10 USC Subtitle A, PART V, Subpart F: Major Systems, Major Defense Acquisition Programs, and Weapon Systems Development

From Title 10—ARMED FORCESSubtitle A—General Military LawPART V—ACQUISITION

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

Editorial Notes

Prior Provisions

A prior subpart F "Special Categories of Contracting: Research, Development, Test, and Evaluation", consisting of chapters 321 to 329, was repealed by Pub. L. 116–283, div. A, title XVIII, §1841(a)(1)(A), Jan. 1, 2021, 134 Stat. 4242.

CHAPTER 321—GENERAL MATTERS

Sec.

4201.

Major defense acquisition programs: definition; exceptions.

4202.

Authority to increase definitional threshold amounts: major defense acquisition programs; major systems.

4203.

Major subprograms.

4204.

Milestone decision authority.

4205.

Weapon systems for which procurement funding requested in budget: development and procurement schedules.

Editorial Notes

Prior Provisions

A prior chapter 321 "RESEARCH AND DEVELOPMENT GENERALLY", consisting of reserved section 4201, was repealed by Pub. L. 116–283, div. A, title XVIII, §1841(a)(1)(A), Jan. 1, 2021, 134 Stat. 4242.

Statutory Notes and Related Subsidiaries

Enhanced Domestic Content Requirement for Major Defense Acquisition Programs

Pub. L. 118–31, div. A, title VIII, §835, Dec. 22, 2023, 137 Stat. 338, provided that:

"(a) Assessment Required.—

"(1) In general.—Not later than one year after the date of the enactment of this Act [Dec. 22, 2023], the Secretary of Defense shall submit to the congressional defense committees [Committees on Armed Services and Appropriations of the Senate and the House of Representatives] a report assessing the domestic source content of procurements carried out in connection with a major defense acquisition program.

"(2) Information repository.—The Secretary of Defense shall establish an information repository for the collection and analysis of information related to domestic source content for products the Secretary deems critical, where such information can be used for continuous data analysis and program management activities.

"(b) Enhanced Domestic Content Requirement.—

"(1) In general.—Except as provided in paragraph (2), for purposes of chapter 83 of title 41, United States Code, manufactured articles, materials, or supplies procured in connection with a major defense acquisition program are manufactured substantially all from articles, materials, or supplies mined, produced, or manufactured in the United States if the cost of such component articles, materials, or supplies—

"(A) supplied not later than the date of the enactment of this Act, exceeds 60 percent of cost of the manufactured articles, materials, or supplies procured;

"(B) supplied during the period beginning January 1, 2024, and ending December 31, 2028, exceeds 65 percent of the cost of the manufactured articles, materials, or supplies; and

"(C) supplied on or after January 1, 2029, exceeds 75 percent of the cost of the manufactured articles, materials, or supplies.

"(2) Exclusion for certain manufactured articles.—Paragraph (1) shall not apply to manufactured articles that consist wholly or predominantly of iron, steel, or a combination of iron and steel.

"(3) Rulemaking to create a fallback threshold.—

"(A) In general.—Not later than 180 days after the date of the enactment of this Act, the Secretary of Defense shall issue rules to determine the treatment of the lowest price offered for a foreign end product for which 55 percent or more of the component articles, materials, or supplies of such foreign end product are manufactured substantially all from articles, materials, or supplies mined, produced, or manufactured in the United States if—

"(i) the application of paragraph (1) results in an unreasonable cost; or

"(ii) no offers are submitted to supply manufactured articles, materials, or supplies manufactured substantially all from articles, materials, or supplies mined, produced, or manufactured in the United States.

"(B) Termination.—Rules issued under this paragraph shall cease to have force or effect on January 1, 2031.

"(4) Applicability.—The requirements of this subsection—

"(A) shall apply to contracts entered into on or after the date of the enactment of this Act [Dec. 22, 2023];

"(B) shall not apply to articles manufactured in countries that have executed a reciprocal defense procurement memorandum of understanding with the United States entered into pursuant to section 4851 of title 10, United States Code; and

"(C) shall not apply to a country that is a member of the national technology and industrial base (as defined by section 4801 of title 10, United States Code).

"(c) Major Defense Acquisition Program Defined.—The term 'major defense acquisition program' has the meaning given in section 4201 of title 10, United States Code."

Penalty for Cost Overruns

Pub. L. 114–92, div. A, title VIII, §828, Nov. 25, 2015, 129 Stat. 910, as amended by Pub. L. 115–91, div. A, title VIII, §825, Dec. 12, 2017, 131 Stat. 1466; Pub. L. 115–232, div. A, title X, §1081(d), Aug. 13, 2018, 132 Stat. 1986; Pub. L. 116–92, div. A, title VIII, §805(a), (b)(2), Dec. 20, 2019, 133 Stat. 1485, provided that:

"(a) In General.—For fiscal years 2018 and 2019, the Secretary of each military department shall pay a penalty for cost overruns on the covered major defense acquisition programs of the military department.

"(b) Calculation of Penalty.—For the purposes of this section:

"(1) The amount of the cost overrun on any major defense acquisition program or subprogram in a fiscal year is the difference between the current program acquisition unit cost for the program or subprogram and the program acquisition unit cost for the program as shown in the original Baseline Estimate for the program or subprogram, multiplied by the quantity of items to be purchased under the program or subprogram, as reported in the final Selected Acquisition Report for the fiscal year in accordance with section 2432 of title 10, United States Code [now 10 U.S.C. 4351].

"(2) Cost overruns for covered major defense acquisition programs that are joint programs of more than one military department shall be allocated among the military departments in percentages determined by the Under Secretary of Defense for Acquisition and Sustainment.

"(3) The cumulative amount of cost overruns for a military department in a fiscal year is the sum of the cost overruns for all covered major defense acquisition programs of the department in the fiscal year (including cost overruns allocated to the military department in accordance with paragraph (2)).

"(4) The cost overrun penalty for a military department in a fiscal year is three percent of the cumulative amount of cost overruns of the military department in the fiscal year, as determined pursuant to paragraph (3).

"(c) Total Cost Overrun Penalty.—Notwithstanding the amount of a cost overrun penalty determined in subsection (b), the total cost overrun penalty for a military department (including any cost overrun penalty for joint programs of military departments) for a fiscal year may not exceed $50,000,000.

"(d) Transfer of Funds.—

"(1) Reduction of research, development, test, and evaluation or procurement accounts.—Not later than 60 days after the end of each of fiscal years 2018 through 2022, the Secretary of each military department shall reduce the research, development, test, and evaluation or procurement accounts of the military department by the amount determined under paragraph (2), and remit such amount to the Secretary of Defense.

"(2) Determination of amounts.—The reductions to research, development, test, and evaluation or procurement accounts of a military department referred to in paragraph (1) are the reductions to such accounts necessary to equal, when combined, the cost overrun penalty for the fiscal year for such department determined pursuant to subsection (b)(4).

"(3) Crediting of funds.—Any amount remitted under paragraph (1) shall be credited to the Rapid Prototyping Fund established pursuant to section 804 of this Act [set out as a note preceding section 3201 of this title].

"(e) Covered Programs.—A major defense acquisition program is covered under this section if the original Baseline Estimate was established for such program under paragraph (1) or (2) of section 2435(d) of title 10, United States Code [now 10 U.S.C. 4214(d)], on or after May 22, 2009 (which is the date of the enactment of the Weapon Systems Acquisition Reform Act of 2009 (Public Law 111–23))."

[Pub. L. 115–91, div. A, title VIII, §825(b), Dec. 12, 2017, 131 Stat. 1466, which provided that the requirements of section 828 of Pub. L. 114–92, as in effect on the day before Dec. 12, 2017, would continue to apply with respect to fiscal years beginning on or before Oct. 1, 2016, was repealed by Pub. L. 116–92, div. A, title VIII, §805(b)(1), Dec. 20, 2019, 133 Stat. 1485.]

§4201. Major defense acquisition programs: definition; exceptions

(a) Definition.—Except as provided under subsection (b), in this part, the term "major defense acquisition program" means a Department of Defense acquisition program that is not a highly sensitive classified program (as determined by the Secretary of Defense) and—

(1) that is designated by the Secretary of Defense as a major defense acquisition program; or

(2) in the case of a program that is not a program for the acquisition of an automated information system (either a product or a service), that is estimated by the Secretary of Defense to require—

(A) an eventual total expenditure for research, development, test, and evaluation of more than $300,000,000 (based on fiscal year 1990 constant dollars); or

(B) an eventual total expenditure for procurement, including all planned increments or spirals, of more than $1,800,000,000 (based on fiscal year 1990 constant dollars).

(b) Exceptions.—In this part, the term "major defense acquisition program" does not include the following:

(1) An acquisition program or project that is carried out using the rapid fielding or rapid prototyping acquisition pathway under section 804 of the National Defense Authorization Act for Fiscal Year 2016 (Public Law 114–92; 10 U.S.C. 2302 note).¹

(2) An acquisition program for a defense business system (as defined in section 2222(i)(1) of this title) carried out using the acquisition guidance issued pursuant to section 883(e) of the National Defense Authorization Act for Fiscal Year 2016 (Public Law 114–92; 10 U.S.C. 2223a note).¹

(Added and amended Pub. L. 116–283, div. A, title XVIII, §1846(b), (c), Jan. 1, 2021, 134 Stat. 4248.)

Editorial Notes

References in Text

Section 804 of the National Defense Authorization Act for Fiscal Year 2016, referred to in subsec. (b)(1), is section 804 of Pub. L. 114–92, which is set out as a note preceding section 3201 of this title.

Section 883(e) of the National Defense Authorization Act for Fiscal Year 2016, referred to in subsec. (b)(2), is section 883(e) of Pub. L. 114–92, which is set out as a note preceding section 4571 of this title.

Codification

The text of subsec. (a) of section 2430 of this title, which was transferred to this section and amended by Pub. L. 116–283, §1846(c)(1), was based on Pub. L. 100–26, §7(b)(2)(A), Apr. 21, 1987, 101 Stat. 279; Pub. L. 102–484, div. A, title VIII, §817(b)(1), (2), Oct. 23, 1992, 106 Stat. 2455; Pub. L. 111–23, title II, §206(b)(1), May 22, 2009, 123 Stat. 1728; Pub. L. 114–328, div. A, title VIII, §847(a), Dec. 23, 2016, 130 Stat. 2292; Pub. L. 115–91, div. A, title VIII, §831, Dec. 12, 2017, 131 Stat. 1467.

Amendments

2021—Pub. L. 116–283, §1846(c)(1), transferred subsec. (a) of section 2430 of this title to this section, struck out par. (1) designation, inserted subsec. (a) heading, substituted "under subsection (b), in this part" for "under paragraph (2), in this chapter", redesignated par. (2) as subsec. (b) and subpars. (A) and (B) of subsecs. (a) and (b) as pars. (1) and (2) of subsecs. (a) and (b), respectively, inserted subsec. (b) heading, and substituted "In this part" for "In this chapter" in introductory provisions of subsec. (b).

Subsec. (a)(2). Pub. L. 116–283, §1846(c)(2), substituted "to require—" for "to require", inserted subpar. (A) designation before "an eventual total expenditure for research" and subpar. (B) designation before "an eventual total expenditure for procurement" and substituted "dollars); or" for "dollars) or".

Subsec. (b). Pub. L. 116–283, §1846(c)(3), in introductory provisions, substituted "include the following:" for "include—", in par. (1), substituted "An" for "an" and period at end for "; or" and in par. (2), substituted "An" for "an".

Statutory Notes and Related Subsidiaries

Effective Date

Section and amendment by Pub. L. 116–283 effective Jan. 1, 2022, with additional provisions for delayed implementation and applicability of existing law, see section 1801(d) of Pub. L. 116–283, set out as an Effective Date of 2021 Amendment note preceding section 3001 of this title.

¹ See References in Text note below.

§4202. Authority to increase definitional threshold amounts: major defense acquisition programs; major systems

(a) Adjustments to Thresholds for Major Defense Acquisition Programs.—

(1) Authority.—The Secretary of Defense may adjust the amounts (and the base fiscal year) provided in section 4201(a)(2) of this title on the basis of Department of Defense escalation rates.

(2) Matters to be considered.—For purposes of section 4201(a)(2) of this title, the Secretary shall consider, as applicable, the following:

(A) The estimated level of resources required to fulfill the relevant joint military requirement, as determined by the Joint Requirements Oversight Council pursuant to section 181 of this title.

(B) The cost estimate referred to in section 4251(a)(6) of this title.

(D) The cost estimate within a baseline description as required by section 4214 of this title.

(b) Adjustment Authority for Major Systems.—

(1) Authority.—The Secretary of Defense may adjust the amounts and the base fiscal year provided in section 3041(c)(1) of this title on the basis of Department of Defense escalation rates.

(2) Rounding.—An amount, as adjusted under paragraph (1), that is not evenly divisible by $5,000,000 shall be rounded to the nearest multiple of $5,000,000. In the case of an amount that is evenly divisible by $2,500,000 but not evenly divisible by $5,000,000, the amount shall be rounded to the next higher multiple of $5,000,000.

(c) Notification to Congressional Committees.—An adjustment under subsection (a) or (b) shall be effective after the Secretary transmits to the Committee on Armed Services of the Senate and the Committee on Armed Services of the House of Representatives a written notification of the adjustment.

(Added and amended Pub. L. 116–283, div. A, title XVIII, §1846(b), (d), (e), Jan. 1, 2021, 134 Stat. 4248, 4249.)

Editorial Notes

Codification

The text of subsecs. (b) and (c) of section 2430 of this title, which was transferred to this section, redesignated as pars. (1) and (2) of subsec. (a), respectively, and amended by Pub. L. 116–283, §1846(d)(1), (2)(A), was based on Pub. L. 102–484, div. A, title VIII, §817(b)(3), Oct. 23, 1992, 106 Stat. 2455; Pub. L. 104–106, div. A, title XV, §1502(a)(1), Feb. 10, 1996, 110 Stat. 502; Pub. L. 106–65, div. A, title X, §1067(1), Oct. 5, 1999, 113 Stat. 774; Pub. L. 111–23, title II, §206(b)(2), May 22, 2009, 123 Stat. 1728; Pub. L. 113–291, div. A, title X, §1071(f)(18), Dec. 19, 2014, 128 Stat. 3511; Pub. L. 115–91, div. A, title X, §1081(a)(38), Dec. 12, 2017, 131 Stat. 1596.

