department concerned, including—

(A) the dollar values estimated for the program acquisition unit cost, average procurement unit cost, and total life-cycle cost; and

(B) the planned dates for initial operational test and evaluation and initial operational capability.

(2) The independent estimated cost for the program established pursuant to section 3221(b)(6) of this title, and any independent estimated schedule for the program, including—

(A) the dollar values estimated for the program acquisition unit cost, average procurement unit cost, and total life-cycle cost; and

(B) the planned dates for initial operational test and evaluation and initial operational capability.

(3) A summary of any production, manufacturing, and fielding risks associated with the program.

(4) An assessment of the sufficiency of the developmental test and evaluation completed, including the use of automated data analytics or modeling and simulation tools and methodologies.

(b) Additional Information.—At the request of any of the congressional defense committees or, in the case of intelligence or intelligence-related activities, the congressional intelligence committees, the milestone decision authority shall submit to the committee further information or underlying documentation for the information in a brief summary report submitted under subsection (a), including the independent cost and schedule estimates and the independent technical risk assessments referred to in that subsection.

(c) Congressional Intelligence Committees Defined.—In this section, the term "congressional intelligence committees" has the meaning given that term in section 437(c) of this title.

(Added Pub. L. 114–328, div. A, title VIII, §808(c)(1), Dec. 23, 2016, 130 Stat. 2265, §2366c; amended Pub. L. 115–91, div. A, title VIII, §838(a)(2), Dec. 12, 2017, 131 Stat. 1474; renumbered §4253 and amended Pub. L. 116–283, div. A, title XVIII, §1847(d)(3), Jan. 1, 2021, 134 Stat. 4256.)

Editorial Notes

Amendments

2021—Pub. L. 116–283 renumbered section 2366c of this title as this section and, in subsec. (a)(2), substituted "section 3221(b)(6)" for "section 2334(a)(6)" in introductory provisions. Section was inserted after section 4252 of this title, as renumbered by par. (2) of section 1847(d) of Pub. L. 116–283, to reflect the probable intent of Congress, notwithstanding language directing this section be inserted after section 4252 of this title "as transferred and redesignated by paragraph (3)" of section 1847(d).

2017—Subsec. (a)(4). Pub. L. 115–91 added par. (4).

Statutory Notes and Related Subsidiaries

Effective Date of 2021 Amendment

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 a note preceding section 3001 of this title.

Responsibility for Conducting Assessments; Guidance

For provisions designating officials responsible for conducting assessments and provisions requiring guidance for assessments under subsec. (a)(4) of this section, see section 838(a)(3), (4) of Pub. L. 115–91, set out as notes under section 4252 of this title.

SUBCHAPTER IV—ADDITIONAL PROVISIONS APPLICABLE SPECIFICALLY TO MAJOR DEFENSE ACQUISITION PROGRAMS

        

Editorial Notes

Amendments

2021—Pub. L. 117–81, div. A, title XVII, §1701(r)(1)(A), Dec. 27, 2021, 135 Stat. 2149, amended Pub. L. 116–283, div. A, title XVIII. §1847(a), Jan. 1, 2021, 134 Stat. 4253, which added this analysis, by substituting "[Reserved]" for "Acquisition-related functions of chiefs: adherence to requirements in major defense acquisition programs" in item 4274.

§4271. Program cost, fielding, and performance goals in planning major defense acquisition programs

(a) Program Cost and Fielding Targets.—(1) Before funds are obligated for technology development, systems development, or production of a major defense acquisition program, the designated milestone decision authority for the program shall ensure, by establishing the goals described in paragraph (2), that the program will—

(A) be affordable;

(B) incorporate program planning that anticipates the evolution of capabilities to meet changing threats, technology insertion, and interoperability; and

(C) be fielded when needed.

(2) The goals described in this paragraph are goals for—

(A) the procurement unit cost and sustainment cost (referred to in this section as the "program cost targets");

(B) the date for initial operational capability (referred to in this section as the "fielding target"); and

(C) technology maturation, prototyping, and a modular open system approach to evolve system capabilities and improve interoperability.

(b) Definitions.—In this section:

(1) The term "procurement unit cost" has the meaning provided in section 4351(a)(2) of this title.

(2) The term "initial capabilities document" has the meaning provided in section 4251(d)(1) of this title.

(Added Pub. L. 114–328, div. A, title VIII, §807(a)(1), Dec. 23, 2016, 130 Stat. 2260, §2448a; amended Pub. L. 115–232, div. A, title VIII, §831(a), Aug. 13, 2018, 132 Stat. 1857; renumbered §4271 and amended Pub. L. 116–283, div. A, title XVIII, §1847(e)(1), Jan. 1, 2021, 134 Stat. 4256; Pub. L. 117–81, div. A, title XVII, §1701(o)(6)(C)(iv), Dec. 27, 2021, 135 Stat. 2147.)

Editorial Notes

Amendments

2021—Pub. L. 116–283, §1847(e)(1), renumbered section 2448a of this title as the section.

Subsec. (b)(1). Pub. L. 116–283, §1847(e)(1)(A), as amended by Pub. L. 117–81, §1701(o)(6)(C)(iv), substituted "section 4351(a)(2)" for "section 2432(a)(2)".

Subsec. (b)(2). Pub. L. 116–283, §1847(e)(1)(B), substituted "section 4251(d)(1)" for "section 2366a(d)(2)".

2018—Subsec. (a)(1). Pub. L. 115–232, §831(a)(1), (2), in introductory provisions, substituted "designated milestone decision authority for the program shall ensure, by establishing the goals described in paragraph (2), that the program" for "Secretary of Defense shall ensure, by establishing the goals described in paragraph (2), that the milestone decision authority for the major defense acquisition program approves a program that".

Subsecs. (b), (c). Pub. L. 115–232, §831(a)(3), (4), redesignated subsec. (c) as (b) and struck out former subsec. (b). Prior to amendment, text of subsec. (b) read as follows: "The responsibilities of the Secretary of Defense in subsection (a) may be delegated only to the Deputy Secretary of Defense."

Statutory Notes and Related Subsidiaries

Effective Date of 2021 Amendment

Amendment by Pub. L. 117–81 applicable as if included in the enactment of title XVIII of Pub. L. 116–283 as enacted, see section 1701(a)(2) of Pub. L. 117–81, set out in a note preceding section 3001 of this title and note below.

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 a note preceding section 3001 of this title.

Effective Date

Pub. L. 114–328, div. A, title VIII, §807(a)(2), Dec. 23, 2016, 130 Stat. 2261, provided that: "[Former] Subchapter III of chapter 144B of title 10, United States Code [see 10 U.S.C. 4271, 4272], as added by paragraph (1), shall apply with respect to major defense acquisition programs that reach Milestone A after October 1, 2017."

Program Cost and Field Targets

Pub. L. 114–328, div. A, title IX, §925(b), Dec. 23, 2016, 130 Stat. 2361, as amended by Pub. L. 115–232, div. A, title VIII, §831(b)(4), Aug. 13, 2018, 132 Stat. 1857, provided that: "The Secretary of Defense shall establish a process to develop program cost and fielding targets pursuant to section 2448a of title 10, United States Code [now 10 U.S.C. 4271], that—

"(1) is co-chaired by the designated milestone decision authority for the major defense acquisition program and the Vice Chief of Staff of the armed force concerned or, in the case of a program for which an alternate milestone decision authority is designated under section 2430(d)(2) of such title [now 10 U.S.C. 4204(b)], the Vice Chairman of the Joint Chiefs of Staff;

"(2) is supported by—

"(A) the Joint Staff, to provide expertise on joint military capabilities, capability gaps, and performance requirements;

"(B) the Office of Cost Assessment and Program Evaluation, to provide expertise in resource allocation, operations research, systems analysis, and cost estimation; and

"(C) other Department of Defense organizations determined appropriate by the Secretary; and

"(3) ensures that appropriate trade-offs are made among life-cycle cost, schedule, and performance objectives and procurement quantity objectives."

Configuration Steering Boards for Cost Control Under Major Defense Acquisition Programs

Pub. L. 110–417, [div. A], title VIII, §814, Oct. 14, 2008, 122 Stat. 4528, as amended by Pub. L. 114–92, div. A, title VIII, §830, Nov. 25, 2015, 129 Stat. 912; Pub. L. 115–91, div. A, title VIII, §826, Dec. 12, 2017, 131 Stat. 1467; Pub. L. 116–92, div. A, title IX, §902(67), Dec. 20, 2019, 133 Stat. 1550, provided that:

"(a) Configuration Steering Boards.—Each Secretary of a military department shall establish one or more boards (to be known as a 'Configuration Steering Board') for the major defense acquisition programs of such department.

"(b) Composition.—

"(1) Chair.—Each Configuration Steering Board under this section shall be chaired by the service acquisition executive of the military department concerned.

"(2) Particular members.—Each Configuration Steering Board under this section shall include a representative of the following:

"(A) The Office of the Under Secretary of Defense for Research and Engineering.

"(B) The Office of the Under Secretary of Defense for Acquisition and Sustainment.

"(C) The Chief of Staff of the Armed Force concerned.

"(D) Other Armed Forces, as appropriate.

"(E) The Joint Staff.

"(F) The Comptroller of the military department concerned.

"(G) The military deputy to the service acquisition executive concerned.

"(H) The program executive officer for the major defense acquisition program concerned.

"(I) Other senior representatives of the Office of the Secretary of Defense and the military department concerned, as appropriate.

"(c) Responsibilities.—

"(1) In general.—The Configuration Steering Board for a major defense acquisition program under this section shall be responsible for the following:

"(A) Monitoring changes in program requirements and ensuring the Chief of Staff of the Armed Force concerned, in consultation with the Secretary of the military department concerned, approves of any proposed changes that could have an adverse effect on program cost or schedule.

"(B) Preventing unnecessary changes to program requirements and system configuration that could have an adverse impact on program cost or schedule.

