10 USC Ch. 221: Front Matter

From Title 10-ARMED FORCESSubtitle A-General Military LawPART V-ACQUISITIONSubpart B-Acquisition PlanningCHAPTER 221-PLANNING AND SOLICITATION GENERALLY

Jump To: MiscellaneousPrior Provisions

CHAPTER 221-PLANNING AND SOLICITATION GENERALLY

Sec.

3201.

Full and open competition.

3202.

[Reserved].

3203.

Exclusion of particular source or restriction of solicitation to small business concerns.

3204.

Use of procedures other than competitive procedures.

3205.

Simplified procedures for small purchases.

3206.

Planning and solicitation requirements.

3207.

Assessment before contract for acquisition of supplies is entered into.

3208.

Planning for future competition in contracts for major systems.

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 A, title VIII, §801(a), Aug. 13, 2018, 132 Stat. 1827 , and consisting of reserved section 3201, was repealed by Pub.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

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 section 804(a) of the National Defense Authorization Act for Fiscal Year 2016 (Public Law 114–92; 10 U.S.C. 2302 note [now 10 U.S.C. 3201 note prec., set out below]). 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 section 804(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 , provided that:

"(a) Guidance Required.-Not later than 180 days after the date of the enactment of this Act [Nov. 25, 2015], 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 guidance for a 'middle tier' of acquisition programs that are intended to be completed in a period of two to five years.

"(b) Acquisition Pathways.-The guidance required by subsection (a) shall cover 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 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 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.-The guidance required by subsection (a) shall provide for a streamlined and coordinated requirements, budget, and acquisition process that results in the development of an approved requirement for each program in a period of not more than six months from the time that the process is initiated. Programs that are subject to the guidance shall not be subject to the Joint Capabilities Integration and Development System Manual and Department of Defense Directive 5000.01, except to the extent specifically provided in the guidance.

"(2) Rapid prototyping.-With respect to the rapid prototyping pathway, the guidance 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 the program;

"(C) a process for demonstrating and evaluating the performance of fieldable prototypes developed pursuant to the program in an operational environment; and

"(D) a process for transitioning successful prototypes to new or existing acquisition programs for production and fielding under the rapid fielding pathway or the traditional acquisition system.

"(3) Rapid fielding.-With respect to the rapid fielding pathway, the guidance 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 the program;

"(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 guidance for the programs may provide for any of the following streamlined procedures:

"(A) The service acquisition executive of the military department concerned shall appoint a program manager for such program 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) The program manager for each program shall report with respect to such program directly, without intervening review or approval, to the service acquisition executive of the military department concerned.

"(C) The service acquisition executive of the military department concerned shall evaluate the job performance of such manager on an annual basis. In conducting an evaluation under this paragraph, a service acquisition executive shall consider the extent to which the manager has achieved the objectives of the program for which the manager is responsible, including quality, timeliness, and cost objectives.

"(D) The program manager of a defense streamlined program shall be authorized staff positions for a technical staff, including experts in business management, contracting, auditing, engineering, testing, and logistics, to enable the manager to manage the program without the technical assistance of another organizational unit of an agency to the maximum extent practicable.

"(E) The program manager of a defense streamlined program shall be authorized, in coordination with the users of the equipment and capability to be acquired and the test community, to make trade-offs among life-cycle costs, requirements, and schedules to meet the goals of the program.

"(F) The service acquisition executive, acting in coordination with the defense acquisition executive, shall serve as the milestone decision authority for the program.

"(G) The program manager of a defense streamlined program shall be provided a process to expeditiously seek a waiver from Congress from any statutory or regulatory requirement that the program manager determines adds little or no value to the management of the program.

"(d) Rapid Prototyping Funds.-

"(1)Department of defense rapid prototyping fund.-

"(A) In general.-The Secretary of Defense shall establish a fund to be known as the 'Department of Defense Rapid Prototyping Fund' to provide funds, in addition to other funds that may be available, for acquisition programs under the rapid prototyping pathway established pursuant to this section and other purposes specified in law. The Fund shall be managed by a senior official of the Department of Defense designated by the Deputy Secretary of Defense. The Fund shall consist of-

"(i) amounts appropriated to the Fund;

"(ii) amounts credited to the Fund pursuant to section 828 of this Act [set out as a note preceding section 4201 of this title]; and

"(iii) any other amounts appropriated to, credited to, or transferred to the Fund.

"(B) Transfer authority.-Amounts available in the Fund may be transferred to a military department for the purpose of carrying out an acquisition program under the rapid prototyping pathway established pursuant to this section. Any amount so transferred shall be credited to the account to which it is transferred. The transfer authority provided in this paragraph is in addition to any other transfer authority available to the Department of Defense.

"(C) Congressional notice.-The senior official designated to manage the Fund shall notify the congressional defense committees [Committees on Armed Services and Appropriations of the Senate and the House of Representatives] of all transfers under paragraph (2) within 5 business days after such transfer. Each notification shall specify the amount transferred, the purpose of the transfer, and the total projected cost and estimated cost to complete the acquisition program to which the funds were transferred."

"(2) Rapid prototyping funds for the military departments.-The Secretary of each military department may establish a military department-specific fund (and, in the case of the Secretary of the Navy, including the Marine Corps) to provide funds, in addition to other funds that may be available to the military department concerned, for acquisition programs under the rapid fielding and prototyping pathways established pursuant to this section. Each military department-specific fund shall consist of amounts appropriated or credited to the fund.

"(e) Report.-Not later than 30 days after the date of termination of an acquisition program commenced using the authority under this section, the Secretary of Defense shall submit to Congress a notification of such termination. Such notice shall include-

"(1) the initial amount of a contract awarded under such acquisition program;

"(2) the aggregate amount of funds awarded under such contract; and

"(3) written documentation of the reason for termination of such acquisition program."

[ 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)(2) to section 804 of Pub. L. 114–92, set out above, is effective as of Nov. 25, 2015, and as if included in Pub. L. 114–92 as enacted.]

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.-

"(A) review-

"(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-

"(B) determine in writing whether such non-defense agency is or is not compliant with defense procurement requirements.

"(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.

"(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) determine that such non-defense agency is compliant with defense procurement requirements; and

"(2) notify the Secretary of Defense of that determination.

"(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

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.]."