The text of subsec. (c) of section 2302d of this title, which was transferred to this section and redesignated as subsecs. (b) and (c) by Pub. L. 116–283, §1846(e)(1), was based on Pub. L. 104–201, div. A, title VIII, §805(a)(2), Sept. 23, 1996, 110 Stat. 2605; Pub. L. 106–65, div. A, title X, §1067(1), Oct. 5, 1999, 113 Stat. 774.

Amendments

2021—Subsec. (a). Pub. L. 116–283, §1846(d)(2)(A), (B), inserted subsec. heading and par. (1) designation and heading before "The Secretary" and substituted "in section 4201(a)(2) of this title" for "in subsection (a)(1)(B)".

Pub. L. 116–283, §1846(d)(1), transferred subsecs. (b) and (c) of section 2430 of this title to this section, redesignated subsec. (b) and subsec. (c) and its pars. (1) to (4) as subsec. (a) and subsec. (a)(2) and its subpars. (A) to (D), respectively, realigned margin of subsec. (a)(2), and struck out second sentence of subsec. (a)(1) as redesignated which read as follows: "An adjustment under this subsection shall be effective after the Secretary transmits a written notification of the adjustment to the Committee on Armed Services of the Senate and the Committee on Armed Services of the House of Representatives."

Subsec. (a)(2). Pub. L. 116–283, §1846(d)(2)(C)(i), (ii), inserted par. heading before "For purposes of" and substituted "section 4201(a)(2) of this title" for "subsection (a)(1)(B)".

Subsec. (a)(2)(B). Pub. L. 116–283, §1846(d)(2)(C)(iii), substituted "section 4251(a)(6)" for "section 2366a(a)(6)".

Subsec. (a)(2)(C). Pub. L. 116–283, §1846(d)(2)(C)(iv), substituted "section 4252(a)(1)(C)" for "section 2366b(a)(1)(C)".

Subsec. (a)(2)(D). Pub. L. 116–283, §1846(d)(2)(C)(v), substituted "section 4214" for "section 2435".

Subsec. (b). Pub. L. 116–283, §1846(e)(2), substituted "Adjustment Authority for Major Systems" for "Adjustment Authority" in subsec. heading, inserted par. headings, substituted "section 3041(c)(1) of this title" for "subsection (a)" in par. (1), and realigned margins of par. (2).

Pub. L. 116–283, §1846(e)(1), transferred subsec. (c) of section 2302d of this title to subsec. (b) of this section and redesignated par. (3) as subsec. (c).

Subsec. (c). Pub. L. 116–283, §1846(e)(3), inserted heading and substituted "under subsection (a) or (b)" for "under this subsection" in text.

Pub. L. 116–283, §1846(e)(1)(B), redesignated par. (3) of subsec. (b) as subsec. (c).

Statutory Notes and Related Subsidiaries

Effective Date

§4203. Major subprograms

(a) Authority To Designate Major Subprograms as Subject to Acquisition Reporting Requirements.—(1)(A) If the Secretary of Defense determines that a major defense acquisition program requires the delivery of two or more categories of end items which differ significantly from each other in form and function, the Secretary may designate each such category of end items as a major subprogram for the purposes of acquisition reporting under this subpart.

(B) If the Secretary of Defense determines that a major defense acquisition program requires the delivery of two or more increments or blocks, the Secretary may designate each such increment or block as a major subprogram for the purposes of acquisition reporting under this subpart.

(2) The Secretary shall notify the congressional defense committees in writing of any proposed designation pursuant to paragraph (1) not less than 30 days before the date such designation takes effect.

(b) Reporting Requirements.—(1) If the Secretary designates a major subprogram of a major defense acquisition program in accordance with subsection (a), Selected Acquisition Reports, unit cost reports, and program baselines under this subpart shall reflect cost, schedule, and performance information—

(A) for the major defense acquisition program as a whole (other than as provided in paragraph (2)); and

(B) for each major subprogram of the major defense acquisition program so designated.

(2) For a major defense acquisition program for which a designation of a major subprogram has been made under subsection (a), unit costs under this subpart shall be submitted in accordance with the definitions in subsection (d).

(c) Requirement to Cover Entire Major Defense Acquisition Program.—If a subprogram of a major defense acquisition program is designated as a major subprogram under subsection (a), all other elements of the major defense acquisition program shall be appropriately organized into one or more subprograms under the major defense acquisition program, each of which subprograms, as so organized, shall be treated as a major subprogram under subsection (a).

(d) Definitions.—Notwithstanding paragraphs (1) and (2) of section 4351(a) of this title, in the case of a major defense acquisition program for which the Secretary has designated one or more major subprograms under this section for the purposes of this subpart—

(1) the term "program acquisition unit cost" applies at the level of the subprogram and means the total cost for the development and procurement of, and specific military construction for, the major defense acquisition program that is reasonably allocable to each such major subprogram, divided by the relevant number of fully-configured end items to be produced under such major subprogram;

(2) the term "procurement unit cost" applies at the level of the subprogram and means the total of all funds programmed to be available for obligation for procurement for each such major subprogram, divided by the number of fully-configured end items to be procured under such major subprogram;

(3) the term "major contract", with respect to a designated major subprogram, means each of the six largest prime, associate, or Government furnished equipment contracts under the subprogram that is in excess of $40,000,000 and that is not a firm-fixed price contract; and

(4) the term "life cycle cost", with respect to a designated major subprogram, means all costs of development, procurement, military construction, and operations and support, without regard to funding source or management control.

(Added Pub. L. 110–417, [div. A], title VIII, §811(a)(1), Oct. 14, 2008, 122 Stat. 4520, §2430a; amended Pub. L. 111–383, div. A, title VIII, §814(a), Jan. 7, 2011, 124 Stat. 4266; Pub. L. 112–81, div. A, title IX, §912, Dec. 31, 2011, 125 Stat. 1536; Pub. L. 114–328, div. A, title VIII, §850, Dec. 23, 2016, 130 Stat. 2295; renumbered §4203 and amended Pub. L. 116–283, div. A, title XVIII, §1846(g), Jan. 1, 2021, 134 Stat. 4251; Pub. L. 117–81, div. A, title XVII, §1701(o)(6)(B)(ii), Dec. 27, 2021, 135 Stat. 2147.)

Editorial Notes

Amendments

2021—Pub. L. 116–283, §1846(g)(2), substituted "this subpart" for "this chapter" wherever appearing.

Pub. L. 116–283, §1846(g), renumbered section 2430a of this title as this section.

Subsec. (d). Pub. L. 116–283, §1846(g)(1), as amended by Pub. L. 117–81, §1701(o)(6)(B)(ii), substituted "section 4351(a)" for "section 2432(a)" in introductory provisions.

2016—Subsec. (a)(1)(B). Pub. L. 114–328, which directed substitution of "major defense acquisition program requires the delivery of two or more increments or blocks" for "major defense acquisition program to purchase satellites requires the delivery of satellites in two or more increments or blocks" in par. (1)(B), was executed by making the substitution in par. (1)(B) of subsec. (a), to reflect the probable intent of Congress.

2011—Subsec. (a)(1). Pub. L. 112–81 designated existing provisions as subpar. (A) and added subpar. (B).

Subsec. (b). Pub. L. 111–383 designated existing provisions as par. (1), redesignated former pars. (1) and (2) as subpars. (A) and (B), respectively, of par. (1), inserted "(other than as provided in paragraph (2))" before semicolon in subpar. (A), and added par. (2).

Statutory Notes and Related Subsidiaries

Effective Date of 2021 Amendment

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

Amendment by Pub. L. 116–283 effective Jan. 1, 2022, with additional provisions for delayed implementation and applicability of existing law, see section 1801(d) of Pub. L. 116–283, set out as a note preceding section 3001 of this title.

§4204. Milestone decision authority

(a) Service Acquisition Executive.—The milestone decision authority for a major defense acquisition program reaching Milestone A after October 1, 2016, shall be the service acquisition executive of the military department that is managing the program, unless the Secretary of Defense designates, under subsection (b), another official to serve as the milestone decision authority.

(b) Designation of Alternate Milestone Decision Authority.—The Secretary of Defense may designate an alternate milestone decision authority for a program with respect to which any of the following applies:

(1) Subject to subsection (f), the Secretary determines that the program is addressing a joint requirement.

(2) The Secretary determines that the program is best managed by a Defense Agency.

(3) The program has incurred a unit cost increase greater than the significant cost threshold or critical cost threshold under sections 4371 through 4375 of this title.

(4) The program is critical to a major interagency requirement or technology development effort, or has significant international partner involvement.

(5) The Secretary determines that an alternate official serving as the milestone decision authority will best provide for the program to achieve desired cost, schedule, and performance outcomes.

(1) After designating an alternate milestone decision authority under subsection (b) for a program, the Secretary of Defense may revert the position of milestone decision authority for the program back to the service acquisition executive upon request of the Secretary of the military department concerned. A decision on the request shall be made within 180 days after receipt of the request from the Secretary of the military department concerned.

(2) If the Secretary of Defense denies the request for reversion of the milestone decision authority back to the service acquisition executive, the Secretary shall report to the congressional defense committees on the basis of the Secretary's decision that an alternate official serving as milestone decision authority will best provide for the program to achieve desired cost, schedule, and performance outcomes. No such reversion is authorized after a program has incurred a unit cost increase greater than the significant cost threshold or critical cost threshold under sections 4371 through 4375 of this title, except in exceptional circumstances.

(d) Certifications relating to program requirements and funding.—For each major defense acquisition program, the Secretary of the military department concerned and the Chief of the armed force concerned shall, in each Selected Acquisition Report required under section 4351 of this title—

(1) certify that program requirements are stable and funding is adequate to meet cost, schedule, and performance objectives for the program; and

(2) identify and report to the congressional defense committees on any increased risk to the program since the last report.

(e) Documentation and Oversight.—The Secretary of Defense shall review the acquisition oversight process for major defense acquisition programs and shall—

(1) limit outside requirements for documentation to an absolute minimum on those programs where the service acquisition executive of the military department that is managing the program is the milestone decision authority; and

(2) ensure that any policies, procedures, and activities related to oversight efforts conducted outside of the military departments with regard to major defense acquisition programs shall be implemented in a manner that does not unnecessarily increase program costs or impede program schedules.

(f) Limitation on Authority to Designate Alternative MDA for Programs Addressing Joint Requirements.—The authority of the Secretary of Defense to designate an alternative milestone decision authority for a program with respect to which the Secretary determines that the program is addressing a joint requirement, as set forth in subsection (b)(1), shall apply only for a major defense acquisition program that reaches Milestone A after October 1, 2016, and before October 1, 2019.

(Added and amended Pub. L. 116–283, div. A, title XVIII, §1846(b), (f)(1)–(7), Jan. 1, 2021, 134 Stat. 4248, 4250, 4251; Pub. L. 117–81, div. A, title XVII, §1701(b)(15)(A), (o)(6)(B)(i), Dec. 27, 2021, 135 Stat. 2134, 2147.)

Editorial Notes

Codification

The text of subsec. (d) of section 2430 of this title, which was transferred to this section, redesignated as subsecs. (a) to (f) and amended by Pub. L. 116–283, §1846(f)(1), (5)(B), was based on Pub. L. 114–92, div. A, title VIII, §825(a), Nov. 25, 2015, 129 Stat. 907; Pub. L. 114–328, div. A, title VIII, §807(b), Dec. 23, 2016, 130 Stat. 2261.

Amendments

2021—Pub. L. 116–283, §1846(f)(1), transferred subsec. (d) of section 2430 of this title to this section, struck out subsec. designation, and redesignated pars. (1) to (5) as subsecs. (a) to (d), and (f), respectively.

Subsec. (a). Pub. L. 116–283, §1846(f)(2), inserted subsec. heading and substituted "under subsection (b)" for "under paragraph (2)".

Subsec. (b). Pub. L. 116–283, §1846(f)(3)(A)–(C), inserted subsec. heading, substituted "to which any of the following applies:" for "to which—" in introductory provisions, and redesignated subpars. (A) to (E) as pars. (1) to (5), respectively.

Subsec. (b)(1). Pub. L. 116–283, §1846(f)(3)(D), (G), substituted "Subject to subsection (f)" for "subject to paragraph (5)" and period for semimcolon at end.

Subsec. (b)(2). Pub. L. 116–283, §1846(f)(3)(F), (G), substituted "The Secretary" for "the Secretary" and period for semicolon at end.

Subsec. (b)(3). Pub. L. 116–283, §1846(f)(3)(E)–(G), substituted "The program" for "the program", "sections 4371 through 4375" for "section 2433" and period for semicolon at end.

Subsec. (b)(4). Pub. L. 116–283, §1846(f)(3)(F), (H), substituted "The program" for "the program" and period at end for "; or".

Subsec. (b)(5). Pub. L. 116–283, §1846(f)(3)(F), substituted "The Secretary" for "the Secretary".

Subsec. (c). Pub. L. 116–283, §1846(f)(4), inserted subsec. heading, redesignated subpars. (A) and (B) as pars. (1) and (2), respectively, realigned margins, and substituted "under subsection (b)" for "under paragraph (2)" in par. (1) and "sections 4371 through 4375" for "section 2433" in par. (2).

Subsec. (d). Pub. L. 116–283, §1846(f)(5), as amended by Pub. L. 117–81, §1701(o)(6)(B)(i), inserted subsec. heading, struck out subpar. (A) designation before "For each", substituted "under section 4351 of this title—" for "under section 2432 of this title,", inserted par. (1) designation before "certify that", substituted "the program; and" for "the program and", inserted par. (2) designation before "identify and report", and redesignated subpar. (B) as subsec. (e).

Subsec. (e). Pub. L. 116–283, §1846(f)(6), as amended by Pub. L. 117–81, §1701(b)(15)(A), inserted subsec. heading, substituted "programs and shall—" for "programs and shall", inserted par. (1) designation before "limit outside requirements", substituted "decision authority; and" for "decision authority and", and inserted par. (2) designation before "ensure that".

Pub. L. 116–283, §1846(f)(5)(B), redesignated subpar. (B) of subsec. (d) as subsec. (e).