"(C) Mitigating the adverse cost and schedule impact of any changes to program requirements or system configuration that may be required.

"(D) Ensuring that the program delivers as much planned capability as possible, at or below the relevant program baseline.

"(2) Discharge of responsibilities.—In discharging its responsibilities under this section with respect to a major defense acquisition program, a Configuration Steering Board shall—

"(A) review and approve or disapprove any proposed changes to program requirements or system configuration that have the potential to adversely impact program cost or schedule; and

"(B) review and recommend proposals to reduce program requirements that have the potential to improve program cost or schedule in a manner consistent with program objectives.

"(3) Presentation of recommendations on reduction in requirements.—Any recommendation for a proposed reduction in requirements that is made by a Configuration Steering Board under paragraph (2)(B) shall be presented to appropriate organizations of the Joint Staff and the military departments responsible for such requirements for review and approval in accordance with applicable procedures.

"(4) Annual consideration of each major defense acquisition program.—

"(A) Annual meeting.—Except as provided in subparagraph (B), the Secretary of the military department concerned shall ensure that a Configuration Steering Board under this section meets to consider each major defense acquisition program of such military department at least once each year.

"(B) Exception.—If the service acquisition executive of the military department concerned determines, in writing, that there have been no changes to the program requirements of a major defense acquisition program during the preceding year, the Configuration Steering Board for such major defense acquisition program is not required to meet as described in subparagraph (A).

"(5) Certification of cost and schedule deviations during system design and development.—For a major defense acquisition program that received an initial Milestone B approval during fiscal year 2008, a Configuration Steering Board may not approve any proposed alteration to program requirements or system configuration if such an alteration would—

"(A) increase the cost (including any increase for expected inflation or currency exchange rates) for system development and demonstration by more than 25 percent; or

"(B) extend the schedule for key events by more than 15 percent of the total number of months between the award of the system development and demonstration contract and the scheduled Milestone C approval date,

unless the Under Secretary of Defense for Research and Engineering and the Under Secretary of Defense for Acquisition and Sustainment jointly certify to the congressional defense committees [Committees on Armed Services and Appropriations of the Senate and the House of Representatives], and include in the certification supporting rationale, that approving such alteration to program requirements or system configuration is in the best interest of the Department of Defense despite the cost and schedule impacts to system development and demonstration of such program.

"(d) Applicability.—

"(1) In general.—The requirements of this section shall apply with respect to any major defense acquisition program that is commenced before, on, or after the date of the enactment of this Act [Oct. 14, 2008].

"(2) Current programs.—In the case of any major defense acquisition program that is ongoing as of the date of the enactment of this Act, a Configuration Steering Board under this section shall be established for such program not later than 60 days after the date of the enactment of this Act.

"(e) Guidance on Authorities of Program Managers After Milestone B.—

"(1) [Amended section 853(d)(2) of Pub. L. 109–364, formerly set out as a note under section 2430 of this title.]

"(2) Applicability.—The Secretary of Defense shall modify the guidance described in section 853(d) of the John Warner National Defense Authorization Act for Fiscal Year 2007 [Pub. L. 109–364, formerly set out as a note under section 2430 of this title] in order to take into account the amendment made by paragraph (1) not later than 60 days after the date of the enactment of this Act [Oct. 14, 2008].

"(f) Major Defense Acquisition Program Defined.—In this section, the term 'major defense acquisition program' has the meaning given that term in section 2430(a) of title 10, United States Code [now 10 U.S.C. 4201]."

§4272. Independent technical risk assessments

(a) In General.—With respect to a major defense acquisition program, the Secretary of Defense shall conduct or approve independent technical risk assessments before any decision to grant Milestone B approval for the program pursuant to section 4252 of this title, any decision to enter into low-rate initial production or full-rate production, or at any other time considered appropriate by the Secretary, that includes the identification of any critical technologies or manufacturing processes that have not been successfully demonstrated in a relevant environment.

(b) Guidance.—The Secretary shall issue guidance and a framework for the conduct, execution, and approval of independent technical risk assessments.

(Added Pub. L. 114–328, div. A, title VIII, §807(a)(1), Dec. 23, 2016, 130 Stat. 2261, §2448b; amended Pub. L. 116–92, div. A, title IX, §902(73), Dec. 20, 2019, 133 Stat. 1552; renumbered §4272 and amended Pub. L. 116–283, div. A, title XVIII, §1847(e)(2), Jan. 1, 2021, 134 Stat. 4256; Pub. L. 118–159, div. A, title VIII, §806(b)(1), Dec. 23, 2024, 138 Stat. 1974.)

Editorial Notes

Amendments

2024—Subsec. (a). Pub. L. 118–159 struck out dash after "risk assessments" and par. (2) designation before "before any decision" and struck out par. (1) which read as follows: "before any decision to grant Milestone A approval for the program pursuant to section 4251 of this title, that identifies critical technologies and manufacturing processes that need to be matured; and".

2021—Pub. L. 116–283, §1847(e)(2), renumbered section 2448b of this title as this section.

Subsec. (a)(1). Pub. L. 116–283, §1847(e)(2)(A), substituted "section 4251" for "section 2366a".

Subsec. (a)(2). Pub. L. 116–283, §1847(e)(2)(B), substituted "section 4252" for "section 2366b".

2019—Pub. L. 116–92 added subsecs. (a) and (b) and struck out former subsecs. (a) and (b) which read as follows:

"(a) In General.—With respect to a major defense acquisition program, the Secretary of Defense shall ensure that an independent technical risk assessment is conducted—

"(1) before any decision to grant Milestone A approval for the program pursuant to section 2366a of this title, that identifies critical technologies and manufacturing processes that need to be matured; and

"(2) before any decision to grant Milestone B approval for the program pursuant to section 2366b of this title, any decision to enter into low-rate initial production or full-rate production, or at any other time considered appropriate by the Secretary, that includes the identification of any critical technologies or manufacturing processes that have not been successfully demonstrated in a relevant environment.

"(b) Categorization of Technical Risk Levels.—The Secretary shall issue guidance and a framework for categorizing the degree of technical and manufacturing risk in a major defense acquisition program."

Statutory Notes and Related Subsidiaries

Effective Date of 2021 Amendment

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 a note preceding section 3001 of this title.

Effective Date

Section applicable with respect to major defense acquisition programs that reach Milestone A after Oct. 1, 2017, see section 807(a)(2) of Pub. L. 114–328, set out as a note under section 4271 of this title.

§4273. Performance assessments and root cause analyses

(a) Designation of Senior Official Responsibility for Performance Assessments and Root Cause Analyses.—

(1) In general.—The Secretary of Defense shall designate a senior official in the Office of the Secretary of Defense as the principal official of the Department of Defense responsible for conducting and overseeing performance assessments and root cause analyses for major defense acquisition programs.

(2) No program execution responsibility.—The Secretary shall ensure that the senior official designated under paragraph (1) is not responsible for program execution.

(3) Staff and resources.—The Secretary shall assign to the senior official designated under paragraph (1) appropriate staff and resources necessary to carry out the senior official's function under this section.

(b) Responsibilities.—The senior official designated under subsection (a) shall be responsible for the following:

(1) Carrying out performance assessments of major defense acquisition programs in accordance with the requirements of subsection (c) periodically or when requested by the Secretary of Defense, the Under Secretary of Defense for Acquisition and Sustainment, the Secretary of a military department, or the head of a Defense Agency.

(2) Conducting root cause analyses for major defense acquisition programs in accordance with the requirements of subsection (d) when required by section 4376(a)(1) of this title, or when requested by the Secretary of Defense, the Under Secretary of Defense for Acquisition and Sustainment, the Secretary of a military department, or the head of a Defense Agency.

(3) Issuing policies, procedures, and guidance governing the conduct of performance assessments and root cause analyses by the military departments and the Defense Agencies.

(4) Evaluating the utility of performance metrics used to measure the cost, schedule, and performance of major defense acquisition programs, and making such recommendations to the Secretary of Defense as the official considers appropriate to improve such metrics.

(5) Advising acquisition officials on performance issues regarding a major defense acquisition program that may arise—

(A) before certification under sections 4376 and 4377 of this title;

(B) before entry into full-rate production; or

(C) in the course of consideration of any decision to request authorization of a multiyear procurement contract for the program.

(c) Performance Assessments.—For purposes of this section, a performance assessment with respect to a major defense acquisition program is an evaluation of the following:

(1) The cost, schedule, and performance of the program, relative to current metrics, including performance requirements and baseline descriptions.

(2) The extent to which the level of program cost, schedule, and performance predicted relative to such metrics is likely to result in the timely delivery of a level of capability to the warfighter that is consistent with the level of resources to be expended and provides superior value to alternative approaches that may be available to meet the same military requirement.

(d) Root Cause Analyses.—For purposes of this section and sections 4376 and 4377 of this title, a root cause analysis with respect to a major defense acquisition program is an assessment of the underlying cause or causes of shortcomings in cost, schedule, or performance of the program, including the role, if any, of—

(1) unrealistic performance expectations;

(2) unrealistic baseline estimates for cost or schedule;

(3) immature technologies or excessive manufacturing or integration risk;

(4) unanticipated design, engineering, manufacturing, or technology integration issues arising during program performance;

(5) changes in procurement quantities;

(6) inadequate program funding or funding instability;

(7) poor performance by government or contractor personnel responsible for program management; or

(8) any other matters.

(e) Support of Applicable Capabilities and Expertise.—The Secretary of Defense shall ensure that the senior official designated under subsection (a) has the support of other Department of Defense officials with relevant capabilities and expertise needed to carry out the requirements of this section.

