10 USC Ch. 221: PLANNING AND SOLICITATION GENERALLY

From Title 10—ARMED FORCESSubtitle A—General Military LawPART V—ACQUISITIONSubpart B—Acquisition Planning

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 A, title VIII, §801(a), Aug. 13, 2018, 132 Stat. 1827, and consisting of reserved section 3201, was repealed by Pub.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

§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;

(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, provided that:

"(a) Competition Requirement.—For the procurement of pistols and other weapons described in subsection (b), the Secretary of Defense shall ensure, consistent with the provisions of section 2304 of title 10, United States Code [see 10 U.S.C. 3201 et seq.], that—

"(1) full and open competition is obtained to the maximum extent practicable;

"(2) no responsible United States manufacturer is excluded from competing for such procurements; and

"(3) products manufactured in the United States are not excluded from the competition.

"(b) Procurements Covered.—This section applies to the procurement of the following:

"(1) Pistols and other weapons less than 0.50 caliber for assistance to the Army of Iraq, the Iraqi Police Forces, and other Iraqi security organizations.

"(2) Pistols and other weapons less than 0.50 caliber for assistance to the Army of Afghanistan, the Afghani Police Forces, and other Afghani security organizations."

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, provided that: "The Department of Defense shall fully comply with [former] chapter 137 of title 10, United States Code, and other applicable procurement laws and regulations for any contract awarded for reconstruction activities in Iraq, and shall conduct a full and open competition for performing work needed for the reconstruction of the Iraqi oil industry."

§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

§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.

(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;

(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;

(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

Effective Date

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

§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

(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.

(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

(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

(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

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

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)".