Subsec. (f). Pub. L. 116–283, §1846(f)(7), inserted subsec. heading and substituted "in subsection (b)(1)" for "in paragraph (2)(A)".

Statutory Notes and Related Subsidiaries

Effective Date of 2021 Amendment

Effective Date

§4205. Weapon systems for which procurement funding requested in budget: development and procurement schedules

(a) The Secretary of Defense shall submit to Congress each calendar year, not later than 45 days after the President submits the budget to Congress under section 1105 of title 31, budget justification documents regarding development and procurement schedules for each weapon system for which fund authorization is required by section 114(a) of this title, and for which any funds for procurement are requested in that budget. The documents shall include data on operational testing and evaluation for each weapon system for which funds for procurement are requested (other than funds requested only for the procurement of units for operational testing and evaluation, or long lead-time items, or both). A weapon system shall also be included in the annual documents required under this subsection in each year thereafter until procurement of that system has been completed or terminated, or the Secretary of Defense certifies, in writing, that such inclusion would not serve any useful purpose and gives his reasons therefor.

(b) Any documents required to be submitted under subsection (a) shall include detailed and summarized information with respect to each weapon system covered and shall specifically include each of the following:

(1) The development schedule, including estimated annual costs until development is completed.

(2) The planned procurement schedule, including the best estimate of the Secretary of Defense of the annual costs and units to be procured until procurement is completed.

(3) To the extent required by the second sentence of subsection (a), the result of all operational testing and evaluation up to the time of the submission of the documents, or, if operational testing and evaluation has not been conducted, a statement of the reasons therefor and the results of such other testing and evaluation as has been conducted.

(4)(A) The most efficient production rate, the most efficient acquisition rate, and the minimum sustaining rate, consistent with the program priority established for such weapon system by the Secretary concerned.

(B) In this paragraph:

(i) The term "most efficient production rate" means the maximum rate for each budget year at which the weapon system can be produced with existing or planned plant capacity and tooling, with one shift a day running for eight hours a day and five days a week.

(ii) The term "minimum sustaining rate" means the production rate for each budget year that is necessary to keep production lines open while maintaining a base of responsive vendors and suppliers.

(c) In the case of any weapon system for which procurement funds have not been previously requested and for which funds are first requested by the President in any fiscal year after the Budget for that fiscal year has been submitted to Congress, the same documentation requirements shall be applicable to that system in the same manner and to the same extent as if funds had been requested for that system in that budget.

(Added Pub. L. 93–155, title VIII, §803(a), Nov. 16, 1973, 87 Stat. 614, §139, §2431; amended Pub. L. 94–106, title VIII, §805, Oct. 7, 1975, 89 Stat. 538; Pub. L. 96–513, title V, §511(5), Dec. 12, 1980, 94 Stat. 2920; Pub. L. 97–86, title IX, §909(c), Dec. 1, 1981, 95 Stat. 1120; Pub. L. 97–258, §3(b)(1), Sept. 13, 1982, 96 Stat. 1063; Pub. L. 98–525, title XIV, §1405(3), Oct. 19, 1984, 98 Stat. 2621; renumbered §2431 and amended Pub. L. 99–433, title I, §§101(a)(5), 110(d)(12), (g)(6), Oct. 1, 1986, 100 Stat. 995, 1003, 1004; Pub. L. 100–180, div. A, title XIII, §1314(a)(1), Dec. 4, 1987, 101 Stat. 1175; Pub. L. 101–510, div. A, title XIII, §1301(13), title XIV, §1484(f)(3), Nov. 5, 1990, 104 Stat. 1668, 1717; Pub. L. 103–355, title III, §3001, Oct. 13, 1994, 108 Stat. 3327; Pub. L. 104–106, div. D, title XLIII, §4321(b)(18), Feb. 10, 1996, 110 Stat. 673; renumbered §4205 and amended Pub. L. 116–283, div. A, title XVIII, §1846(h), Jan. 1, 2021, 134 Stat. 4251.)

Editorial Notes

Prior Provisions

Provisions similar to those in this section were contained in Pub. L. 92–156, title V, §506, Nov. 17, 1971, 85 Stat. 429, prior to repeal by Pub. L. 93–155, §803(b)(2).

Amendments

2021—Pub. L. 116–283, §1846(h)(2), amended section catchline generally. Prior to amendment, section catchline read as follows: "Weapons development and procurement schedules".

Pub. L. 116–283, §1846(h)(1), renumbered section 2431 of this title as this section.

1996—Subsec. (b). Pub. L. 104–106, §4321(b)(18)(A)(i), substituted "Any documents" for "Any report" in first sentence.

Subsec. (b)(3). Pub. L. 104–106, §4321(b)(18)(A)(ii), substituted "the documents" for "the report".

Subsec. (c). Pub. L. 104–106, §4321(b)(18)(B), substituted "documentation" for "reporting".

1994—Subsec. (a). Pub. L. 103–355, §3001(a), substituted "not later than 45 days after" for "at the same time" and "budget justification documents" for "a written report" in first sentence and "documents" for "report" in second and third sentences.

Subsec. (b). Pub. L. 103–355, §3001(b)(1), substituted "include each of the following:" for "include—" in introductory provisions.

Subsec. (b)(1) to (3). Pub. L. 103–355, §3001(b)(2)–(4), capitalized first letter of first word in pars. (1) to (3) and substituted period for semicolon at end of pars. (1) and (2) and period for "; and" at end of par. (3).

Subsec. (b)(4). Pub. L. 103–355, §3001(b)(5) amended par. (4) generally. Prior to amendment, par. (4) read as follows: "the most efficient production rate and the most efficient acquisition rate consistent with the program priority established for such weapon system by the Secretary concerned."

1990—Subsec. (b). Pub. L. 101–510, §1484(f)(3), substituted "covered and shall specifically include" for "covered, and specifically include, but not be limited to" in introductory provisions.

Pub. L. 101–510, §1301(13), redesignated subsec. (c) as (b), struck out "or (b)" after "under subsection (a)", and struck out former subsec. (b) which read as follows: "The Secretary of Defense shall submit a supplemental report to Congress not less than 30, or more than 90, days before the award of any contract, or the exercise of any option in a contract, for the procurement of any such weapon system (other than procurement of units for operational testing and evaluation, or long lead-time items, or both), unless—

"(1) the contractor or contractors for that system have not yet been selected and the Secretary of Defense determines that the submission of that report would adversely affect the source selection process and notifies Congress in writing, prior to such award, of that determination, stating his reasons therefor; or

"(2) the Secretary of Defense determines that the submission of that report would otherwise adversely affect the vital security interests of the United States and notifies Congress in writing of that determination at least 30 days prior to the award, stating his reasons therefor."

Subsecs. (c), (d). Pub. L. 101–510, §1301(13)(C), redesignated subsecs. (c) and (d) as (b) and (c), respectively.

1987—Pub. L. 100–180 made technical amendment to directory language of Pub. L. 99–433, §101(a)(5). See 1986 Amendment note below.

1986—Pub. L. 99–433, §101(a)(5), as amended by Pub. L. 100–180, §1314(a)(1), renumbered section 139 of this title as section 2431.

Pub. L. 99–433, §110(d)(12), substituted "Weapons development and procurement schedules" for "Secretary of Defense: weapons development and procurement schedules for armed forces; reports; supplemental reports" in section catchline.

Subsec. (a). Pub. L. 99–433, §110(g)(6), substituted "section 114(a)" for "section 138(a)".

1984—Subsec. (b). Pub. L. 98–525, §1405(3)(B), substituted "30" for "thirty" and "90" for "ninety" in introductory text.

Subsec. (b)(2). Pub. L. 98–525, §1405(3)(A), substituted "30" for "thirty".

1982—Subsec. (a). Pub. L. 97–258 substituted "section 1105 of title 31" for "section 201 of the Budget and Accounting Act, 1921 (31 U.S.C. 11)".

1981—Subsec. (c)(4). Pub. L. 97–86 added par. (4).

1980—Subsec. (a). Pub. L. 96–513 substituted "section 201 of the Budget and Accounting Act, 1921 (31 U.S.C. 11)" for "section 11 of title 31".

1975—Subsec. (b). Pub. L. 94–106 substituted "or more than ninety, days before" for "or more than sixty, days before".

Statutory Notes and Related Subsidiaries

Effective Date of 2021 Amendment

Effective Date of 1996 Amendment

For effective date and applicability of amendment by Pub. L. 104–106, see section 4401 of Pub. L. 104–106, set out as a note under section 2220 of this title.

Effective Date of 1987 Amendment

Amendment by Pub. L. 100–180 applicable as if included in enactment of the Goldwater-Nichols Department of Defense Reorganization Act of 1986, Pub. L. 99–433, see section 1314(e) of Pub. L. 100–180, set out as a note under section 743 of this title.

Effective Date of 1980 Amendment

Amendment by Pub. L. 96–513 effective Dec. 12, 1980, see section 701(b)(3) of Pub. L. 96–513, set out as a note under section 101 of this title.

Transition of Ballistic Missile Defense Programs to Military Departments

Pub. L. 115–91, div. A, title XVI, §1676(b), Dec. 12, 2017, 131 Stat. 1772, as amended by Pub. L. 115–232, div. A, title XVI, §1679, Aug. 13, 2018, 132 Stat. 2161; Pub. L. 116–283, div. A, title XVI, §1643, Jan. 1, 2021, 134 Stat. 4062; Pub. L. 117–81, div. A, title XVI, §1663, Dec. 27, 2021, 135 Stat. 2104; Pub. L. 117–263, div. A, title XVI, §1655, Dec. 23, 2022, 136 Stat. 2950, directed the Secretary of Defense to transfer, not later than Oct. 1, 2023—except that such requirement to transfer would terminate 60 days after the Secretary submits the report under section 1675(b) of Pub. L. 117–81 (135 Stat. 2113)—the acquisition authority and the total obligational authority for each missile defense program that has received Milestone C approval or equivalent approval as of such date from the Missile Defense Agency to a military department, and directed the Secretary to submit to the congressional defense committees, not later than one year after Dec. 12, 2017, a report on the plans for such transition of missile defense programs.

Development of Persistent Space-Based Sensor Architecture

Pub. L. 115–91, div. A, title XVI, §1683, Dec. 12, 2017, 131 Stat. 1777, as amended by Pub. L. 115–232, div. A, title XVI, §1675(a)–(c), (d)(2), Aug. 13, 2018, 132 Stat. 2159, 2160; Pub. L. 116–92, div. A, title XVI, §1683, Dec. 20, 2019, 133 Stat. 1782; Pub. L. 116–283, div. A, title XVI, §1645(h), formerly §1645(g), Jan. 1, 2021, 134 Stat. 4064, renumbered §1645(h), Pub. L. 117–81, div. A, title XVI, §1662(b)(1), Dec. 27, 2021, 135 Stat. 2103, directed the Director of the Missile Defense Agency, in coordination with the Commander of the Air Force Space Command and the Commander of the United States Strategic Command, beginning fiscal year 2019, to develop and rigorously test a highly reliable and cost-effective persistent space-based sensor architecture capable of supporting the ballistic missile defense system, to ensure that the sensor architecture developed is compatible with efforts of the Defense Advanced Research Projects Agency relating to space-based sensors for missile defense, to submit to Congress a report on the available options not later than January 31, 2019, to submit to Congress a plan not later than one year after December 12, 2017, and to submit to Congress an update to the plan not later than 90 days after December 20, 2019.

Boost Phase Ballistic Missile Defense

Pub. L. 115–91, div. A, title XVI, §1685, Dec. 12, 2017, 131 Stat. 1781, as amended by Pub. L. 115–232, div. A, title XVI, §1676, Aug. 13, 2018, 132 Stat. 2160, directed the Secretary of Defense to ensure that an effective interim kinetic or directed energy boost phase ballistic missile defense capability would be available for initial operational deployment as soon as practicable, directed the Secretary to submit to the congressional defense committees, together with the budget submitted to Congress for fiscal year 2019, a plan to achieve such capability, directed the Director of the Missile Defense Agency, beginning fiscal year 2019, to carry out a program to develop kinetic boost phase intercept capabilities, required an independent study on the feasibility of providing an initial or demonstrated boost phase capability using unmanned aerial vehicles and kinetic interceptors, and directed the Secretary of Defense to submit to the congressional defense committees a report on such study not later than July 31, 2019.

Ground-Based Interceptor Capability, Capacity, and Reliability

Pub. L. 115–91, div. A, title XVI, §1686, Dec. 12, 2017, 131 Stat. 1781, authorized the Secretary of Defense to increase the number of the ground-based interceptors of the United States and to advance missile defense technologies to improve the capability and reliability of those elements of the ballistic missile defense system, and directed the Director of the Missile Defense Agency to submit to the congressional defense committees, not later than 90 days after the date on which the Ballistic Missile Defense Review commenced in 2017 is published, a report on those efforts.

Plan for Development of Space-Based Ballistic Missile Intercept Layer

Pub. L. 115–91, div. A, title XVI, §1688, Dec. 12, 2017, 131 Stat. 1783, as amended by Pub. L. 115–232, div. A, title XVI, §1680, Aug. 13, 2018, 132 Stat. 2161; Pub. L. 116–92, div. A, title XVI, §1682, Dec. 20, 2019, 133 Stat. 1782, provided that:

"(a) Development.—Subject to the availability of appropriations, the Director of the Missile Defense Agency shall develop a space-based ballistic missile intercept layer to the ballistic missile defense system that is—

"(1) regionally focused;

"(2) capable of providing boost-phase defense; and

"(3) achieves an operational capability at the earliest practicable date.

"(b) Space-based Ballistic Missile Intercept Layer Plan.—Not later than one year after the date of the enactment of this Act [Dec. 12, 2017], the Director shall submit to the appropriate congressional committees a plan to carry out subsection (a) during the 10-year period following the date of the plan. Such plan shall include the following:

"(1) A concept definition phase consisting of multiple awarded contracts to identify feasible solutions consistent with architectural principles, performance goals, and price points established by the Director, such as contracts relating to—

"(A) refined requirements;

"(B) conceptual designs;

"(C) technology readiness assessments;

"(D) critical technical and operational issues;

"(E) cost, schedule, performance estimates; and

"(F) risk reduction plans.