(Added and amended Pub. L. 111–383, div. A, title IX, §901(d), (k)(1)(F), Jan. 7, 2011, 124 Stat. 4321, 4325, §2438; Pub. L. 112–239, div. A, title X, §1076(f)(27), Jan. 2, 2013, 126 Stat. 1953; Pub. L. 114–92, div. A, title X, §1077(b), Nov. 25, 2015, 129 Stat. 998; Pub. L. 116–92, div. A, title IX, §902(72), Dec. 20, 2019, 133 Stat. 1551; renumbered §4273 and amended Pub. L. 116–283, div. A, title XVIII, §1847(e)(3), Jan. 1, 2021, 134 Stat. 4256; Pub. L. 117–81, div. A, title XVII, §1701(b)(16)(B), Dec. 27, 2021, 135 Stat. 2134; Pub. L. 118–31, div. A, title XVIII, §1801(a)(34), Dec. 22, 2023, 137 Stat. 685; Pub. L. 118–159, div. A, title XVII, §1701(a)(44), Dec. 23, 2024, 138 Stat. 2206.)

Editorial Notes

Codification

Section 103 of Pub. L. 111–23, formerly set out as a note under section 2430 of this title, which was transferred to chapter 144 of this title, renumbered as section 2438, and amended by Pub. L. 111–383, §901(d), (k)(1)(F), and subsequently renumbered as this section and amended by Pub. L. 116–283, §1847(e)(3), was based on Pub. L. 111–23, title I, §103, May 22, 2009, 123 Stat. 1715.

Amendments

2024—Subsec. (d). Pub. L. 118–159 substituted "4376" for "4736".

2023—Subsec. (b)(5)(A). Pub. L. 118–31 substituted "sections 4376" for "sections 4736".

2021—Pub. L. 116–283, §1847(e)(3), renumbered section 2438 of this title as this section.

Subsec. (b)(2). Pub. L. 116–283, §1847(e)(3)(A), as amended by Pub. L. 117–81, §1701(b)(16)(B), substituted "section 4376(a)(1)" for "section 2433a(a)(1)".

Subsec. (b)(5)(A). Pub. L. 116–283, §1847(e)(3)(B), substituted "sections 4736 and 4377" for "section 2433a".

Subsec. (d). Pub. L. 116–283, §1847(e)(3)(B), substituted "sections 4736 and 4377" for "section 2433a" in introductory provisions.

2019—Subsec. (b)(1), (2). Pub. L. 116–92 substituted "Under Secretary of Defense for Acquisition and Sustainment" for "Under Secretary of Defense for Acquisition, Technology and Logistics".

2015—Subsec. (f). Pub. L. 114–92 struck out subsec. (f) which related to annual report.

2013—Subsec. (a)(3). Pub. L. 112–239 inserted "the senior" before "official's".

2011—Pub. L. 111–383, §901(k)(1)(F), substituted "Performance assessments and root cause analyses" for "performance assessments and root cause analyses for major defense acquisition programs" in section catchline.

Pub. L. 111–383, §901(d), transferred section 103 of Pub. L. 111–23 to this chapter and renumbered it as this section. See Codification note above.

Subsec. (b)(2). Pub. L. 111–383, §901(d)(1), substituted "section 2433a(a)(1) of this title" for "section 2433a(a)(1) of title 10, United States Code (as added by section 206(a) of this Act)".

Subsec. (b)(5)(A). Pub. L. 111–383, §901(d)(2), substituted "before" for "prior to" and "section 2433a of this title" for "section 2433a of title 10, United States Code (as so added)".

Subsec. (b)(5)(B). Pub. L. 111–383, §901(d)(2)(B), substituted "before" for "prior to".

Subsec. (d). Pub. L. 111–383, §901(d)(3), substituted "section 2433a of this title" for "section 2433a of title 10, United States Code (as so added)" in introductory provisions.

Subsec. (f). Pub. L. 111–383, §901(d)(4), struck out "beginning in 2010," after "each year,".

Statutory Notes and Related Subsidiaries

Effective Date of 2021 Amendment

Amendment by Pub. L. 117–81 applicable as if included in the enactment of title XVIII of Pub. L. 116–283 as enacted, see section 1701(a)(2) of Pub. L. 117–81, set out in a note preceding section 3001 of this title and note below.

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 a note preceding section 3001 of this title.

Effective Date

Amendment by Pub. L. 111–383 effective Jan. 1, 2011, see section 901(p) of Pub. L. 111–383, set out as an Effective Date of 2011 Amendment note under section 131 of this title.

[§4274. Omitted]

Editorial Notes

Codification

Pub. L. 116–283, div. A, title XVIII, §1847(e)(4), (5), Jan. 1, 2021, 134 Stat. 4256, 4257, enacted this section, transferred subsec. (b) of section 2547 of this title to this section, and made additional amendments, which were all to become effective Jan. 1, 2022. Subsequently, Pub. L. 117–81, div. A, title XVII, §1701(r)(1)(B), Dec. 27, 2021, 135 Stat. 2149, repealed section 1847(e)(4), (5) of Pub. L. 116–283, effective as if included therein, thereby omitting this section and eliminating the amendments before they took effect.

SUBCHAPTER V—CONTRACTORS

        

Statutory Notes and Related Subsidiaries

Program for Distribution Support and Services for Contractors

Pub. L. 114–328, div. A, title VIII, §883, Dec. 23, 2016, 130 Stat. 2316, as amended by Pub. L. 117–263, div. A, title VIII, §819, Dec. 23, 2022, 136 Stat. 2709; Pub. L. 118–31, div. A, title VIII, §855, Dec. 22, 2023, 137 Stat. 345; Pub. L. 118–159, div. A, title VIII, §862, Dec. 23, 2024, 138 Stat. 2000, provided that:

"(a) Authority.—The Secretary of Defense may carry out a program under which the Secretary may make available storage and distribution services support to a contractor in support of the performance by the contractor of a contract entered into by the Department of Defense.

"(b) Support Contracts.—Any storage and distribution services to be provided under the program under this section to a contractor in support of the performance of a contract described in subsection (a) shall be provided under a separate contract that is entered into by the Director of the Defense Logistics Agency with that contractor. The requirements of section 2208(h) of title 10, United States Code, and the regulations prescribed pursuant to such section shall apply to any such separate support contract between the Director of the Defense Logistics Agency and the contractor.

"(c) Scope of Support and Services.—The storage and distribution support services that may be provided under this section in support of the performance of a contract entered into by the Department include storage and distribution of materiel and repair parts necessary for the performance of that contract.

"(d) Regulations.—Before exercising the authority under the program under this section, the Secretary of Defense shall prescribe in regulations such requirements, conditions, and restrictions as the Secretary determines appropriate to ensure that storage and distribution services are provided under the program only when it is in the best interests of the United States to do so. The regulations shall include, at a minimum, the following:

"(1) A requirement to notify a contractor or potential contractor for which storage and distribution services are to be made available under the program, including—

"(A) a statement that the storage and distribution services are to be made available under the authority of the program under this section on a basis that does not require acceptance of the support and services; and

"(B) a description of the range of the storage and distribution services that are available to the contractor.

"(2) A requirement for the rates charged a contractor for storage and distribution services provided to a contractor under the program to reflect the full cost to the United States of the resources used in providing the support and services, including the costs of resources used, but not paid for, by the Department of Defense.

"(3) With respect to a contract described in subsection (a) that is being performed for a department or agency outside the Department of Defense, a prohibition, in accordance with applicable contracting procedures, on the imposition of any charge on that department or agency for any effort of Department of Defense personnel or the contractor to correct deficiencies in the performance of such contract.

"(4) A prohibition on the imposition of any charge on a contractor for any effort of the contractor to correct a deficiency in the performance of storage and distribution services provided to the contractor under this section.

"(5) A requirement that storage and distribution services provided under the program may not interfere with the mission of the Defense Logistics Agency or of any military department involved with the program.

"(6) A requirement that any support contract for storage and distribution services entered into under the program shall include a requirement that any failure by the contractor to perform the primary contract is not excusable based on use of the support contract, and the contractor is to remain responsible for performance of the primary contract.

"(e) Relationship to Treaty Obligations.—The Secretary shall ensure that the exercise of authority under the program under this section does not conflict with any obligation of the United States under any treaty or other international agreement.

"(f) Briefings.—Not later than April 1, 2025, and annually thereafter for five years, the Director of the Defense Logistics Agency, in consultation with the Comptroller General, shall submit to the Committees on Armed Services of the Senate and House of Representatives a briefing and report describing—

"(1) the cost effectiveness for both the Government and industry of the program;

"(2) how support contracts under the program affected meeting the requirements of primary contracts; and

"(3) the number of and location of existing contracts."

Nontraditional and Small Contractor Innovation Prototyping Program

Pub. L. 114–328, div. A, title VIII, §884, Dec. 23, 2016, 130 Stat. 2318, as amended by Pub. L. 115–91, div. A, title VIII, §865, Dec. 12, 2017, 131 Stat. 1495; Pub. L. 116–283, div. A, title XVIII, §1806(e)(3)(D), Jan. 1, 2021, 134 Stat. 4156; Pub. L. 118–159, div. A, title VIII, §804(c)(8), Dec. 23, 2024, 138 Stat. 1969, provided that:

"(a) In General.—The Secretary of Defense shall conduct a pilot program for nontraditional defense contractors and small business concerns to design, develop, and demonstrate innovative prototype military platforms of significant scope for the purpose of demonstrating new capabilities that could provide alternatives to existing acquisition programs and assets. The Secretary shall establish the pilot program within the Departments of the Army, Navy, and Air Force, the Missile Defense Agency, and the United States Special Operations Command.

"(b) Funding.—There is authorized to be made available $250,000,000 from the Rapid Prototyping Fund established under [former] section 804(d) of the National Defense Authorization Act for Fiscal Year 2016 (Public Law 114–92; 10 U.S.C. 2302 note [former 10 U.S.C. 3201 note prec.]) to carry out the pilot program.