"(2) A technology risk reduction phase consisting of up to three competitively awarded contracts focused on maturing, integrating, and characterizing key technologies, algorithms, components, and subsystems, such as contracts relating to—

"(A) refined concepts and designs;

"(B) engineering trade studies;

"(C) medium-to-high fidelity digital representations of the space-based ballistic missile intercept weapon system; and

"(D) a proposed integration and test sequence that could potentially lead to a live-fire boost phase intercept during fiscal year 2022, if the technology has reached sufficient maturity and is economically viable.

"(3) During the technology risk reduction phase, contractors will define proposed demonstrations to a preliminary design review level prior to a technology development phase down-select.

"(4) A technology development phase consisting of two competitively awarded contracts to mature the preferred space-based ballistic missile intercept weapon system concepts and to potentially conduct a live-fire boost phase intercept fly-off during fiscal year 2022, if the technology has reached sufficient maturity and is economically viable, with brassboard hardware and prototype software on a path to the operational goal.

"(5) A concurrent space-based ballistic missile intercept weapon system fire control test bed activity that incrementally incorporates modeling and simulation elements, real-world data, hardware, algorithms, and systems to evaluate with increasing confidence the performance of evolving designs and concepts of such weapon system from target detection to intercept.

"(6) Any other matters the Director determines appropriate.

"(c) Appropriate Congressional Committees Defined.—In this section, the term 'appropriate congressional committees' means—

"(1) the congressional defense committees [Committees on Armed Services and Appropriations of the Senate and the House of Representatives]; and

"(2) the Select Committee on Intelligence of the Senate and the Permanent Select Committee on Intelligence of the House of Representatives."

Designation of Department of Defense Senior Official With Principal Responsibility for Directed Energy Weapons

Pub. L. 114–328, div. A, title II, §219, Dec. 23, 2016, 130 Stat. 2053, as amended by Pub. L. 115–91, div. A, title II, §215, Dec. 12, 2017, 131 Stat. 1326; Pub. L. 115–232, div. A, title II, §§212, 237, Aug. 13, 2018, 132 Stat. 1675, 1695; Pub. L. 116–283, div. A, title II, §215, Jan. 1, 2021, 134 Stat. 3458, provided that:

"(a) Designation of Senior Official.—

"(1) In general.—The Under Secretary of Defense for Research and Engineering shall serve as the official with principal responsibility for the development and demonstration of directed energy weapons for the Department.

"(2) Development of strategic plan.—

"(A) In general.—The senior official designated under paragraph (1) shall develop a detailed strategic plan to develop, mature, and transition directed energy technologies to acquisition programs of record.

"(B) Roadmap.—Such strategic plan shall include a strategic roadmap for the development and fielding of directed energy weapons and key enabling capabilities for the Department, identifying and coordinating efforts across military departments to achieve overall joint mission effectiveness.

"(3) Acceleration of development and fielding of directed energy weapons capabilities.—

"(A) In general.—To the degree practicable, the senior official designated under paragraph (1) shall use the flexibility of the policies of the Department in effect on the day before the date of the enactment of this Act [Dec. 23, 2016], or any successor policies, to accelerate the development and fielding of directed energy capabilities.

"(B) Engagement.—The Secretary shall use the flexibility of the policies of the Department in effect on the day before the date of the enactment of this Act [Dec. 23, 2016], or any successor policies, to ensure engagement with defense and private industries, research universities, and unaffiliated, nonprofit research institutions.

"(4) Advice for exercises and demonstrations.—The senior official designated under paragraph (1) shall, to the degree practicable, provide technical advice and support to entities in the Department of Defense and the military departments conducting exercises or demonstrations with the purpose of improving the capabilities of or operational viability of technical capabilities supporting directed energy weapons, including supporting military utility assessments of the relevant cost and benefits of directed energy weapon systems.

"(5) Support for development of requirements.—The senior official designated under paragraph (1) shall coordinate with the military departments, Defense Agencies, and the Joint Directed Energy Transition Office to define requirements for directed energy capabilities that address the highest priority warfighting capability gaps of the Department.

"(6) Availability of information.—The Secretary of Defense shall ensure that the senior official designated under paragraph (1) has access to such information on programs and activities of the military departments and other defense agencies as the Secretary considers appropriate to coordinate departmental directed energy efforts.

"(b) Joint Directed Energy Transition Office.—

"(1) Redesignation.—The High Energy Laser Joint Technology Office of the Department of Defense is hereby redesignated as the 'Joint Directed Energy Transition Office' (in this subsection referred to as the 'Office'), and shall report to the official designated under subsection (a)(1).

"(2) Additional functions.—In addition to the functions and duties of the Office in effect on the day before the date of the enactment of this Act [Dec. 23, 2016], the Office shall assist the senior official designated under paragraph (1) of subsection (a) in carrying out paragraphs (2) through (5) of such subsection.

"(3) Funding.—The Secretary may make available such funds to the Office for basic research, applied research, advanced technology development, prototyping, studies and analyses, and organizational support as the Secretary considers appropriate to support the efficient and effective development of directed energy systems and technologies, including high-powered microwaves, and transition of those systems and technologies into acquisition programs or operational use.

"(c) Prototyping and Demonstration Program.—

"(1) Establishment.—The Secretary of Defense, acting through the Under Secretary, shall establish a program on the prototyping and demonstration of directed energy weapon systems to build and maintain the military superiority of the United States by—

"(A) accelerating, when feasible, the fielding of directed energy weapon prototypes that would help counter technological advantages of potential adversaries of the United States; and

"(B) supporting the military departments, the combatant commanders, and other relevant defense agencies and entities in developing prototypes and demonstrating operational utility of high energy lasers and high powered microwave weapon systems.

"(2) Guidelines.—(A) Not later than 180 days after the date of the enactment of the National Defense Authorization Act for Fiscal Year 2018 [Dec. 12, 2017], the Under Secretary shall issue guidelines for the operation of the program established under paragraph (1), including the following:

"(i) Criteria required for an application for funding by a military department, defense agency or entity, or a combatant command.

"(ii) The priorities, based on validated requirements or capability gaps, for fielding prototype directed energy weapon system technologies developed by research funding of the Department or industry.

"(iii) Criteria for evaluation of an application for funding or changes to policies or acquisition and business practices by such a department, agency, or command for purposes of improving the effectiveness and efficiency of the program.

"(B) Funding for a military department, defense agency, or combatant command under the program established under paragraph (1) may only be available for advanced technology development, prototyping, and demonstrations in which the Department of Defense maintains management of the technical baseline and a primary emphasis on technology transition and evaluating military utility to enhance the likelihood that the particular directed energy weapon system will meet the Department end user's need.

"(3) Applications for funding.—(A) Not less frequently than once each year, the Under Secretary shall solicit from the heads of the military departments, the defense agencies, and the combatant commands applications for funding under the program established under paragraph (1) to be used to enter into contracts, cooperative agreements, or other transaction agreements entered into pursuant to section 2371b of title 10, United States Code [now 10 U.S.C. 4022], with appropriate entities for the prototyping or commercialization of technologies.

"(B) Nothing in this section shall be construed to require any official of the Department of Defense to provide funding under the program to any congressional earmark as defined pursuant to clause 9 of rule XXI of the Rules of the House of Representatives or any congressionally directed spending item as defined pursuant to paragraph 5 of rule XLIV of the Standing Rules of the Senate.

"(4) Under secretary defined.—In this subsection, the term 'Under Secretary' means the Under Secretary of Defense for Research and Engineering in the Under Secretary's capacity as the official with principal responsibility for the development and demonstration of directed energy weapons pursuant to subsection (a)(1).

"(d) Directed Energy Working Group.—

"(1) In general.—Not later than 60 days after the date of the enactment of the [William M. (Mac) Thornberry] National Defense Authorization Act for fiscal year [sic] 2021 [Jan. 1, 2021], the Secretary of Defense shall establish a working group to be known as the 'Directed Energy Working Group'.

"(2) Responsibilities.—The Directed Energy Working Group shall—

"(A) analyze and evaluate the current and planned directed energy programs of each of the military departments;

"(B) make recommendations to the Secretary of Defense—

"(i) describing how memoranda of understanding may be used to coordinate the directed energy activities conducted by the Department of Defense using amounts authorized to be appropriated for research, development, test, and evaluation; and

"(ii) proposing the establishment of specific memoranda of understanding between individual organizations and elements of the Department of Defense to facilitate such coordination;

"(C) identify methods of quickly fielding directed energy capabilities and programs; and

"(D) develop a compendium on the effectiveness of directed energy weapon systems and integrate the compendium into an overall Joint Effectiveness Manual under the guidance from the Joint Technical Coordination Group for Munitions Effectiveness.

"(3) Head of working group.—The head of the Directed Energy Working Group shall be the Under Secretary of Defense for Research and Engineering or the designee of the Under Secretary.

"(4) Membership.—The members of the Directed Energy Working Group shall be appointed as follows:

"(A) One member from each military department, appointed by the Secretary of the military department concerned.

"(B) One member appointed by the Under Secretary of Defense for Research and Engineering.

"(C) One member appointed by the Under Secretary of Defense for Acquisition and Sustainment.

"(D) One member appointed by the Director of the Strategic Capabilities Office of the Department of Defense.

"(E) One member appointed by the Director of the Defense Advanced Research Projects Agency.

"(F) One member appointed by the Director of Operational Test and Evaluation.

"(G) One member appointed by the Director of the Missile Defense Agency.

"(H) Such other members as may be appointed by the Secretary of Defense from among individuals serving in the Department of Defense.

"(5) Deadline for appointment.—Members of the Directed Energy Working Group shall be appointed not later than 30 days after the date of the establishment of the working group under paragraph (1).

"(6) Briefings to congress.—Not later than 180 days after the date of the enactment of the William M. (Mac) Thornberry National Defense Authorization Act for Fiscal Year 2021 [Jan. 1, 2021], and not less frequently than once every 180 days thereafter, the Directed Energy Working Group shall provide to the congressional defense committees [Committees on Armed Services and Appropriations of the Senate and the House of Representatives] a briefing on the progress of each directed energy program that is being adopted or fielded by the Department of Defense.

"(7) Termination.—The Directed Energy Working Group established under this subsection shall terminate 4 years after the date of the enactment of the William M. (Mac) Thornberry National Defense Authorization Act for Fiscal Year 2021 [Jan. 1, 2021]."

National Missile Defense Policy

Pub. L. 116–92, div. A, title XVI, §1681(b), Dec. 20, 2019, 133 Stat. 1781, provided that: "Not later than the date on which the President submits to Congress the annual budget request of the President for fiscal year 2021 pursuant to section 1105 of title 31, United States Code, the Secretary of Defense shall, as the Secretary considers appropriate, redesignate all strategies, policies, programs, and systems under the jurisdiction of the Secretary to reflect that missile defense programs of the United States defend against ballistic, cruise, and hypersonic missiles in all phases of flight."

Pub. L. 114–328, div. A, title XVI, §1681(a), Dec. 23, 2016, 130 Stat. 2623, as amended by Pub. L. 116–92, div. A, title XVI, §1681(a), Dec. 20, 2019, 133 Stat. 1781; Pub. L. 118–31, div. A, title XVI, §1663, Dec. 22, 2023, 137 Stat. 603, provided that: "It is the policy of the United States—

"(1) to research, develop, test, procure, deploy, and sustain, with funding subject to the annual authorization of appropriations for National Missile Defense, systems that provide effective, layered missile defense capabilities to defeat increasingly complex missile threats in all phases of flight; and

"(2) to rely on nuclear deterrence to address more sophisticated and larger quantity near-peer intercontinental missile threats to the homeland of the United States."

Designation of Certain Acquisition Authority

Pub. L. 114–328, div. A, title XVI, §1684(e), (f), Dec. 23, 2016, 130 Stat. 2627, provided that:

"(e) Designation Required.—

"(1) Authority.—Not later than March 31, 2018, the Secretary of Defense shall designate a military department or Defense Agency with acquisition authority with respect to—

"(A) the capability to defend the homeland from cruise missiles; and

"(B) left-of-launch ballistic missile defeat capability.

"(2) Discretion.—The Secretary may designate a single military department or Defense Agency with the acquisition authority described in paragraph (1) or designate a separate military department or Defense Agency for each function specified in such paragraph.

"(3) Validation.—In making a designation under paragraph (1), the Secretary shall include a description of the manner in which the military requirements for such capabilities will be validated.

"(f) Definitions.—In this section:

"(1) The term 'Defense Agency' has the meaning given that term in section 101(a)(11) of title 10, United States Code.

"(2) The term 'intelligence community' has the meaning given that term in section 3 of the National Security Act of 1947 (50 U.S.C. 3003)."

Technical Authority for Integrated Air and Missile Defense Activities and Programs

Pub. L. 114–328, div. A, title XVI, §1686(a), Dec. 23, 2016, 130 Stat. 2628, provided that:

"(1) In general.—The Director of the Missile Defense Agency is the technical authority of the Department of Defense for integrated air and missile defense activities and programs, including joint engineering and integration efforts for such activities and programs, including with respect to defining and controlling the interfaces of such activities and programs and the allocation of technical requirements for such activities and programs.

"(2) Detailees.—

"(A) In carrying out the technical authority under paragraph (1), the Director may seek to have staff detailed to the Missile Defense Agency from the Joint Functional Component Command for Integrated Missile Defense and the Joint Integrated Air and Missile Defense Organization in a number the Director determines necessary in accordance with subparagraph (B).

"(B) In detailing staff under subparagraph (A) to carry out the technical authority under paragraph (1), the total number of staff, including detailees, of the Missile Defense Agency who carry out such authority may not exceed the number that is twice the number of such staff carrying out such authority as of January 1, 2016."

Hypersonic Defense Capability Development

Pub. L. 114–328, div. A, title XVI, §1687, Dec. 23, 2016, 130 Stat. 2629, designated the Director of the Missile Defense Agency as the executive agent for the Department of Defense for the development of a capability by the United States to counter hypersonic boost-glide vehicle capabilities and conventional prompt strike capabilities that may be employed against the United States or its allies and directed the Director to establish a program to develop such hypersonic defense capability by not later than Mar. 31, 2017.