"(c) Plan.—

"(1) In general.—The Secretary of Defense shall submit to the congressional defense committees [Committees on Armed Services and Appropriations of the Senate and the House of Representatives], concurrent with the budget for the Department of Defense for fiscal year 2018, as submitted to Congress pursuant to section 1105 of title 31, United States Code, a plan to fund and carry out the pilot program in future years.

"(2) Elements.—The plan submitted under paragraph (1) shall consider maximizing use of—

"(A) broad agency announcements or other merit-based selection procedures;

"(B) the Department of Defense Acquisition Challenge Program authorized under section 2359b of title 10, United States Code [now 10 U.S.C. 4062];

"(C) the foreign comparative test program;

"(D) projects carried out under the Rapid Innovation Program of the Department of Defense or pursuant to a Phase III agreement (as defined in section 9(r)(2) of the Small Business Act (15 U.S.C. 638(r)(2))); and

"(E) streamlined procedures for acquisition provided under section 3602 of title 10, United States Code[,] and procedures for alternative acquisition pathways established under section 805 of such Act (10 U.S.C. 2302 note [now 10 U.S.C. 3201 note prec.]).

"(d) Programs To Be Included.—As part of the pilot program, the Secretary of Defense shall allocate up to $50,000,000 on a fixed price contractual basis for fiscal year 2017 or pursuant to the plan submitted under subsection (c) for demonstrations of the following capabilities:

"(1) Swarming of multiple unmanned air vehicles.

"(2) Unmanned, modular fixed-wing aircraft that can be rapidly adapted to multiple missions and serve as a fifth generation weapons augmentation platform.

"(3) Vertical takeoff and landing tiltrotor aircraft.

"(4) Integration of a directed energy weapon on an air, sea, or ground platform.

"(5) Swarming of multiple unmanned underwater vehicles.

"(6) Commercial small synthetic aperture radar (SAR) satellites with on-board machine learning for automated, real-time feature extraction and predictive analytics.

"(7) Active protection system to defend against rocket-propelled grenades and anti-tank missiles.

"(8) Defense against hypersonic weapons, including sensors.

"(9) Unmanned ground logistics and unmanned air logistics capabilities enhancement.

"(10) Other systems as designated by the Secretary.

"(e) Definitions.—In this section:

"(1) Nontraditional defense contractor.—The term 'nontraditional defense contractor' has the meaning given the term in section 3014 of title 10, United States Code.

"(2) Small business concern.—The term 'small business concern' has the meaning given the term in section 3 of the Small Business Act (15 U.S.C. 632).

"(f) Sunset.—The authority under this section expires at the close of September 30, 2026."

Organizational Conflicts of Interest in Major Defense Acquisition Programs

Pub. L. 111–23, title II, §207(a)–(c), May 22, 2009, 123 Stat. 1728, 1729, directed the Secretary of Defense to revise, not later than 270 days after May 22, 2009, the Defense Supplement to the Federal Acquisition Regulation to provide uniform guidance and tighten existing requirements for organizational conflicts of interest by contractors in major defense acquisition programs and directed the Panel on Contracting Integrity established pursuant to former section 813 of Pub. L. 109–364 (former 10 U.S.C. 2304 note) to present recommendations on measures to eliminate or mitigate organizational conflicts of interest in major defense acquisition programs.

§4292. Contracts: limitations on lead system integrators

(a) In General.—Except as provided in subsection (b), no entity performing lead system integrator functions in the acquisition of a major system by the Department of Defense may have any direct financial interest in the development or construction of any individual system or element of any system of systems.

(b) Exception.—An entity described in subsection (a) may have a direct financial interest in the development or construction of an individual system or element of a system of systems if—

(1) the Secretary of Defense certifies to the Committees on Armed Services of the Senate and the House of Representatives that—

(A) the entity was selected by the Department of Defense as a contractor to develop or construct the system or element concerned through the use of competitive procedures; and

(B) the Department took appropriate steps to prevent any organizational conflict of interest in the selection process; or

(2) the entity was selected by a subcontractor to serve as a lower-tier subcontractor, through a process over which the entity exercised no control.

(c) Construction.—Nothing in this section shall be construed to preclude an entity described in subsection (a) from performing work necessary to integrate two or more individual systems or elements of a system of systems with each other.

(Added Pub. L. 109–364, div. A, title VIII, §807(a)(1), Oct. 17, 2006, 120 Stat. 2315, §2410p; renumbered §4292, Pub. L. 116–283, div. A, title XVIII, §1847(f)(1), Jan. 1, 2021, 134 Stat. 4258.)

Editorial Notes

Amendments

2021—Pub. L. 116–283 renumbered section 2410p of this title as this section.

Statutory Notes and Related Subsidiaries

Effective Date of 2021 Amendment

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 a note preceding section 3001 of this title.

Effective Date

Pub. L. 109–364, div. A, title VIII, §807(a)(3), Oct. 17, 2006, 120 Stat. 2316, provided that: "Section 2410p of title 10, United States Code [now 10 U.S.C. 4292], as added by paragraph (1), shall apply with respect to contracts entered into after December 31, 2006."

Prohibition on New Lead Systems Integrators

Pub. L. 110–181, div. A, title VIII, §802, Jan. 28, 2008, 122 Stat. 206, as amended by Pub. L. 110–417, [div. A], title I, §112, Oct. 14, 2008, 122 Stat. 4374; Pub. L. 116–92, div. A, title IX, §902(100), Dec. 20, 2019, 133 Stat. 1555, provided that:

"(a) Prohibitions on the Use of Lead Systems Integrators.—

"(1) Prohibition on new lead systems integrators.—Effective October 1, 2010, the Department of Defense may not award a new contract for lead systems integrator functions in the acquisition of a major system to any entity that was not performing lead systems integrator functions in the acquisition of the major system prior to the date of the enactment of this Act [Jan. 28, 2008].

"(2) Prohibition on lead systems integrators beyond low-rate initial production.—Effective on the date of the enactment of this Act, the Department of Defense may award a new contract for lead systems integrator functions in the acquisition of a major system only if—

"(A) the major system has not yet proceeded beyond low-rate initial production; or

"(B) the Secretary of Defense determines in writing that it would not be practicable to carry out the acquisition without continuing to use a contractor to perform lead systems integrator functions and that doing so is in the best interest of the Department.

"(3) Requirements relating to determinations.—A determination under paragraph (2)(B)—

"(A) shall specify the reasons why it would not be practicable to carry out the acquisition without continuing to use a contractor to perform lead systems integrator functions (including a discussion of alternatives, such as the use of the Department of Defense workforce, or a system engineering and technical assistance contractor);

"(B) shall include a plan for phasing out the use of contracted lead systems integrator functions over the shortest period of time consistent with the interest of the national defense;

"(C) may not be delegated below the level of the Under Secretary of Defense for Acquisition and Sustainment; and

"(D) shall be provided to the Committees on Armed Services of the Senate and the House of Representatives at least 45 days before the award of a contract pursuant to the determination.

"(b) Acquisition Workforce.—

"(1) Requirement.—The Secretary of Defense shall ensure that the acquisition workforce is of the appropriate size and skill level necessary—

"(A) to accomplish inherently governmental functions related to acquisition of major systems; and

"(B) to effectuate the purpose of subsection (a) to minimize and eventually eliminate the use of contractors to perform lead systems integrator functions.

"(2) Report.—The Secretary shall include an update on the progress made in complying with paragraph (1) in the annual report required by section 820 of the John Warner National Defense Authorization Act for Fiscal Year 2007 (Public Law 109–364; 120 Stat. 2330) [former 10 U.S.C. 1701 note].

"(c) Exception for Contracts for Other Management Services.—The Department of Defense may continue to award contracts for the procurement of services the primary purpose of which is to perform acquisition support functions with respect to the development or production of a major system, if the following conditions are met with respect to each such contract:

"(1) The contract prohibits the contractor from performing inherently governmental functions.

"(2) The Department of Defense organization responsible for the development or production of the major system ensures that Federal employees are responsible for—

"(A) determining courses of action to be taken in the best interest of the government; and

"(B) determining best technical performance for the warfighter.

"(3) The contract requires that the prime contractor for the contract may not advise or recommend the award of a contract or subcontract for the development or production of the major system to an entity owned in whole or in part by the prime contractor.

"(d) Definitions.—In this section:

"(1) Lead systems integrator.—The term 'lead systems integrator' means—

"(A) a prime contractor for the development or production of a major system, if the prime contractor is not expected at the time of award to perform a substantial portion of the work on the system and the major subsystems; or

"(B) a prime contractor under a contract for the procurement of services the primary purpose of which is to perform acquisition functions closely associated with inherently governmental functions with respect to the development or production of a major system.

"(2) Major system.—The term 'major system' has the meaning given such term in section 2302d of title 10, United States Code [now 10 U.S.C. 3041].

"(3) Low-rate initial production.—The term 'low-rate initial production' has the meaning given such term in section 2400 of title 10, United States Code [now 10 U.S.C. 4231].

"(e) Status of Future Combat Systems Program Lead System Integrator.—

"(1) Lead systems integrator.—In the case of the Future Combat Systems program, the prime contractor of the program shall be considered to be a lead systems integrator until 45 days after the Secretary of the Army certifies in writing to the congressional defense committees [Committees on Armed Services and Appropriations of the Senate and the House of Representatives] that such contractor is no longer serving as the lead systems integrator.

"(2) New contracts.—In applying subsection (a)(1) or (a)(2), any modification to the existing contract for the Future Combat Systems program, for the purpose of entering into full-rate production of major systems or subsystems, shall be considered a new contract."

§4293. Major defense acquisition programs: incentive program for contractors to purchase capital assets manufactured in United States

(a) Establishment of Incentive Program.—The Secretary of Defense shall plan and establish an incentive program in accordance with this section for contractors to purchase capital assets manufactured in the United States in part with funds available to the Department of Defense.

(b) Defense Industrial Capabilities Fund May Be Used.—The Secretary of Defense may use the Defense Industrial Capabilities Fund, established under section 814 of the National Defense Authorization Act for Fiscal Year 2004, for incentive payments under the program established under this section.