Required Testing by Missile Defense Agency of Ground-Based Midcourse Defense Element of Ballistic Missile Defense System

Pub. L. 114–328, div. A, title XVI, §1689, Dec. 23, 2016, 130 Stat. 2631, as amended by Pub. L. 116–92, div. A, title IX, §902(97), title XVI, §1684, Dec. 20, 2019, 133 Stat. 1555, 1783; Pub. L. 117–81, div. A, title XVI, §1668(d), Dec. 27, 2021, 135 Stat. 2107, provided that:

"(a) Testing Required.—Except as provided in subsection (c), not less frequently than once each fiscal year, the Director of the Missile Defense Agency shall administer a flight test of the ground-based midcourse defense element of the ballistic missile defense system. Beginning not later than five years after the date on which the next generation interceptor achieves initial operational capability, the Director shall ensure that such flight tests include the next generation interceptor.

"(b) Requirements.—The Director shall ensure that each test carried out under subsection (a) provides for one or more of the following:

"(1) The validation of technical improvements made to increase system performance and reliability.

"(2) The evaluation of the operational effectiveness of the ground-based midcourse defense element of the ballistic missile defense system.

"(3) The use of threat-representative targets and critical engagement conditions, including the use of threat-representative countermeasures.

"(4) The evaluation of new configurations of interceptors before they are fielded.

"(5) The satisfaction of the 'fly before buy' acquisition approach for new interceptor components or software.

"(6) The evaluation of the interoperability of the ground-based midcourse defense element with other elements of the ballistic missile defense systems.

"(c) Exceptions.—The Director may forgo a test under subsection (a) in a fiscal year under one or more of the following conditions:

"(1) Such a test would jeopardize national security.

"(2) Insufficient time considerations between post-test analysis and subsequent pre-test design.

"(3) Insufficient funding.

"(4) An interceptor is unavailable.

"(5) A target is unavailable or is insufficiently representative of threats.

"(6) The test range or necessary test assets are unavailable.

"(7) Inclement weather.

"(8) Any other condition the Director considers appropriate.

"(d) Certification.—Not later than 45 days after forgoing a test for a condition or conditions under subsection (c)(8), the Under Secretary of Defense for Research and Engineering shall submit to the congressional defense committees [Committees on Armed Services and Appropriations of the Senate and the House of Representatives] a certification setting forth the condition or conditions that caused the test to be forgone under such subsection.

"(e) Report.—Not later than 45 days after forgoing a test for any condition specified in subsection (c), the Director shall submit to the congressional defense committees a report setting forth the rationale for forgoing the test and a plan to restore an intercept flight test in the Integrated Master Test Plan of the Missile Defense Agency. In the case of a test forgone for a condition or conditions under subsection (c)(8), the report required by this subsection is in addition to the certification required by subsection (d)."

Pilot Program on Loss of Unclassified, Controlled Technical Information

Pub. L. 114–328, div. A, title XVI, §1692, Dec. 23, 2016, 130 Stat. 2636, provided that:

"(a) Pilot Program.—Beginning not later than 90 days after the date of the enactment of this Act [Dec. 23, 2016], the Director of the Missile Defense Agency shall carry out a pilot program to implement improvements to the data protection options in the programs of the Missile Defense Agency (including the contractors of the Agency), particularly with respect to unclassified, controlled technical information and controlled unclassified information.

"(b) Priority.—In carrying out the pilot program under subsection (a), the Director shall give priority to implementing data protection options that are used by the private sector and have been proven successful.

"(c) Duration.—The Director shall carry out the pilot program under subsection (a) for not more than a 5-year period.

"(d) Notification.—Not later than 30 days before the date on which the Director commences the pilot program under subsection (a), the Director shall notify the congressional defense committees [Committees on Armed Services and Appropriations of the Senate and the House of Representatives], the Committee on Oversight and Government Reform [now Committee on Oversight and Accountability] of the House of Representatives, and the Committee on Homeland Security and Governmental Affairs of the Senate of—

"(1) the data protection options that the Director is considering to implement under the pilot program and the potential costs of such options; and

"(2) such option that is the preferred option of the Director.

"(e) Data Protection Options.—In this section, the term 'data protection options' means actions to improve processes, practices, and systems that relate to the safeguarding, hygiene, and data protection of information."

Plan on Full Integration and Exploitation of Overhead Persistent Infrared Capability

Pub. L. 114–92, div. A, title XVI, §1618, Nov. 25, 2015, 129 Stat. 1108, as amended by Pub. L. 116–92, div. A, title XVI, §1604, Dec. 20, 2019, 133 Stat. 1723, provided that:

"(a) Plan.—Not later than 180 days after the date of the enactment of this Act [Nov. 25, 2015], the Commander of the United States Strategic Command and the Director of Cost Assessment and Program Evaluation, in coordination with the Director of National Intelligence, shall jointly submit to the appropriate congressional committees a plan for the integration of overhead persistent infrared capabilities to support the missions specified in subsection (b)(1).

"(b) Elements.—The plan under subsection (a) shall—

"(1) ensure that all overhead persistent infrared capabilities of the United States, including such capabilities that are planned to be developed, are integrated to allow for such capabilities to be exploited to support the requirements of the missions of the Department of Defense relating to—

"(A) strategic and theater missile warning;

"(B) ballistic and cruise missile defense, including with respect to missile tracking, fire control, and kill assessment;

"(C) technical intelligence supporting missile warning;

"(D) battlespace awareness;

"(E) other technical intelligence;

"(F) civil and environmental missions, including with respect to the collection of weather data; and

"(G) battle damage assessments; and

"(2) establish clear benchmarks by which to establish acquisition plans, manning, and budget requirements.

"(c) Annual Determination.—The Secretary of Defense shall include, together with, or not later than 30 days after, the budget justification materials submitted to Congress in support of the budget of the Department of Defense for each of fiscal years 2021 through 2028 (as submitted with the budget of the President under section 1105(a) of title 31, United States Code), a written determination of how the plan under subsection (a) is being implemented.

"(d) Appropriate Congressional Committees Defined.—In this section, the term 'appropriate congressional committees' means—

"(1) the congressional defense committees [Committees on Armed Services and Appropriations of the Senate and the House of Representatives]; and

"(2) the Permanent Select Committee on Intelligence of the House of Representatives and the Select Committee on Intelligence of the Senate."

Integration and Interoperability of Air and Missile Defense Capabilities of the United States

Pub. L. 114–92, div. A, title XVI, §1675, Nov. 25, 2015, 129 Stat. 1131, as amended by Pub. L. 116–92, div. A, title IX, §902(69), Dec. 20, 2019, 133 Stat. 1551; Pub. L. 116–283, div. A, title X, §1081(f)(3), Jan. 1, 2021, 134 Stat. 3875, provided that:

"(a) Interoperability of Missile Defense Systems.—The Vice Chairman of the Joint Chiefs of Staff and the chairman of the Missile Defense Executive Board (pursuant to section 1681(c) of the John S. McCain National Defense Authorization Act for Fiscal Year 2019 (Public Law 115–232; 132 Stat. 2162)), acting through the Missile Defense Executive Board, shall ensure the interoperability and integration of the covered air and missile defense capabilities of the United States, including by carrying out operational testing.

"(b) Annual Demonstration.—

"(1) Requirement.—Except as provided by paragraph (2), the Director of the Missile Defense Agency and the Secretary of the Army shall jointly ensure that not less than one intercept or flight test is carried out each year that demonstrates interoperability and integration among the covered air and missile defense capabilities of the United States.

"(2) Waiver.—The Director and the Secretary may waive the requirement in paragraph (1) with respect to an intercept or flight test carried out during the year covered by the waiver if the chairman of the Missile Defense Executive Board—

"(A) determines that such waiver is necessary for such year; and

"(B) submits to the congressional defense committees [Committees on Armed Services and Appropriations of the Senate and the House of Representatives] notification of such waiver, including an explanation for how such waiver will not negatively affect demonstrating the interoperability and integration among the covered air and missile defense capabilities of the United States.

"(c) Definitions.—In this section, the term 'covered air and missile defense capabilities' means Patriot air and missile defense batteries and associated interceptors and systems, Aegis ships and associated ballistic missile interceptors (including Aegis Ashore capability), AN/TPY–2 radars, or terminal high altitude area defense batteries and interceptors."

[Pub. L. 116–283, div. A, title X, §1081(f), Jan. 1, 2021, 134 Stat. 3874, provided that the amendment made by section 1081(f)(3) of Pub. L. 116–283 to section 1675 of Pub. L. 114–92, set out above, is effective as of Dec. 23, 2016, and as if included in Pub. L. 114–92 as enacted.]

Boost Phase Defense System

Pub. L. 114–92, div. A, title XVI, §1680, Nov. 25, 2015, 129 Stat. 1137, directed the Secretary of Defense to develop and field an airborne boost phase defense system by not later than fiscal year 2025, and to submit a report on its efforts to the congressional defense committees not later than 120 days after Nov. 25, 2015.

Development and Deployment of Multiple-Object Kill Vehicle for Missile Defense of the United States Homeland

Pub. L. 114–92, div. A, title XVI, §1681, Nov. 25, 2015, 129 Stat. 1138, directed the Director of the Missile Defense Agency to develop a highly reliable multiple-object kill vehicle for the ground-based midcourse defense system using sound acquisition practices, and to include in the budget justification materials submitted to Congress for fiscal year 2017 a report on the funding profile necessary for the program.

Requirement To Replace Capability Enhancement I Exoatmospheric Kill Vehicles

Pub. L. 114–92, div. A, title XVI, §1682, Nov. 25, 2015, 129 Stat. 1139, directed the Director of the Missile Defense Agency to ensure, to the maximum extent practicable, that all remaining ground-based interceptors of the ground-based midcourse defense system that are armed with the capability enhancement I exoatmospheric kill vehicle were replaced with the redesigned exoatmospheric kill vehicle before Sept. 30, 2022.

Additional Missile Defense Sensor Coverage for Protection of United States Homeland

Pub. L. 114–92, div. A, title XVI, §1684, Nov. 25, 2015, 129 Stat. 1140, directed the Director of the Missile Defense Agency to deploy, not later than Dec. 31, 2020, a long-range discrimination radar or other sensor capability to defend the United States from long-range ballistic missile threats from Iran, and to include in the budget justification materials submitted to Congress for fiscal years 2017 to 2020 the plan to carry out such deployment.

Concept Development of Space-Based Missile Defense Layer

Pub. L. 114–92, div. A, title XVI, §1685, Nov. 25, 2015, 129 Stat. 1142, as amended by Pub. L. 114–328, div. A, title XVI, §1683, Dec. 23, 2016, 130 Stat. 2624, directed the Director of the Missile Defense Agency, in coordination with the Secretary of the Air Force and the Director of the Defense Advanced Research Projects Agency, to commence, not later than 30 days after Nov. 25, 2015, the concept definition of a space-based ballistic missile intercept layer to the ballistic missile defense system, and directed the Director of the Missile Defense Agency to submit to the congressional defense committees, not later than 1 year after Nov. 25, 2015, a plan for developing one or more programs for a space-based ballistic missile intercept layer, and to commence research and development of such programs not later than 60 days after the submittal of the plan.

Development of Requirements To Support Integrated Air and Missile Defense Capabilities

Pub. L. 114–92, div. A, title XVI, §1687, Nov. 25, 2015, 129 Stat. 1143, provided that:

"(a) In General.—Consistent with the memorandum of the Chairman of the Joint Chiefs of Staff of January 27, 2014, regarding joint integrated air and missile defense, the Vice Chairman of the Joint Chiefs of Staff shall oversee the development of warfighter requirements for persistent and survivable capabilities to detect, identify, determine the status, track, and support engagement of strategically important mobile or relocatable assets in all phases of conflict in order to achieve the objective of preventing the effective employment of such assets, including through offensive actions against such assets prior to their use.

"(b) Purpose of Requirements.—The requirements developed pursuant to subsection (a) shall be used and updated, as appropriate, for the purpose of informing applicable acquisition programs and systems-of-systems architecture planning that are funded through the Military Intelligence Program, the National Intelligence Program, and non-intelligence programs.

"(c) Supporting Activities.—The Vice Chairman shall also oversee the development of the enabling framework for intelligence support for integrated air and missile defense, including concepts for the integrated operation of multiple systems, and, as appropriate, the development of requirements for capabilities to be acquired to achieve such integrated operations.

"(d) Sense of Congress.—It is the sense of Congress that new acquisition programs for applicable major systems or capabilities, or for upgrades to existing systems, should not be undertaken until the applicable requirements described in subsections (a) and (c) have been developed and incorporated into programmatic decision-making."

Testing and Assessment of Missile Defense Systems Prior to Production and Deployment

Pub. L. 113–291, div. A, title XVI, §1662, Dec. 19, 2014, 128 Stat. 3657, as amended by Pub. L. 115–91, div. A, title XVI, §1677(b), Dec. 12, 2017, 131 Stat. 1774, prohibited the Secretary of Defense from making a final production decision for, or from operationally deploying, certain components of the ballistic missile defense system without sufficient and operationally realistic testing.

[For termination, effective Dec. 31, 2021, of reporting provisions in subsecs. (c)(2) and (d)(2) of section 1662 of Pub. L. 113–291, formerly set out above, see section 1061 of Pub. L. 114–328, set out as a note under section 111 of this title.]

Acquisition Plan for Re-Designed Exo-Atmospheric Kill Vehicle

Pub. L. 113–291, div. A, title XVI, §1663, Dec. 19, 2014, 128 Stat. 3658, directed the Secretary of Defense to develop an acquisition plan for the re-design of the exo-atmospheric kill vehicle of the ground-based midcourse defense system, and required the Director of the Missile Defense Agency to submit a report to the congressional defense committees on such plan.

Additional Missile Defense Radar for the Protection of the United States Homeland

Pub. L. 113–66, div. A, title II, §235, Dec. 26, 2013, 127 Stat. 714, directed the Director of the Missile Defense Agency to deploy a long-range discriminating radar against long-range ballistic missile threats from the Democratic People's Republic of Korea, directed the Secretary of Defense to ensure that the Secretary was able to deploy additional tracking and discrimination sensor capabilities to defend the United States from future long-range ballistic missile threats from Iran, and required submission to the congressional defense committees of a report on the sensor capabilities of the United States not later than 180 days after Dec. 26, 2013.