(c) Applicability to Major Defense Acquisition Program Contracts.—The incentive program shall apply to contracts for the procurement of a major defense acquisition program.

(d) Consideration.—The Secretary of Defense shall provide consideration in source selection in any request for proposals for a major defense acquisition program for offerors with eligible capital assets.

(Added Pub. L. 108–136, div. A, title VIII, §822(a)(1), Nov. 24, 2003, 117 Stat. 1546, §2436; renumbered §4293, Pub. L. 116–283, div. A, title XVIII, §1847(f)(2), Jan. 1, 2021, 134 Stat. 4258.)

Editorial Notes

References in Text

Section 814 of the National Defense Authorization Act for Fiscal Year 2004, referred to in subsec. (b), is section 814 of Pub. L. 108–136, which is set out in a note under section 4811 of this title.

Prior Provisions

Prior sections 4301 to 4303 and 4306 were renumbered sections 7401 to 7403 and 7406 of this title, respectively.

Prior sections 4307 and 4308 were repealed by Pub. L. 104–106, div. A, title XVI, §1624(a)(1), (c) Feb. 10, 1996, 110 Stat. 522, effective on the earlier of the date on which the Secretary of the Army submits a certification in accordance with section 5523 of former Title 36, Patriotic Societies and Observances, or Oct. 1, 1996.

Section 4307, act Aug. 10, 1956, ch. 1041, 70A Stat. 235, permitted President to detail commissioned officer of the Army or of the Marine Corps as director of civilian marksmanship.

Section 4308, acts Aug. 10, 1956, ch. 1041, 70A Stat. 236; Nov. 14, 1986, Pub. L. 99–661, div. A, title III, §318(a), 100 Stat. 3855; Nov. 5, 1990, Pub. L. 101–510, div. A, title III, §328(b)–(d), (g)(1), 104 Stat. 1533, 1534; Oct. 23, 1992, Pub. L. 102–484, div. A, title III, §380(a)(1), 106 Stat. 2389; Nov. 30, 1993, Pub. L. 103–160, div. A, title III, §372, 107 Stat. 1635, related to authority of Secretary of the Army to promote civilian marksmanship. See section 40701 et seq. of Title 36, Patriotic and National Observances, Ceremonies, and Organizations.

A prior section 4309 was renumbered section 7409 of this title.

Prior sections 4310 and 4311 were repealed by Pub. L. 104–106, div. A, title XVI, §1624(a)(1), (c), Feb. 10, 1996, 110 Stat. 522, effective on the earlier of the date on which the Secretary of the Army submits a certification in accordance with section 5523 of former Title 36, Patriotic Societies and Observances, or Oct. 1, 1996.

Section 4310, act Aug. 10, 1956, ch. 1041, 70A Stat. 236, permitted President and Secretary of the Army to detail members of Army as rifle instructors for civilians.

Section 4311, acts Aug. 10, 1956, ch. 1041, 70A Stat. 237; Nov. 5, 1990, Pub. L. 101–510, div. A, title III, §328(f), 104 Stat. 1534, permitted Secretary of the Army to provide for issue of military rifles and sale of ammunition for use in rifle instruction for civilians.

Prior sections 4312 and 4313 were repealed by Pub. L. 105–225, §6(b), Aug. 12, 1998, 112 Stat. 1499.

Section 4312, act Aug. 10, 1956, ch. 1041, 70A Stat. 237, related to National rifle and pistol matches and small-arms firing school.

Section 4313, act Aug. 10, 1956, ch. 1041, 70A Stat. 237; Pub. L. 99–145, title XIII, §1301(b)(3)(B), Nov. 8, 1985, 99 Stat. 735; Pub. L. 99–661, div. A, title III, §318(b), Nov. 14, 1986, 100 Stat. 3855; Pub. L. 101–510, div. A, title III, §328(a), Nov. 5, 1990, 104 Stat. 1533; Pub. L. 102–484, div. A, title III, §380(c)(1), Oct. 23, 1992, 106 Stat. 2391; Pub. L. 103–35, title II, §201(g)(10)(A), May 31, 1993, 107 Stat. 100; Pub. L. 104–106, div. A, title XVI, §1624(b)(1), Feb. 10, 1996, 110 Stat. 522, related to expenses of National Matches and small-arms school.

Prior sections 4314 and 4315 were renumbered sections 7414 and 7415 of this title, respectively.

A prior section 4316, added Pub. L. 102–484, div. A, title III, §380(d)(1), Oct. 23, 1992, 106 Stat. 2391; amended Pub. L. 104–106, div. A, title XVI, §1624(b)(2), Feb. 10, 1996, 110 Stat. 522, related to reporting requirements of the Secretary of the Army, prior to repeal by Pub. L. 115–91, div. A, title X, §1051(a)(27)(A), Dec. 12, 2017, 131 Stat. 1562.

Prior sections 4317 to 4320 were renumbered sections 7417 to 7420 of this title, respectively.

Amendments

2021—Pub. L. 116–283 renumbered section 2436 of this title as this section.

Statutory Notes and Related Subsidiaries

Effective Date of 2021 Amendment

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 a note preceding section 3001 of this title.

Effective Date

Pub. L. 108–136, div. A, title VIII, §822(c), Nov. 24, 2003, 117 Stat. 1547, provided that: "Section 2436 of title 10, United States Code [now 10 U.S.C. 4293], as added by subsection (a), shall apply with respect to contracts entered into after the expiration of the 18-month period beginning on the date of the enactment of this Act [Nov. 24, 2003]."

Regulations

Pub. L. 108–136, div. A, title VIII, §822(b), Nov. 24, 2003, 117 Stat. 1547, provided that:

"(1) The Secretary of Defense shall prescribe regulations as necessary to carry out section 2436 of title 10, United States Code [now 10 U.S.C. 4293], as added by this section.

"(2) The Secretary may prescribe interim regulations as necessary to carry out such section. For this purpose, the Secretary is excepted from compliance with the notice and comment requirements of section 553 of title 5, United States Code. All interim rules prescribed under the authority of this paragraph that are not earlier superseded by final rules shall expire no later than 270 days after the effective date of section 2436 of title 10, United States Code [now 10 U.S.C. 4293] [see Effective Date note above], as added by this section."

CHAPTER 323—LIFE-CYCLE AND SUSTAINMENT

        

Editorial Notes

Prior Provisions

A prior chapter 323 "INNOVATION", consisting of reserved section 4301, was repealed by Pub. L. 116–283, div. A, title XVIII, §1841(a)(1)(A), Jan. 1, 2021, 134 Stat. 4242.

Amendments

2021—Pub. L. 117–81, div. A, title XVII, §1701(f)(9), Dec. 27, 2021, 135 Stat. 2140, added item 4324 and struck out former item 4324 "Major systems: life-cycle management and product support".

Statutory Notes and Related Subsidiaries

Standardized Policy Guidance for Calculating Aircraft Operation and Sustainment Costs

Pub. L. 116–92, div. A, title XVII, §1747, Dec. 20, 2019, 133 Stat. 1847, provided that: "Not later than 270 days after the date of the enactment of this Act [Dec. 20, 2019], the Under Secretary of Defense for Acquisition and Sustainment, in coordination with the Director of Cost Analysis and Program Evaluation and in consultation with the Secretary of each of the military services, shall develop and implement standardized policy guidance for calculating aircraft operation and sustainment costs for the Department of Defense. Such guidance shall provide for a standardized calculation of—

"(1) aircraft cost per flying hour;

"(2) aircraft cost per aircraft tail per year;

"(3) total cost of ownership per flying hour for aircraft systems;

"(4) average annual operation and sustainment cost per aircraft; and

"(5) any other cost metrics the Under Secretary of Defense determines appropriate."

Requirements Prior to Low-Rate Initial Production

Pub. L. 112–81, div. A, title VIII, §801(c), Dec. 31, 2011, 125 Stat. 1483, as amended by Pub. L. 112–239, div. A, title III, §322(e)(3), Jan. 2, 2013, 126 Stat. 1695, provided that: "Prior to entering into a contract for low-rate initial production of a major defense acquisition program, the Secretary of Defense shall ensure that the detailed requirements for core logistics capabilities and the associated sustaining workloads required to support such requirements, have been defined."

Acquisition Strategies To Ensure Competition Throughout the Lifecycle of Major Defense Acquisition Programs

Pub. L. 111–23, title II, §202, May 22, 2009, 123 Stat. 1720, as amended by Pub. L. 112–81, div. A, title VIII, §837, Dec. 31, 2011, 125 Stat. 1509; Pub. L. 112–239, div. A, title VIII, §825, Jan. 2, 2013, 126 Stat. 1833, provided that:

"(a) Acquisition Strategies To Ensure Competition.—The Secretary of Defense shall ensure that the acquisition strategy for each major defense acquisition program includes—

"(1) measures to ensure competition, or the option of competition, at both the prime contract level and the subcontract level (at such tier or tiers as are appropriate) of such program throughout the life-cycle of such program as a means to improve contractor performance; and

"(2) adequate documentation of the rationale for the selection of the subcontract tier or tiers under paragraph (1).

"(b) Measures To Ensure Competition.—The measures to ensure competition, or the option of competition, for purposes of subsection (a)(1) may include measures to achieve the following, in appropriate cases if such measures are cost-effective:

"(1) Competitive prototyping.

"(2) Dual-sourcing.

"(3) Unbundling of contracts.

"(4) Funding of next-generation prototype systems or subsystems.

"(5) Use of modular, open architectures to enable competition for upgrades.

"(6) Use of build-to-print approaches to enable production through multiple sources.

"(7) Acquisition of complete technical data packages.

"(8) Periodic competitions for subsystem upgrades.

"(9) Licensing of additional suppliers.

"(10) Periodic system or program reviews to address long-term competitive effects of program decisions.