Plans To Improve the Ground-Based Midcourse Defense System

Pub. L. 113–66, div. A, title II, §237, Dec. 26, 2013, 127 Stat. 717, directed the Director of the Missile Defense Agency to develop options to achieve an improved kill assessment capability for the ground-based midcourse defense system by not later than Dec. 31, 2019, to develop an interim capability for improved hit assessment for the ground-based midcourse defense system that could be integrated into near-term exo-atmospheric kill vehicle upgrades and refurbishment, and to submit a report on such development not later than Apr. 1, 2014, and directed the Director of the Missile Defense Agency to submit a plan to develop and deploy an upgraded enhanced exo-atmospheric kill vehicle not later than 120 days after Dec. 26, 2013.

Limitation on Availability of Funds for Missile Defense Interceptors in Europe

Pub. L. 111–383, div. A, title II, §223(a)–(d), Jan. 7, 2011, 124 Stat. 4168, 4169, prohibited the expenditure of Department of Defense funds for the construction or deployment of missile defense interceptors in Europe until the host nation ratified a missile defense basing agreement and a status of forces agreement authorizing such interceptors and the Secretary of Defense submitted to the congressional defense committees the report on the independent assessment of alternative missile defense systems in Europe required by section 235(c)(2) of the National Defense Authorization Act for Fiscal Year 2010 (Pub. L. 111–84, 123 Stat. 2235).

Limitation on Availability of Funds for Procurement, Construction, and Deployment of Missile Defenses in Europe

Pub. L. 110–417, [div. A], title II, §233, Oct. 14, 2008, 122 Stat. 4393, as amended by Pub. L. 111–383, div. A, title X, §1075(e)(3), Jan. 7, 2011, 124 Stat. 4374, prohibited the expenditure of Department of Defense funds for a long-range missile defense system in Europe unless the host nation ratified a missile defense basing agreement, and required a further certification to Congress by the Secretary of Defense.

Policy of the United States on Protection of the United States and its Allies Against Iranian Ballistic Missiles

Pub. L. 110–181, div. A, title II, §229, Jan. 28, 2008, 122 Stat. 45, set forth as the policy of the United States to develop, along with its allies, a defense against Iranian ballistic missiles and to encourge the NATO alliance to accelerate its efforts to protect NATO territory against the threat of Iranian ballistic missiles.

Policy of the United States on Priorities in the Development, Testing, and Fielding of Missile Defense Capabilities

Pub. L. 109–364, div. A, title II, §223, Oct. 17, 2006, 120 Stat. 2130, set forth as the policy of the United States that the Department of Defense prioritize the development, testing, fielding, and improvement of effective near-term missile defense capabilities.

Plans for Test and Evaluation of Operational Capability of the Ballistic Missile Defense System

Pub. L. 109–163, div. A, title II, §234, Jan. 6, 2006, 119 Stat. 3174, as amended by Pub. L. 109–364, div. A, title II, §225, Oct. 17, 2006, 120 Stat. 2130, directed the operational and test components of the Department of Defense to prepare a plan to test the operational capability of each block of the Ballistic Missile Defense System, and directed the Director of Operational Test and Evaluation to submit a report to the congressional defense committees.

Integration of Patriot Advanced Capability-3 and Medium Extended Air Defense System Into Ballistic Missile Defense System

Pub. L. 108–375, div. A, title II, §232, Oct. 28, 2004, 118 Stat. 1835, designated the Patriot Advanced Capability-3/Medium Extended Air Defense System air and missile defense program as an element of the Ballistic Missile Defense System, prohibited the Secretary of the Army from making any significant change to the baseline technical specifications or the baseline schedule for the PAC–3/MEADS program without the concurrence of the Director of the Missile Defense Agency, and directed the Secretary of Defense to establish procedures for determining the effect of a proposed change to the procurement quantity for the PAC–3/MEADS program and to submit to Congress a report describing such procedures not later than Feb. 1, 2005.

Baselines and Operational Test and Evaluation for Ballistic Missile Defense System

Pub. L. 108–375, div. A, title II, §234, Oct. 28, 2004, 118 Stat. 1837, directed the Secretary of Defense, in consultation with the Director of Operational Test and Evaluation, to prescribe, not later than Feb. 1, 2005, criteria for operationally realistic testing of fieldable prototypes developed under the ballistic missile defense spiral development program, and to ensure that, not later than Oct. 1, 2005, any test of the ballistic missile defense system was conducted consistent with such criteria.

Provision of Information on Flight Testing of Ground-Based Midcourse National Missile Defense System

Pub. L. 107–314, div. A, title II, §224, Dec. 2, 2002, 116 Stat. 2485, directed the Director of the Missile Defense Agency to provide to the congressional defense committees information on the results of each flight test of the Ground-based Midcourse national missile defense system.

Missile Defense Agency Test Program

[For termination, effective Dec. 31, 2021, of annual reporting provisions in section 232(h) of Pub. L. 107–107, formerly set out above, see section 1061 of Pub. L. 114–328, set out as a note under section 111 of this title.]

Missile Defense Testing Initiative

Pub. L. 107–107, div. A, title II, §234, Dec. 28, 2001, 115 Stat. 1039, set out requirements for the testing infrastructure of the ballistic missile defense program, including specific requirements for ground-based mid-course interceptor systems for fiscal year 2002.

National Missile Defense Program

Pub. L. 105–85, div. A, title II, §231, Nov. 18, 1997, 111 Stat. 1661, provided that the Secretary of Defense was to ensure that the National Missile Defense Program was structured and programmed for funding so as to support a test, in fiscal year 1999, of an integrated national missile defense system that was representative of the national missile defense system architecture that could achieve initial operational capability in fiscal year 2003, and that not later than Feb. 15, 1998, the Secretary was to submit to the congressional defense committees a plan for the development and deployment of a national missile defense system that could achieve initial operational capability in fiscal year 2003.

Enhanced Cooperation Between National Nuclear Security Administration and Missile Defense Agency

Pub. L. 106–398, §1 [div. C, title XXXI, §3132], Oct. 30, 2000, 114 Stat. 1654, 1654A-455, as amended by Pub. L. 107–314, div. A, title II, §225(b)(3), Dec. 2, 2002, 116 Stat. 2486, directed the Secretary of Energy and the Secretary of Defense to modify the memorandum of understanding entered into under section 3131 of the National Defense Authorization Act for Fiscal Year 1998 (Pub. L. 105–85, formerly set out as a note below) to provide for jointly funded projects.

Pub. L. 105–85, div. C, title XXXI, §3131, Nov. 18, 1997, 111 Stat. 2034, directed the Secretary of Energy and the Secretary of Defense to enter into a memorandum of understanding to improve and facilitate the use of the expertise of the national laboratories for the ballistic missile defense programs of the Department of Defense.

Ballistic Missile Defense Program

Pub. L. 104–106, div. A, title II, subtitle C, Feb. 10, 1996, 110 Stat. 228–233, as amended by Pub. L. 105–85, div. A, title II, §236, Nov. 18, 1997, 111 Stat. 1665; Pub. L. 106–65, div. A, title X, §1067(6), Oct. 5, 1999, 113 Stat. 774; Pub. L. 107–314, div. A, title X, §1041(c), Dec. 2, 2002, 116 Stat. 2646, known as the Ballistic Missile Defense Act of 1995, restructured the core theater missile defense program, directed the Secretary of Defense to prepare a plan to develop theater missile defense systems, prohibited the use of Department of Defense funds to implement an agreement between the United States and any independent state of the former Soviet Union that would establish a demarcation between theater missile defense systems and anti-ballistic missile systems or restrict United States theater missile defense systems, and repealed the Missile Defense Act of 1991 (Pub. L. 102–190, div. A, title II, part C).

Compliance of Ballistic Missile Defense Systems and Components With ABM Treaty

Pub. L. 103–337, div. A, title II, §231, Oct. 5, 1994, 108 Stat. 2699, prohibited the use of funds appropriated to the Department of Defense for the development or testing of anti-ballisitic missile systems or components except as consistent with the ABM Treaty, limited the use of funds appropriated for the Brilliant Eyes program until the Secretary of Defense submitted a report to Congress on the compliance of that program with the ABM Treaty, and directed the Secretary of Defense to review the Navy Upper Tier program to determine its compliance with the ABM Treaty.

Theater Missile Defense Master Plan

Pub. L. 103–160, div. A, title II, §235, Nov. 30, 1993, 107 Stat. 1598, directed the Secretary of Defense to maximize the use of existing systems and technologies and promote joint use by the military departments of ballistic missile defense equipment in carrying out the Theater Missile Defense Initiative, to submit to Congress a TMD Master Plan, and to conduct a review of opportunities to streamline the weapon systems acquisition process applicable to the development, testing, and deployment of theater ballistic missile defenses.

Transfer of Follow-On Technology Programs

Pub. L. 103–160, div. A, title II, §243, Nov. 30, 1993, 107 Stat. 1605, as amended by Pub. L. 104–201, div. A, title X, §1073(e)(1)(E), Sept. 23, 1996, 110 Stat. 2658; Pub. L. 107–314, div. A, title II, §225(b)(4)(B), Dec. 2, 2002, 116 Stat. 2486, provided that management and budget responsibility for research and development of any program to develop far-term follow-on technology relating to ballistic missile defense was to be provided through the Defense Advanced Research Projects Agency or the appropriate military department, and directed the Secretary of Defense to submit to the congressional defense committees a report identifying each program the Secretary had transferred from the Missile Defense Agency and the the agency or military department to which each such transfer was made.

Theater Missile Defense Initiative

Pub. L. 102–484, div. A, title II, §231, Oct. 23, 1992, 106 Stat. 2354, established the Theater Missile Defense Initiative to carry out all theater and tactical missile defense activities of the Department of Defense, effective 90 days after Oct. 23, 1992.

Limitation on Transfer of Certain Military Technology to Independent States of Former Soviet Union

Pub. L. 100–180, div. A, title II, §223, Dec. 4, 1987, 101 Stat. 1056, as amended by Pub. L. 103–199, title II, §203(a)(1), Dec. 17, 1993, 107 Stat. 2321, prohibited the transfer of technology developed with funds appropriated for the Ballistic Missile Defense Program to Russia or any other independent state of the former Soviet Union unless the President certified to Congress that such transfer was in the national interest and was to be made for the purpose of maintaining peace.

SDI Architecture To Require Human Decision Making

Pub. L. 100–180, div. A, title II, §224, Dec. 4, 1987, 101 Stat. 1056, prohibited the Federal Government from funding or otherwise supporting the development of command and control systems for strategic defense in the boost or post-boost phase against ballistic missile threats that would permit such strategic defenses to initiate the directing of damaging or lethal fire except by affirmative human decision at an appropriate level of authority.

Establishment of Federally Funded Research and Development Center To Support SDI Program

Pub. L. 100–180, div. A, title II, §227, Dec. 4, 1987, 101 Stat. 1057, authorized the Secretary of Defense, using funds appropriated to the Department of Defense for the Strategic Defense Initiative program, to enter into a contract not to be awarded before Oct. 1, 1989, to provide for the establishment and operation of a federally funded research and development center (FFRDC) to provide independent and objective technical support to the Strategic Defense Initiative program, and provided that no Federal funds could be provided to the new FFRDC after the end of the five-year period beginning on the date of the award of the first contract awarded.

Limitation on Establishment of Federally Funded Research and Development Center for Strategic Defense Initiative Program

Pub. L. 99–661, div. A, title II, §213, Nov. 14, 1986, 100 Stat. 3841, prohibited the Secretary of Defense from obligating or expending any funds for the purpose of operating a Federally funded research and development center that was established for the support of the Strategic Defense Initiative Program after Nov. 14, 1986, unless the Secretary submitted to the Committees on Armed Services of the Senate and House of Representatives a report with respect to such proposed center and funds were specifically authorized to be appropriated for such purpose in an Act other than an appropriations Act or a continuing resolution.

Annual Report on Ballistic Missile Defense Program

Pub. L. 100–180, div. A, title II, §231(a), Dec. 4, 1987, 101 Stat. 1059, provided that not later than Mar. 15, 1988 and Mar. 15, 1989, the Secretary of Defense was to transmit to Congress a report on the programs that constitute the Strategic Defense Initiative and on any other program relating to defense against ballistic missiles.

Plans for Management of Technical Data and Computer Capability Improvements

Pub. L. 98–525, title XII, §1252, Oct. 19, 1984, 98 Stat. 2610, directed Secretary of Defense, not later than one year after Oct. 19, 1984, to develop a plan for an improved system for the management of technical data relating to any major system of the Department of Defense and, not later than 5 years after Oct. 19, 1984, to complete implementation of the management plan, directed Comptroller General, not later than 18 months after Oct. 19, 1984, to transmit to Congress a report evaluating the plan developed, and directed Secretary of Defense, not later than 180 days after Oct. 19, 1984, to transmit to Congress a plan to improve substantially the computer capability of each of the military departments and of the Defense Logistics Agency to store and access rapidly data that is needed for the efficient procurement of supplies.

Consultation With Allies on Strategic Defense Initiative Program

Pub. L. 98–473, title I, §101(h) [title VIII, §8104], Oct. 12, 1984, 98 Stat. 1904, 1942, conveyed the sense of Congress that the President should consult with other member nations of the North Atlantic Treaty Organization, Japan, and other appropriate allies concerning the research being conducted in the Strategic Defense Initiative program and that the Secretary of Defense should report the status of such consultations at the time of the submission of annual budget presentation materials for each fiscal year beginning after Sept. 30, 1984.

Antisatellite Weapons Test

Pub. L. 100–180, div. A, title II, §208, Dec. 4, 1986, 101 Stat. 1048, prohibited the Secretary of Defense, until Oct. 1, 1988, from carrying out a test of the Space Defense System (antisatellite weapon) involving the F–15 launched miniature homing vehicle against an object in space until the President certified to Congress that the Soviet Union had conducted, after Dec. 4, 1987, a test against an object in space of a dedicated antisatellite weapon.

Pub. L. 99–661, div. A, title II, §231, Nov. 14, 1986, 100 Stat. 3847, prohibited the Secretary of Defense, until Oct. 1, 1987, from carrying out a test of the Space Defense System (anti-satellite weapon) against an object in space until the President certified to Congress that the Soviet Union had conducted, after Nov. 14, 1986, a test against an object in space of a dedicated anti-satellite weapon.