"(c) Additional Measures To Ensure Competition at Subcontract Level.—The Secretary shall take actions to ensure competition or the option of competition at the subcontract level on major defense acquisition programs by—

"(1) where appropriate, breaking out a major subsystem, conducting a separate competition for the subsystem, and providing the subsystem to the prime contractor as Government-furnished equipment;

"(2) requiring prime contractors to give full and fair consideration to qualified sources other than the prime contractor for the development or construction of major subsystems and components of major weapon systems;

"(3) providing for government surveillance of the process by which prime contractors consider such sources and determine whether to conduct such development or construction in-house or through a subcontract; and

"(4) providing for the assessment of the extent to which a contractor has given full and fair consideration to qualified sources other than the contractor in sourcing decisions as a part of past performance evaluations.

"(d) Consideration of Competition Throughout Maintenance and Sustainment of Major Weapon Systems and Subsystems.—Whenever a decision regarding source of repair results in a plan to award a contract for performance of maintenance and sustainment of a major weapon system or subsystem of a major weapon system, the Secretary shall take actions to ensure that, to the maximum extent practicable and consistent with statutory requirements, contracts for such maintenance and sustainment, or for components needed for such maintenance and sustainment, are awarded on a competitive basis and give full consideration to all sources (including sources that partner or subcontract with public or private sector repair activities).

"(e) Applicability.—

"(1) Strategy and measures to ensure competition.—The requirements of subsections (a) and (b) shall apply to any acquisition plan for a major defense acquisition program that is developed or revised on or after the date that is 60 days after the date of the enactment of this Act [May 22, 2009].

"(2) Additional actions.—The actions required by subsections (c) and (d) shall be taken within 180 days after the date of the enactment of this Act."

Preservation of Tooling for Major Defense Acquisition Programs

Pub. L. 110–417, [div. A], title VIII, §815, Oct. 14, 2008, 122 Stat. 4530, directed the Secretary of Defense to issue, not later than 270 days after Oct. 14, 2008, guidance requiring the preservation and storage of unique tooling associated with the production of hardware for a major defense acquisition program through the end of the service life of the end item associated with such a program.

Definitions

Pub. L. 111–23, §2, May 22, 2009, 123 Stat. 1704, provided that: "In this Act [see Short Title of 2009 Amendment note set out under section 101 of this title]:

"(1) The term 'congressional defense committees' has the meaning given that term in section 101(a)(16) of title 10, United States Code.

"(2) The term 'major defense acquisition program' has the meaning given that term in section 2430 of title 10, United States Code [now 10 U.S.C. 4201].

"(3) The term 'major weapon system' has the meaning given that term in section 2379(d) [probably means section 2379(f)] of title 10, United States Code [now 10 U.S.C. 3455(f)]."

§4321. Development of major defense acquisition programs: sustainment of system to be replaced

(a) Requirement for Sustaining Existing Forces.—(1) The Secretary of Defense shall require that, whenever a new major defense acquisition program begins development, the defense acquisition authority responsible for that program shall develop a plan (to be known as a "sustainment plan") for the existing system that the system under development is intended to replace. Any such sustainment plan shall provide for an appropriate level of budgeting for sustaining the existing system until the replacement system to be developed under the major defense acquisition program is fielded and assumes the majority of responsibility for the mission of the existing system. This section does not apply to a major defense acquisition that reaches initial operational capability before October 1, 2008.

(2) In this section, the term "defense acquisition authority" means the Secretary of a military department or the commander of the United States Special Operations Command.

(b) Sustainment Plan.—The Secretary of Defense shall require that each sustainment plan under this section include, at a minimum, the following:

(1) The milestone schedule for the development of the major defense acquisition program, including the scheduled dates for low-rate initial production, initial operational capability, full-rate production, and full operational capability and the date as of when the replacement system is scheduled to assume the majority of responsibility for the mission of the existing system.

(2) An analysis of the existing system to assess the following:

(A) Anticipated funding levels necessary to—

(i) ensure acceptable reliability and availability rates for the existing system; and

(ii) maintain mission capability of the existing system against the relevant threats.

(B) The extent to which it is necessary and appropriate to—

(i) transfer mature technologies from the new system or other systems to enhance the mission capability of the existing system against relevant threats; and

(ii) provide interoperability with the new system during the period from initial fielding until the new system assumes the majority of responsibility for the mission of the existing system.

(c) Exceptions.—Subsection (a) shall not apply to a major defense acquisition program if the Secretary of Defense determines that—

(1) the existing system is no longer relevant to the mission;

(2) the mission has been eliminated;

(3) the mission has been consolidated with another mission in such a manner that another existing system can adequately meet the mission requirements; or

(4) the duration of time until the new system assumes the majority of responsibility for the existing system's mission is sufficiently short so that mission availability, capability, interoperability, and force protection requirements are maintained.

(d) Waiver.—The Secretary of Defense may waive the applicability of subsection (a) to a major defense acquisition program if the Secretary determines that, but for such a waiver, the Department would be unable to meet national security objectives. Whenever the Secretary makes such a determination and authorizes such a waiver, the Secretary shall submit notice of such waiver and of the Secretary's determination and the reasons therefor in writing to the congressional defense committees.

(Added Pub. L. 108–375, div. A, title VIII, §805(a)(1), Oct. 28, 2004, 118 Stat. 2008, §2437; renumbered §4321, Pub. L. 116–283, div. A, title XVIII, §1848(b), Jan. 1, 2021, 134 Stat. 4258.)

Editorial Notes

Prior Provisions

A prior section 4321 was renumbered section 7421 of this title.

Amendments

2021—Pub. L. 116–283 renumbered section 2437 of this title as this section.

Statutory Notes and Related Subsidiaries

Effective Date of 2021 Amendment

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 a note preceding section 3001 of this title.

Effective Date

Pub. L. 108–375, div. A, title VIII, §805(b), Oct. 28, 2004, 118 Stat. 2009, provided that: "Section 2437 of title 10, United States Code [now 10 U.S.C. 4321], as added by subsection (a), shall apply with respect to a major defense acquisition program for a system that is under development as of the date of the enactment of this Act [Oct. 28, 2004] and is not expected to reach initial operational capability before October 1, 2008. The Secretary of Defense shall require that a sustainment plan under that section be developed not later than one year after the date of the enactment of this Act for the existing system that the system under development is intended to replace."

§4323. Sustainment reviews

(a) In General.—The Secretary of each military department shall conduct a sustainment review of each covered system not later than five years after declaration of initial operational capability of a major defense acquisition program, and every five years thereafter throughout the life cycle of the covered system, to assess the product support strategy, performance, and operation and support costs of the covered system. The results of the sustainment review shall be documented in a memorandum by the relevant decision authority. The Secretary concerned shall make the memorandum and supporting documentation for each sustainment review available to the Under Secretary of Defense for Acquisition and Sustainment within 30 days after the review is completed.

(b) Elements.—At a minimum, the review required under subsection (a) shall assess execution of the life cycle sustainment plan of the covered system and include the following elements:

(1) An independent cost estimate for the remainder of the life cycle of the program.

(2) A comparison of actual costs to the amount of funds budgeted and appropriated in the previous five years, and if funding shortfalls exist, an explanation of the implications on equipment availability.

(3) A comparison between the assumed and achieved system reliabilities.

(4) An analysis of the most cost-effective source of repairs and maintenance.

(5) An evaluation of the cost of consumables and depot-level repairables.

(6) An evaluation of the costs of information technology, networks, computer hardware, and software maintenance and upgrades.

(7) As applicable, an assessment of the actual fuel efficiencies compared to the projected fuel efficiencies as demonstrated in tests or operations.

(8) As applicable, a comparison of actual manpower requirements to previous estimates.

(9) An analysis of whether accurate and complete data are being reported in the cost systems of the military department concerned, and if deficiencies exist, a plan to update the data and ensure accurate and complete data are submitted in the future.

(10) As applicable, information regarding any decision to restructure the life cycle sustainment plan for a covered system or any other action that will lead to critical operating and support cost growth.

(c) Coordination.—The review required under subsection (a) shall be conducted in coordination with the requirements of sections 4324 and 4325 of this title.

(d) Submission to Congress.—(1) Not later than September 30 of each fiscal year, the Secretary of each military department shall annually submit to the congressional defense committees the sustainment reviews required by this section for such fiscal year.

(2) Each submission under paragraph (1) shall be submitted in unclassified form, but may include a classified annex.

(3) For a covered system with critical operating and support cost growth, such submission shall include a remediation plan to reduce operating and support costs or a certification by the Secretary concerned that such critical operating and support cost growth is necessary to meet national security requirements.

(e) Definitions.—In this section:

(1) Covered system.—The term "covered system" shall have the meaning given in section 4324 of this title.

(2) Critical operating and support cost growth.—The term "critical operating and support cost growth" means operating and support cost growth—

(A) of at least 25 percent more than the estimate documented in the most recent independent cost estimate for the covered system; or

(B) of at least 50 percent more than the estimate documented in the original Baseline Estimate (as defined in section 4214(d) of this title) for the covered system.

(Added Pub. L. 114–328, div. A, title VIII, §849(c)(1), Dec. 23, 2016, 130 Stat. 2293, §2441; amended Pub. L. 115–91, div. A, title VIII, §§816, 836(b)(2), Dec. 12, 2017, 131 Stat. 1462, 1473; renumbered §4323 and amended Pub. L. 116–283, div. A, title VIII, §802(c), title XVIII, §§1848(c), 1883(b)(2), Jan. 1, 2021, 134 Stat. 3732, 4258, 4294.)

Editorial Notes

Amendments

2021—Pub. L. 116–283, §1848(c), renumbered section 2441 of this title as this section.

Subsec. (a). Pub. L. 116–283, §802(c)(1), in first sentence, substituted "covered system" for "major weapon system", ", and every five years thereafter throughout the life cycle of the covered system," for "and throughout the life cycle of the weapon system", and "costs of the covered system" for "costs of the weapon system" and struck out second sentence which read as follows: "For any review after the first one, the Secretary concerned shall use availability and reliability thresholds and cost estimates as the basis for the circumstances that prompt such a review."

Subsec. (b). Pub. L. 116–283, §802(c)(2)(A), inserted "assess execution of the life cycle sustainment plan of the covered system and" before "include the following elements:" in introductory provisions.

Subsec. (b)(10). Pub. L. 116–283, §802(c)(2)(B), added par. (10).

Subsec. (c). Pub. L. 116–283, §1848(c), substituted "sections 4324 and 4325" for "sections 2337 and 2337a".

Subsec. (d). Pub. L. 116–283, §802(c)(3), added subsec. (d).

Subsec. (e). Pub. L. 116–283, §802(c)(3), added subsec. (e).

Subsec. (e)(1). Pub. L. 116–283, §1883(b)(2), substituted "section 4324" for "section 2337".

Subsec. (e)(2)(B). Pub. L. 116–283, §1883(b)(2), substituted "section 4214(d)" for "section 2435(d)".

2017—Subsec. (a). Pub. L. 115–91, §816, inserted at end "The Secretary concerned shall make the memorandum and supporting documentation for each sustainment review available to the Under Secretary of Defense for Acquisition and Sustainment within 30 days after the review is completed."

Subsec. (c). Pub. L. 115–91, §836(b)(2), substituted "sections 2337 and 2337a of this title" for "section 2337 of this title and section 832 of the National Defense Authorization Act for Fiscal Year 2012 (Public Law 112–81; 10 U.S.C. 2430 note)".

Statutory Notes and Related Subsidiaries

Effective Date of 2021 Amendment

Amendment by sections 1848(c) and 1883(b)(2) of 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 a note preceding section 3001 of this title.

§4324. Life-cycle management and product support

(a) Guidance on Life-Cycle Management.—The Secretary of Defense shall issue and maintain comprehensive guidance on life-cycle management and the development and implementation of product support strategies for covered systems. The guidance issued pursuant to this subsection shall—

(1) maximize competition and make the best possible use of available Department of Defense and industry resources at the system, subsystem, and component levels; and

(2) maximize value to the Department of Defense by providing the best possible product support outcomes at the lowest operations and support cost.

(b) Life Cycle Sustainment Plan.—

(1) In general.—Before granting Milestone B approval (or the equivalent), the milestone decision authority shall ensure that each covered system has an approved life cycle sustainment plan for which the milestone decision authority has received views from appropriate materiel, logistics, or fleet representatives. The life cycle sustainment plan shall include—

(A) a comprehensive product support strategy;

(B) performance goals, including key performance parameters for sustainment, key system attributes of the covered system, and other appropriate metrics;

(C) an approved life-cycle cost estimate for the covered system;

(D) affordability constraints and key cost factors that could affect the operating and support costs of the covered system;

(E) sustainment risks and proposed mitigation plans for such risks;

(F) engineering and design considerations that support cost-effective sustainment of the covered system;

(G) an intellectual property management plan for product support, including requirements for technical data, software, and modular open system approaches (as defined in section 4401 of this title);

(H) an estimate of the number of personnel needed to operate and maintain the covered system, including military personnel, Federal employees, contractors, and host nation support personnel (as applicable);

(I) a description of opportunities for foreign military sales; and

(J) major maintenance and overhaul requirements that will be required during the life cycle of the covered system.

(2) Subsequent phases.—Before granting Milestone C approval (or the equivalent) for the covered system, the milestone decision authority shall ensure that the life cycle sustainment plan required by paragraph (1) for such covered system has been updated to include views received by the milestone decision authority from appropriate materiel, logistics, or fleet representatives.

(c) Product Support Managers.—

(1) Requirement.—The Secretary of Defense shall require that each covered system be supported by a product support manager in accordance with this subsection.

(2) Responsibilities.—A product support manager for a covered system shall—

(A) develop, update, and implement a life cycle sustainment plan described in subsection (b);

(B) ensure the life cycle sustainment plan is informed by appropriate predictive analysis and modeling tools that can improve material availability and reliability, increase operational availability rates, and reduce operation and sustainment costs;

(C) conduct appropriate cost analyses to validate the product support strategy and life cycle sustainment plan, including cost-benefit analyses as outlined in Office of Management and Budget Circular A–94;

(D) ensure achievement of desired product support outcomes through development and implementation of appropriate product support arrangements;

(E) adjust performance requirements and resource allocations across product support integrators and product support providers as necessary to optimize implementation of the product support strategy;

(F) periodically review product support arrangements between the product support integrators and product support providers to ensure the arrangements are consistent with the overall product support strategy;

(G) prior to each change in the product support strategy or every five years, whichever occurs first, revalidate any business-case analysis performed in support of the product support strategy;

(H) ensure that the product support strategy maximizes small business participation at the appropriate tiers; and

(I) ensure that product support arrangements for the covered system describe how such arrangements will ensure efficient procurement, management, and allocation of Government-owned parts inventories in order to prevent unnecessary procurements of such parts.

(d) Definitions.—In this section:

(1) Product support.—The term "product support" means the package of support functions required to field and maintain the readiness and operational capability of covered systems, subsystems, and components, including all functions related to covered system readiness.

(2) Product support arrangement.—The term "product support arrangement" means a contract, task order, or any type of other contractual arrangement, or any type of agreement or non-contractual arrangement within the Federal Government, for the performance of sustainment or logistics support required for covered systems, subsystems, or components. The term includes arrangements for any of the following:

(A) Performance-based logistics.

(B) Sustainment support.

(C) Contractor logistics support.

(D) Life-cycle product support.

(E) Weapon systems product support.

(3) Product support integrator.—The term "product support integrator" means an entity within the Federal Government or outside the Federal Government charged with integrating all sources of product support, both private and public, defined within the scope of a product support arrangement.

(4) Product support provider.—The term "product support provider" means an entity that provides product support functions. The term includes an entity within the Department of Defense, an entity within the private sector, or a partnership between such entities.

(5) Covered system.—The term "covered system" means—

(A) a major defense acquisition program as defined in section 4201 of this title; or

(B) an acquisition program or project that is carried out using the rapid fielding or rapid prototyping acquisition pathway under section 3602 of this title that is estimated by the Secretary of Defense to require an eventual total expenditure described in section 4201(a)(2).

(6) Milestone b approval.—The term "Milestone B approval" has the meaning given that term in section 4172(e)(7) of this title.

(7) Milestone c approval.—The term "Milestone C approval" has the meaning given that term in section 4172(e)(8) of this title.

(8) Milestone decision authority.—The term "milestone decision authority" has the meaning given in section 4211(e)(3) of this title.

(Added Pub. L. 112–239, div. A, title VIII, §823(a)(1), Jan. 2, 2013, 126 Stat. 1830, §2337; amended Pub. L. 113–66, div. A, title VIII, §823, Dec. 26, 2013, 127 Stat. 809; renumbered §4324 and amended Pub. L. 116–283, div. A, title VIII, §802(a), title XVIII, §§1848(d)(1), (2), 1883(b)(2), Jan. 1, 2021, 134 Stat. 3731, 4258, 4294; Pub. L. 117–81, div. A, title XVII, §1701(b)(17), (d)(11), Dec. 27, 2021, 135 Stat. 2135, 2137; Pub. L. 117–263, div. A, title VIII, §806, Dec. 23, 2022, 136 Stat. 2702; Pub. L. 118–159, div. A, title VIII, §804(c)(3), Dec. 23, 2024, 138 Stat. 1968.)

Editorial Notes

Amendments

2024—Subsec. (d)(5)(B). Pub. L. 118–159 substituted "section 3602 of this title" for "section 804 of the National Defense Authorization Act for Fiscal Year 2016 (Public Law 114–92; 10 U.S.C. 2302 note)".

2022—Subsec. (b). Pub. L. 117–263, §806(a), designated existing provisions as par. (1) and inserted heading; inserted "for which the milestone decision authority has received views from appropriate materiel, logistics, or fleet representatives" after "approved life cycle sustainment plan"; designated former pars. (1) to (8) as subpars. (A) to (G) and (J), respectively, of par. (1); amended subpar. (G) generally, prior to which text read "a technical data and intellectual property management plan for product support; and"; added subpars. (H) and (I) of par. (1); and added par. (2). Amendment adding par. (2) "at the end of" par. (1) was executed by adding par. (2) after par. (1) to reflect the probable intent of Congress.

Subsec. (d)(7), (8). Pub. L. 117–263, §806(b), added par. (7) and redesignated former par. (7) as (8).

2021—Pub. L. 116–283, §1848(d)(1), renumbered section 2337 of this title as this section.

Pub. L. 116–283, §802(a)(1)–(3), substituted "covered system" for "major weapon system" and "weapon system" and "covered systems" for "major weapon systems" wherever appearing.

Subsec. (b). Pub. L. 116–283, §802(a)(5), added subsec. (b). Former subsec. (b) redesignated (c).

Subsec. (c). Pub. L. 116–283, §802(a)(4), redesignated subsec. (b) as (c). Former subsec. (c) redesignated (d).

Subsec. (c)(2)(A). Pub. L. 116–283, §802(a)(6)(A), amended subpar. (A) generally. Prior to amendment, subpar. (A) read as follows: "develop and implement a comprehensive product support strategy for the weapon system;".

Subsec. (c)(2)(B). Pub. L. 116–283, §802(a)(6)(B), substituted "ensure the life cycle sustainment plan is informed by" for "use".

Subsec. (c)(2)(C). Pub. L. 116–283, §802(a)(6)(C), inserted "and life cycle sustainment plan" after "product support strategy".

Subsec. (c)(5). Pub. L. 116–283, §1848(d)(2), which directed amendment of subsec. (c)(5) by substituting "section 3041(c)(1)" for "section 2302d(a)" and could not be executed, was repealed by Pub. L. 117–81, §1701(b)(17).