Similar provisions were contained in the following prior acts:

Pub. L. 99–500, §101(c) [title XI, §1101], Oct. 18, 1986, 100 Stat. 1783–82, 1783-177, and Pub. L. 99–591, §101(c) [title XI, §1101], Oct. 30, 1986, 100 Stat. 3341–82, 3341-177.

Pub. L. 99–190, §101(b) [title VIII, §8097], Dec. 19, 1985, 99 Stat. 1185, 1219.

Pub. L. 99–145, title II, §208(a), (b), Nov. 8, 1985, 99 Stat. 610, prohibited the use of funds to test the miniature homing vehicle (MHV) anti-satellite warhead launched from an F–15 aircraft unless the President made a certification to Congress as provided in section 8100 of the Department of Defense Appropriations Act, 1985 (Pub. L. 98–473, title I, §101(h) [title VIII, §8100], formerly set out as a note below), and provided that no more than three such tests could be conducted before Oct. 1, 1986.

Pub. L. 98–473, title I, §101(h) [title VIII, §8100], Oct. 12, 1984, 98 Stat. 1904, 1941, prohibited the use of funds to test the miniature homing vehicle (MHV) anti-satellite warhead launched from an F–15 aircraft unless the President made a certification to Congress that certain conditions had been satisfied, and provided that no more than three such tests could be conducted during fiscal year 1985.

Similar provisions were contained in the following prior authorization act:

Pub. L. 98–94, title XI, §1235, Sept. 24, 1983, 97 Stat. 695; as amended by Pub. L. 98–525, title II, §205, Oct. 19, 1984, 98 Stat. 2509.

East Coast Trident Base and MX Missile System Sites; Use of Funds Appropriated to Department of Defense; Assistance to Nearby Communities To Help Meet Costs of Increased Municipal Services

Pub. L. 96–418, title VIII, §802, Oct. 10, 1980, 94 Stat. 1775, as amended by Pub. L. 97–99, title IX, §904(b), Dec. 23, 1981, 95 Stat. 1382; Pub. L. 98–115, title VIII, §805, Oct. 11, 1983, 97 Stat. 785; Pub. L. 101–510, div. A, title XIII, §1322(f), Nov. 5, 1990, 104 Stat. 1672, authorized the Secretary of Defense to assist communities located near MX Missile System sites and the East Coast Trident Base, and the States in which such communities were located, in meeting the increased costs of municipal services and facilities resulting from the construction and operation of the MX Missile System or the East Coast Trident Base.

MX Missile and Basing Mode

Pub. L. 96–342, title II, §202, Sept. 8, 1980, 94 Stat. 1079, directed the Secretary of Defense to proceed with the development of the MX missile and a Multiple Protective Structure (MPS) basing mode in order to achieve an Initial Operational Capability not later than Dec. 31, 1986.

Development of MX Missile System

Pub. L. 96–29, title II, §202, June 27, 1979, 93 Stat. 79, directed the Secretary of Defense to proceed with the development of the Multiple Protective Structure (MPS) system concurrently with the development of the MX missile, unless and until the Secretary of Defense certified to the Congress that an alternative basing mode was militarily or technologically superior to, and was more cost effective than, the MPS system or the President informed the Congress that in his view the MPS system was not consistent with United States national security interests.

Trident Support Site, Bangor, Washington; Financial Aid to Local Communities; Reports

Pub. L. 93–552, title VI, §608, Dec. 27, 1974, 88 Stat. 1763, authorized the Secretary of Defense to assist communities located near the TRIDENT Support Site in Bangor, Washington, in meeting the increased costs of municipal services and facilities resulting from the construction and operation of the TRIDENT Weapon System, and directed the Secretary to transmit to the Committees on Armed Services of the Senate and the House of Representatives semiannual reports on such assistance provided during the preceding six-month period.

CHAPTER 322—MAJOR SYSTEMS AND MAJOR DEFENSE ACQUISITION PROGRAMS GENERALLY

Subchapter

Sec.

Management

4211

II.

Contracting

4231

III.

Milestones for Major Defense Acquisition Programs

4251

IV.

Additional Provisions Applicable Specifically to Major Defense Acquisition Programs

4271

Contractors

4291

Editorial Notes

Amendments

Pub. L. 117–81, div. A, title XVII, §1701(b)(16)(A), Dec. 27, 2021, 135 Stat. 2134, amended Pub. L. 116–283, div. A, title XVIII, §1847(a), Jan. 1, 2021, 134 Stat. 4252, which added this analysis, by adding item for subchapter V and striking out a second item for subchapter III "Contractors".

SUBCHAPTER I—MANAGEMENT

Sec.

4211.

Acquisition strategy.

4212.

Risk management and mitigation in major defense acquisition programs and major systems.

4213.

[Reserved].

4214.

Baseline description.

4215.

[Reserved].

4216.

[Reserved].

4217.

[Reserved].

4218.

[Reserved].

Editorial Notes

Amendments

2021—Pub. L. 117–81, div. A, title XVII, §1701(f)(7), Dec. 27, 2021, 135 Stat. 2139, added item 4212 and struck out former item 4212 "Risk management and mitigation".

Statutory Notes and Related Subsidiaries

Should-Cost Management

Pub. L. 115–91, div. A, title VIII, §837, Dec. 12, 2017, 131 Stat. 1474, provided that:

"(a) Requirement for Regulations.—Not later than 180 days after the date of the enactment of this Act [Dec. 12, 2017], the Secretary of Defense shall amend the Defense Supplement to the Federal Acquisition Regulation to provide for the appropriate use of the should-cost review process of a major weapon system in a manner that is transparent, objective, and provides for the efficiency of the systems acquisition process in the Department of the Defense.

"(b) Required Elements.—The regulations required under subsection (a) shall incorporate, at a minimum, the following elements:

"(1) A description of the features of the should-cost review process.

"(2) Establishment of a process for communicating with the prime contractor on the program the elements of a proposed should-cost review.

"(3) A method for ensuring that identified should-cost savings opportunities are based on accurate, complete, and current information and can be quantified and tracked.

"(4) A description of the training, skills, and experience that Department of Defense and contractor officials carrying out a should-cost review in subsection (a) should possess.

"(5) A method for ensuring appropriate collaboration with the contractor throughout the review process.

"(6) Establishment of review process requirements that provide for sufficient analysis and minimize any impact on program schedule."

Management of Manufacturing Risk in Major Defense Acquisition Programs

Pub. L. 111–383, div. A, title VIII, §812, Jan. 7, 2011, 124 Stat. 4264, as amended by Pub. L. 112–81, div. A, title VIII, §834, Dec. 31, 2011, 125 Stat. 1506, directed the Secretary of Defense to issue, not later than 180 days after Jan. 7, 2011, comprehensive guidance on the management of manufacturing risk in major defense acquisition programs and to ensure that the acquisition workforce chapter of the annual strategic workforce plan required by former section 115b of this title included an assessment of the critical manufacturing readiness knowledge and skills needed in the acquisition workforce and a plan of action for addressing any gaps in such knowledge and skills.

Congressional Notification of Cancellation of Major Automated Information Systems

Pub. L. 109–163, div. A, title VIII, §806, Jan. 6, 2006, 119 Stat. 3373, provided that:

"(a) Report Required.—The Secretary of Defense shall notify the congressional defense committees [Committees on Armed Services and Appropriations of the Senate and the House of Representatives] not less than 60 days before cancelling a major automated information system program that has been fielded or approved to be fielded, or making a change that will significantly reduce the scope of such a program, of the proposed cancellation or change.

"(b) Content.—Each notification submitted under subsection (a) with respect to a proposed cancellation or change shall include—

"(1) the specific justification for the proposed cancellation or change;

"(2) a description of the impact of the proposed cancellation or change on the ability of the Department to achieve the objectives of the program proposed for cancellation or change;

"(3) a description of the steps that the Department plans to take to achieve those objectives; and

"(4) other information relevant to the change in acquisition strategy.

"(c) Definitions.—In this section:

"(1) The term 'major automated information system' has the meaning given that term in Department of Defense directive 5000.1.

"(2) The term 'approved to be fielded' means having received Milestone C approval."

§4211. Acquisition strategy

(a) Acquisition Strategy Required.—There shall be an acquisition strategy for each major defense acquisition program, each major automated information system, and each major system approved by a milestone decision authority.

(b) Responsible Official.—For each acquisition strategy required by subsection (a), the Under Secretary of Defense for Acquisition and Sustainment, or the milestone decision authority, when the milestone decision authority is the service acquisition executive of the military department that is managing the program, is responsible for issuing and maintaining the requirements for—

(1) the content of the strategy; and

(2) the review and approval process for the strategy.

(c) Considerations.—(1) In issuing requirements for the content of an acquisition strategy for a major defense acquisition program, major automated information system, or major system, the Under Secretary, or the milestone decision authority, when the milestone decision authority is the service acquisition executive of the military department that is managing the program, shall ensure that—

(A) the strategy clearly describes the proposed top-level business and technical management approach for the program or system, in sufficient detail to allow the milestone decision authority to assess the viability of the proposed approach, the method of implementing laws and policies, and program objectives;

(B) the strategy contains a clear explanation of how the strategy is designed to be implemented with available resources, such as time, funding, and management capacity;

(D) the strategy considers the items listed in paragraph (2).

(2) Each strategy shall, where appropriate, consider the following:

(A) An approach that delivers required capability in increments, each depending on available mature technology, and that recognizes up front the need for future capability improvements.

(B) Acquisition approach, including industrial base considerations in accordance with section 4820 of this title.

(D) Business strategy, including measures to ensure competition at the system and subsystem level throughout the life-cycle of the program or system in accordance with section 4324 of this title.

(E) Contracting strategy, including—

(i) contract type and how the type selected relates to level of program risk in each acquisition phase;

(ii) how the plans for the program or system to reduce risk enable the use of fixed-price elements in subsequent contracts and the timing of the use of those fixed price elements;

(iii) market research; and

(iv) consideration of small business participation.

(F) Intellectual property strategy in accordance with sections 3771 through 3775 of this title.

(G) International involvement, including foreign military sales and cooperative opportunities, in accordance with section 2350a of this title.

(H) Multiyear procurement in accordance with sections 3501 through 3511 ¹ of this title.

(I) Integration of current intelligence assessments into the acquisition process.

(J) Requirements related to logistics, maintenance, and sustainment in accordance with sections 2464 and 2466 of this title.

(d) Review.—(1) The milestone decision authority shall review and approve, as appropriate, the acquisition strategy for a major defense acquisition program, major automated information system, or major system at each of the following times:

(A) Milestone A approval.

(B) The decision to release the request for proposals for development of the program or system.

(D) Each subsequent milestone.

(E) Review of any decision to enter into full-rate production.

(F) When there has been—

(i) a significant change to the cost of the program or system;

(ii) a critical change to the cost of the program or system;

(iii) a significant change to the schedule of the program or system; or

(iv) a significant change to the performance of the program or system.

(G) Any other time considered relevant by the milestone decision authority.

(2) If the milestone decision authority revises an acquisition strategy for a program or system because of a change described in paragraph (1)(F), the milestone decision authority shall provide notice of the revision to the congressional defense committees.

(e) Definitions.—In this section:

(1) The term "Milestone A approval" means a decision to enter into technology maturation and risk reduction pursuant to guidance prescribed by the Secretary of Defense for the management of Department of Defense acquisition programs.

(2) The term "Milestone B approval" has the meaning provided in section 4172(e)(7) of this title.

(3) The term "milestone decision authority", with respect to a major defense acquisition program, major automated information system, or major system, means the official within the Department of Defense designated with the overall responsibility and authority for acquisition decisions for the program or system, including authority to approve entry of the program or system into the next phase of the acquisition process.

(4) The term "management capacity", with respect to a major defense acquisition program, major automated information system, or major system, means the capacity to manage the program or system through the use of highly qualified organizations and personnel with appropriate experience, knowledge, and skills.

(5) The term "significant change to the cost", with respect to a major defense acquisition program or major system, means a significant cost growth threshold, as that term is defined in section 4371(a)(2) of this title.

(6) The term "critical change to the cost", with respect to a major defense acquisition program or major system, means a critical cost growth threshold, as that term is defined in section 4371(a)(3) of this title.

(7) The term "significant change to the schedule", with respect to a major defense acquisition program, major automated information system, or major system, means any schedule delay greater than six months in a reported event.

(Added Pub. L. 114–92, div. A, title VIII, §821(a)(1), Nov. 25, 2015, 129 Stat. 897, §2431a; amended Pub. L. 114–328, div. A, title VIII, §848, Dec. 23, 2016, 130 Stat. 2292; Pub. L. 115–91, div. A, title X, §1081(a)(39), Dec. 12, 2017, 131 Stat. 1596; Pub. L. 116–92, div. A, title IX, §902(70), Dec. 20, 2019, 133 Stat. 1551; renumbered §4211 and amended Pub. L. 116–283, div. A, title XVIII, §1847(b)(1), (2), Jan. 1, 2021, 134 Stat. 4253; Pub. L. 117–81, div. A, title XVII, §1701(s)(1), Dec. 27, 2021, 135 Stat. 2149.)

Editorial Notes

References in Text

Sections 3501 through 3511 of this title, referred to in subsec. (c)(2)(H), was, prior to amendment by Pub. L. 116–283, "section 2306b of this title", but probably should have been amended to read "section 3501 of this title" because of the amendment by Pub. L. 117–81, div. A, title XVII, §1701(k)(2), Dec. 27, 2021, 135 Stat. 2143, which amended section 1822 of Pub. L. 116–283 by striking subsections (b) through (l) of such section and adding a new subsec. (b) to such section which transferred section 2306b of this title to section 3501 of this title.

Amendments

2021—Pub. L. 116–283, §1847(b)(1)(A), renumbered section 2431a of this title as this section.

Subsec. (c)(2)(B). Pub. L. 116–283, §1847(b)(2), formerly §1847(b)(2)(B), as redesignated and amended by Pub. L. 117–81, §1701(s)(1), substituted "section 4820 of this title" for "section 2440 of this title".

Subsec. (c)(2)(D). Pub. L. 116–283, §1847(b)(1)(B)(i)(I), substituted "section 4324" for "section 2337".