Subsec. (d). Pub. L. 116–283, §802(a)(4), redesignated subsec. (c) as (d).

Subsec. (d)(5). Pub. L. 116–283, §802(a)(7)(A), amended par. (5) generally. Prior to amendment, par. (5) defined "major weapon system".

Subsec. (d)(5)(A). Pub. L. 117–81, §1701(d)(11)(A), substituted "section 4201" for "section 2430".

Pub. L. 116–283, §1883(b)(2), which directed that each reference in the text of title 10 to a section that was redesignated by title XVIII of Pub. L. 116–283, as such section was in effect before the redesignation, be amended by striking such reference and inserting a reference to the appropriate redesignated section, was not executed with respect to "section 2430", which was redesignated as multiple sections.

Subsec. (d)(5)(B). Pub. L. 117–81, §1701(d)(11)(A), which directed the substitution of "section 4201(a)(2) of this title" for "section 2430(a)(1)(B)", could not be executed because of the intervening amendment by Pub. L. 116–283, §1883(b)(2). See note below.

Pub. L. 116–283, §1883(b)(2), substituted "section 4201(a)(2)" for "section 2430(a)(1)(B)".

Subsec. (d)(6). Pub. L. 117–81, §1701(d)(11)(B), which directed the substitution of "section 4172(e)(7)" for "section 2366(e)(7)", could not be executed because of the intervening amendment by Pub. L. 116–283, §1883(b)(2). See note below.

Pub. L. 116–283, §1883(b)(2), substituted "section 4172(e)(7)" for "section 2366(e)(7)".

Pub. L. 116–283, §802(a)(7)(B), added par. (6).

Subsec. (d)(7). Pub. L. 117–81, §1701(d)(11)(C), which directed the substitution of "section 4211(e)(3)" for "section 2431a(e)(5)", could not be executed because of the intervening amendment by Pub. L. 116–283, §1883(b)(2). See note below.

Pub. L. 116–283, §1883(b)(2), substituted "section 4211(e)(3)" for "section 2431a(e)(5)".

Pub. L. 116–283, §802(a)(7)(B), added par. (7).

2013—Subsec. (b)(2)(I). Pub. L. 113–66 added subpar. (I).

Statutory Notes and Related Subsidiaries

Effective Date of 2021 Amendment

Amendment by section 1701(d)(11) of Pub. L. 117–81 to take effect immediately after the amendments made by title XVIII of Pub. L. 116–283 have taken effect, see section 1701(a)(3) of Pub. L. 117–81, set out in a note preceding section 3001 of this title and note below.

Amendment by sections 1848(d)(1), (2) and 1883(b)(2) of 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 a note preceding section 3001 of this title.

Similar Provisions

Provisions similar to those in this section were contained in section 805 of Pub. L. 111–84, which was set out as a note under section 2302 of this title prior to repeal by Pub. L. 112–239, div. A, title VIII, §823(b), Jan. 2, 2013, 126 Stat. 1832.

§4325. Major weapon systems: assessment, management, and control of operating and support costs

(a) Guidance Required.—The Secretary of Defense shall issue and maintain guidance on actions to be taken to assess, manage, and control Department of Defense costs for the operation and support of major weapon systems.

(b) Elements.—The guidance required by subsection (a) shall, at a minimum—

(1) be issued in conjunction with the comprehensive guidance on life-cycle management and the development and implementation of product support strategies for major weapon systems required by section 4324 of this title;

(2) require the military departments to retain each estimate of operating and support costs that is developed at any time during the life cycle of a major weapon system, together with supporting documentation used to develop the estimate;

(3) require the military departments to update estimates of operating and support costs periodically throughout the life cycle of a major weapon system, to determine whether preliminary information and assumptions remain relevant and accurate, and identify and record reasons for variances;

(4) establish policies and procedures for the collection, organization, maintenance, and availability of standardized data on operating and support costs for major weapon systems in accordance with section 2222 of this title;

(5) establish standard requirements for the collection and reporting of data on operating and support costs for major weapon systems by contractors performing weapon system sustainment functions in an appropriate format, and develop contract clauses to ensure that contractors comply with such requirements;

(6) require the military departments—

(A) to collect and retain data from operational and developmental testing and evaluation on the reliability and maintainability of major weapon systems; and

(B) to use such data to inform system design decisions, provide insight into sustainment costs, and inform estimates of operating and support costs for such systems;

(7) require the military departments to ensure that sustainment factors are fully considered at key life-cycle management decision points and that appropriate measures are taken to reduce operating and support costs by influencing system design early in development, developing sound sustainment strategies, and addressing key drivers of costs;

(8) require the military departments to conduct an independent logistics assessment of each major weapon system prior to key acquisition decision points (including milestone decisions) to identify features that are likely to drive future operating and support costs, changes to system design that could reduce such costs, and effective strategies for managing such costs;

(9) include—

(A) reliability metrics for major weapon systems; and

(B) requirements on the use of metrics under subparagraph (A) as triggers—

(i) to conduct further investigation and analysis into drivers of those metrics; and

(ii) to develop strategies for improving reliability, availability, and maintainability of such systems at an affordable cost; and

(10) require the military departments to conduct periodic reviews of operating and support costs of major weapon systems after such systems achieve initial operational capability to identify and address factors resulting in growth in operating and support costs and adapt support strategies to reduce such costs.

(c) Retention of Data on Operating and Support Costs.—

(1) In general.—The Director of Cost Assessment and Program Evaluation shall be responsible for developing and maintaining a database on operating and support estimates, supporting documentation, and actual operating and support costs for major weapon systems.

(2) Support.—The Secretary of Defense shall ensure that the Director, in carrying out such responsibility—

(A) promptly receives the results of all cost estimates and cost analyses conducted by the military departments with regard to operating and support costs of major weapon systems;

(B) has timely access to any records and data of the military departments (including classified and proprietary information) that the Director considers necessary to carry out such responsibility; and

(C) with the concurrence of the Under Secretary of Defense for Acquisition and Sustainment, may direct the military departments to collect and retain information necessary to support the database.

(d) Major Weapon System Defined.—In this section, the term "major weapon system" has the meaning given that term in section 3455(f) of this title.

(Added Pub. L. 115–91, div. A, title VIII, §836(a)(1), Dec. 12, 2017, 131 Stat. 1472, §2337a; amended Pub. L. 115–232, div. A, title X, §1081(a)(20), Aug. 13, 2018, 132 Stat. 1984; renumbered §4325 and amended Pub. L. 116–283, div. A, title XVIII, §1848(d)(1), (3), Jan. 1, 2021, 134 Stat. 4258.)

Editorial Notes

Amendments

2021—Pub. L. 116–283, §1848(d)(3)(B), amended section catchline generally. Prior to amendment, section catchline read as follows: "Assessment, management, and control of operating and support costs for major weapon systems".

Pub. L. 116–283, §1848(d)(1), renumbered section 2337a of this title as this section.

Subsec. (b)(1). Pub. L. 116–283, §1848(d)(3)(A)(i), substituted "section 4324" for "section 2337".

Subsec. (d). Pub. L. 116–283, §1848(d)(3)(A)(ii), substituted "section 3455(f)" for "section 2379(f)".

2018—Subsec. (d). Pub. L. 115–232 substituted "this title" for "title 10, United States Code".

Statutory Notes and Related Subsidiaries

Effective Date of 2021 Amendment

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 a note preceding section 3001 of this title.

Pilot Program on Time-Certain Development in Acquisition of Major Weapon Systems

Pub. L. 109–364, div. A, title VIII, §812, Oct. 17, 2006, 120 Stat. 2317, as amended by Pub. L. 110–417, [div. A], title VIII, §813(d)(3), Oct. 14, 2008, 122 Stat. 4527; Pub. L. 111–84, div. A, title X, §1073(c)(5), Oct. 28, 2009, 123 Stat. 2474; Pub. L. 116–283, div. A, title XVIII, §1806(e)(2)(D), Jan. 1, 2021, 134 Stat. 4155, provided that:

"(a) Pilot Program Authorized.—The Secretary of Defense may carry out a pilot program on the use of time-certain development in the acquisition of major weapon systems.

"(b) Purpose of Pilot Program.—The purpose of the pilot program authorized by subsection (a) is to assess the feasibility and advisability of utilizing time-certain development in the acquisition of major weapon systems in order to deliver new capabilities to the warfighter more rapidly through—

"(1) disciplined decision-making;

"(2) emphasis on technological maturity; and

"(3) appropriate trade-offs between—

"(A) cost and system performance; and

"(B) program schedule.

"(c) Inclusion of Systems in Pilot Program.—

"(1) In general.—The Secretary of Defense may include a major weapon system in the pilot program only if—

"(A) the major weapon system meets the criteria under paragraph (2) in accordance with that paragraph; and

"(B) the Milestone Decision Authority nominates such program to the Secretary of Defense for inclusion in the program.

"(2) Criteria.—For purposes of paragraph (1) a major weapon system meets the criteria under this paragraph only if the Milestone Decision Authority determines, in consultation with the service acquisition executive for the military department carrying out the acquisition program for the system and one or more combatant commanders responsible for fielding the system, that—

"(A) the certification requirements of section 2366b of title 10, United States Code [now 10 U.S.C. 4252] (as amended by section 805 of this Act), have been met, and no waivers have been granted from such requirements;

"(B) a preliminary design has been reviewed using systems engineering, and the system, as so designed, will meet battlefield needs identified by the relevant combatant commanders after appropriate requirements analysis;

"(C) a representative model or prototype of the system, or key subsystems, has been demonstrated in a relevant environment, such as a well-simulated operational environment;

"(D) an independent cost estimate has been conducted and used as the basis for funding requirements for the acquisition program for the system;

"(E) the budget of the military department responsible for carrying out the acquisition program for the system provides the funding necessary to execute the product development and production plan consistent with the re