Subsec. (c)(2)(F). Pub. L. 116–283, §1847(b)(1)(B)(i)(II), substituted "sections 3771 through 3775" for "section 2320".

Subsec. (c)(2)(H). Pub. L. 116–283, §1847(b)(1)(B)(i)(III), substituted "sections 3501 through 3511" for "section 2306b".

Subsec. (c)(3). Pub. L. 116–283, §1847(b)(2)(A), which directed the transfer of section 2440 of this title to subsec. (c)(3) of this section and substitution of "section 4811" for "section 2501" in text, was repealed by Pub. L. 117–81, §1701(s)(1)(A).

Subsec. (e). Pub. L. 116–283, §1847(b)(1)(C), which directed amendment of subsec. (e) by striking pars. (1) and (2) and redesignating pars. (3) to (10) as (1) to (8), respectively, was executed by striking pars. (1) and (2) and redesignating former pars. (3) to (9) as (1) to (7), respectively, to reflect the probable intent of Congress, as no par. (10) had been enacted. Prior to amendment, pars. (1) and (2) defined "major defense acquisition program" and "major system", respectively.

Subsec. (e)(4). Pub. L. 116–283, §1847(b)(1)(B)(ii)(I), substituted "section 4172(e)(7)" for "section 2366(e)(7)".

Subsec. (e)(7). Pub. L. 116–283, §1847(b)(1)(B)(ii)(II), substituted "section 4371(a)(2)" for "section 2433(a)(4)".

Subsec. (e)(8). Pub. L. 116–283, §1847(b)(1)(B)(ii)(III), substituted "section 4371(a)(3)" for "section 2433(a)(5)".

2019—Subsec. (b). Pub. L. 116–92 substituted "Under Secretary of Defense for Acquisition and Sustainment" for "Under Secretary of Defense for Acquisition, Technology, and Logistics" in introductory provisions.

2017—Subsec. (d)(1). Pub. L. 115–91 inserted "(1)" before "The milestone".

2016—Subsec. (b). Pub. L. 114–328, §848(1), in introductory provisions, inserted ", or the milestone decision authority, when the milestone decision authority is the service acquisition executive of the military department that is managing the program," after "the Under Secretary of Defense for Acquisition, Technology, and Logistics".

Subsec. (c)(1). Pub. L. 114–328, §848(2)(A), in introductory provisions, inserted ", or the milestone decision authority, when the milestone decision authority is the service acquisition executive of the military department that is managing the program," after "the Under Secretary".

Subsec. (c)(2)(C). Pub. L. 114–328, §848(2)(B), struck out ", in accordance with section 2431b of this title" before period at end.

Subsec. (d). Pub. L. 114–328, §848(3), substituted "The" for "(1) Subject to the authority, direction, and control of the Under Secretary of Defense for Acquisition, Technology, and Logistics, the" and, in par. (2), inserted "because of a change described in paragraph (1)(F)" after "for a program or system".

Statutory Notes and Related Subsidiaries

Effective Date of 2021 Amendment

¹ See References in Text note below.

§4212. Risk management and mitigation in major defense acquisition programs and major systems

(a) Requirement.—The Secretary of Defense shall ensure that the initial acquisition strategy (required under section 4211 of this title) approved by the milestone decision authority and any subsequent revisions include the following:

(1) A comprehensive approach for managing and mitigating risk (including technical, cost, and schedule risk) during each of the following periods or when determined appropriate by the milestone decision authority:

(A) The period preceding engineering manufacturing development, or its equivalent.

(B) The period preceding initial production.

(2) An identification of the major sources of risk in each of the periods listed in paragraph (1) to improve programmatic decisionmaking and appropriately minimize and manage program concurrency.

(b) Approach to Manage and Mitigate Risks.—The comprehensive approach to manage and mitigate risk included in the acquisition strategy for purposes of subsection (a)(1) shall, at a minimum, include consideration of risk mitigation techniques such as the following:

(1) Prototyping (including prototyping at the system, subsystem, or component level and competitive prototyping, where appropriate) and, if prototyping at either the system, subsystem, or component level is not used, an explanation of why it is not appropriate.

(2) Modeling and simulation, the areas that modeling and simulation will assess, and identification of the need for development of any new modeling and simulation tools in order to support the comprehensive strategy.

(3) Technology demonstrations and decision points for disciplined transition of planned technologies into programs or the selection of alternative technologies.

(4) Multiple design approaches.

(5) Alternative designs, including any designs that meet requirements but do so with reduced performance.

(6) Phasing of program activities or related technology development efforts in order to address high-risk areas as early as feasible.

(7) Manufacturability and industrial base availability.

(8) Independent risk element assessments by outside subject matter experts.

(9) Schedule and funding margins for identified risks.

(c) Preference for Prototyping.—To the maximum extent practicable and consistent with the economical use of available financial resources, the milestone decision authority for each major defense acquisition program shall ensure that the acquisition strategy for the program provides for—

(1) the production of competitive prototypes at the system or subsystem level before Milestone B approval; or

(2) if the production of competitive prototypes is not practicable, the production of single prototypes at the system or subsystem level.

(d) Concurrency Defined.—In this section, the term "concurrency" means, with respect to an acquisition strategy, the combination or overlap of program phases or activities.

(Added Pub. L. 114–92, div. A, title VIII, §822(a)(1), Nov. 25, 2015, 129 Stat. 900, §2431b; amended Pub. L. 114–328, div. A, title X, §1081(a)(7), Dec. 23, 2016, 130 Stat. 2417; renumbered §4212 and amended Pub. L. 116–283, div. A, title XVIII, §1847(b)(3), Jan. 1, 2021, 134 Stat. 4254.)

Editorial Notes

Amendments

2021—Pub. L. 116–283, §1847(b)(3), renumbered section 2431b of this title as this section.

Subsec. (a). Pub. L. 116–283, §1847(b)(3)(A), substituted "section 4211" for "section 2431a".

Subsec. (d). Pub. L. 116–283, §1847(b)(3)(B), substituted "Concurrency Defined" for "Definitions" in subsec. heading, struck out par. (1) designation and heading, substituted "In this section, the term" for "The term", and struck out par. (2) which defined "major defense acquisition program" and "major system".

2016—Subsec. (d). Pub. L. 114–328 amended subsec. (d) generally. Prior to amendment, subsec. (d) defined terms "major defense acquisition program" and "major system".

Statutory Notes and Related Subsidiaries

Effective Date of 2021 Amendment

§4214. Baseline description

(a) Baseline Description Requirement.—(1) The Secretary of a military department shall establish a baseline description for each major defense acquisition program and for each designated major subprogram under the program under the jurisdiction of such Secretary.

(2) The baseline shall include sufficient parameters to describe the cost estimate (referred to as the "Baseline Estimate" in sections 4371 through 4375 of this title), schedule, performance, supportability, and any other factor of such major defense acquisition program or designated major subprogram.

(b) Funding Limit.—No amount appropriated or otherwise made available to the Department of Defense for carrying out a major defense acquisition program or any designated major subprogram under the program may be obligated after the program or subprogram enters system development and demonstration without an approved baseline description unless such obligation is specifically approved by the Under Secretary of Defense for Acquisition and Sustainment.

(c) Schedule.—A baseline description for a major defense acquisition program or any designated major subprogram under the program shall be prepared under this section—

(1) before the program or subprogram enters system development and demonstration;

(2) before the program or subprogram enters production and deployment; and

(3) before the program or subprogram enters full rate production.

(d) Original Baseline Estimate.—(1) In this subpart, the term "original Baseline Estimate", with respect to a major defense acquisition program or any designated major subprogram under the program, means the baseline description established with respect to the program or subprogram under subsection (a) prepared before the program or subprogram enters system development and demonstration, or at program or subprogram initiation, whichever occurs later, without adjustment or revision (except as provided in paragraph (2)).

(2) An adjustment or revision of the original baseline description of a major defense acquisition program or any designated major subprogram under the program may be treated as the original Baseline Estimate for the program or subprogram for purposes of this chapter only if the percentage increase in the program acquisition unit cost or procurement unit cost under such adjustment or revision exceeds the critical cost growth threshold for the program or subprogram under sections 4371 through 4375 of this title, as determined by the Secretary of the military department concerned under section 4374 of this title.

(3) In the event of an adjustment or revision of the original baseline description of a major defense acquisition program or any designated major subprogram under the program, the Secretary of Defense shall include in the next Selected Acquisition Report to be submitted under section 4351 of this title after such adjustment or revision a notification to the congressional defense committees of such adjustment or revision, together with the reasons for such adjustment or revision.

(e) Regulations.—The Secretary of Defense shall prescribe regulations governing the following:

(1) The content of baseline descriptions under this section.

(2) The submission to the Secretary of the military department concerned and the Under Secretary of Defense for Acquisition and Sustainment by the program manager for a program for which there is an approved baseline description (or in the case of a major defense acquisition program with one or more designated major subprograms, approved baseline descriptions for such subprograms) under this section of reports of deviations from any such baseline description of the cost, schedule, performance, supportability, or any other factor of the program or subprogram.

(3) Procedures for review of such deviation reports within the Department of Defense.

(4) Procedures for submission to, and approval by, the Secretary of Defense of revised baseline descriptions.

(Added Pub. L. 99–500, §101(c) [title X, §904(a)(1)], Oct. 18, 1986, 100 Stat. 1783–82, 1783-133, and Pub. L. 99–591, §101(c) [title X, §904(a)(1)], Oct. 30, 1986, 100 Stat. 3341–82, 3341-133, §2435; Pub. L. 99–661, div. A, title IX, formerly title IV, §904(a)(1), Nov. 14, 1986, 100 Stat. 3912, renumbered title IX, Pub. L. 100–26, §3(5), Apr. 21, 1987, 101 Stat. 273; amended Pub. L. 100–26, §7(b)(6), Apr. 21, 1987, 101 Stat. 280; Pub. L. 100–180, div. A, title VIII, §803(a), Dec. 4, 1987, 101 Stat. 1125; Pub. L. 100–370, §1(i)(1), July 19, 1988, 102 Stat. 848; Pub. L. 100–456, div. A, title XII, §1233(l)(4), Sept. 29, 1988, 102 Stat. 2058; Pub. L. 101–189, div. A, title VIII, §811(b), Nov. 29, 1989, 103 Stat. 1493; Pub. L. 101–510, div. A, title XII, §1207(b), title XIV, §1484(k)(11), Nov. 5, 1990, 104 Stat. 1665, 1719; Pub. L. 103–160, div. A, title IX, §904(d)(1), Nov. 30, 1993, 107 Stat. 1728; Pub. L. 103–355, title III, §3005(a), Oct. 13, 1994, 108 Stat. 3330; Pub. L. 107–107, div. A, title VIII, §821(d), title X, §1048(b)(2), Dec. 28, 2001, 115 Stat. 1182, 1225; Pub. L. 109–163, div. A, title VIII, §802(d)(1), Jan. 6, 2006, 119 Stat. 3369; Pub. L. 109–364, div. A, title VIII, §806, Oct. 17, 2006, 120 Stat. 2315; Pub. L. 110–417, [div. A], title VIII, §811(d), Oct. 14, 2008, 122 Stat. 4524; Pub. L. 116–92, div. A, title IX, §902(71), Dec. 20, 2019, 133 Stat. 1551; renumbered §4214 and amended Pub. L. 116–283, div. A, title XVIII, §1847(b)(4), Jan. 1, 2021, 134 Stat. 4254; Pub. L. 117–81, div. A, title XVII, §1701(o)(6)(C)(i), Dec. 27, 2021, 135 Stat. 2147.)

Historical and Revision Notes

1988 Act

Subsection (c) is based on Pub. L. 98–525, title XII, §1243, Oct. 19, 1984, 98 Stat. 2609, as amended by Pub. L. 100–26, §110(a)(1), Apr. 21, 1987, 101 Stat. 288.

Editorial Notes

Codification

Pub. L. 110–417, §811(d)(2)(B), (3)(B), (4)(B)(i), which directed amendment of this section by inserting "or subprogram" after "the program" in subsec. (b) and after "the program" each place it appeared in subsecs. (c) and (d), was executed by making the insertions after "the program" each place it appeared in those subsecs. except after "designated major subprogram under the program", to reflect the probable intent of Congress.

Pub. L. 99–591 is a corrected version of Pub. L. 99–500.

Pub. L. 99–500, Pub. L. 99–591, and Pub. L. 99–661 added identical sections.

Amendments

2021—Pub. L. 116–283, §1847(b)(4), renumbered section 2435 of this title as this section.

Subsec. (a)(2). Pub. L. 116–283, §1847(b)(4)(A), substituted "sections 4371 through 4375" for "section 2433".

Subsec. (d)(1). Pub. L. 116–283, §1847(b)(4)(B)(i), substituted "In this subpart" for "In this chapter".

Subsec. (d)(2). Pub. L. 116–283, §1847(b)(4)(A), (B)(ii), substituted "sections 4371 through 4375" for "section 2433" and "section 4374 of this title" for "subsection (d) of such section".

Subsec. (d)(3). Pub. L. 116–283, §1847(b)(4)(B)(iii), as amended by Pub. L. 117–81, §1701(o)(6)(C)(i), substituted "section 4351" for "section 2432".

2019—Subsecs. (b), (e)(2). Pub. L. 116–92 substituted "the Under Secretary of Defense for Acquisition and Sustainment" for "the Under Secretary of Defense for Acquisition, Technology, and Logistics".

2008—Subsec. (a). Pub. L. 110–417, §811(d)(1), inserted "and for each designated major subprogram under the program" after "major defense acquisition program" in par. (1) and "or designated major subprogram" after "major defense acquisition program" in par. (2).

Subsec. (b). Pub. L. 110–417, §811(d)(2), inserted "or any designated major subprogram under the program" after "major defense acquisition program" and "or subprogram" after "after the program". See Codification note above.

Subsec. (c). Pub. L. 110–417, §811(d)(3), inserted "or any designated major subprogram under the program" after "major defense acquisition program" in introductory provisions and "or subprogram" after "the program" in pars. (1) to (3). See Codification note above.

Subsec. (d). Pub. L. 110–417, §811(d)(4), inserted "or any designated major subprogram under the program" after "major defense acquisition program" wherever appearing, in par. (1), inserted "or subprogram" after "to the program", "before the program", and "at program", and, in par. (2), inserted "or subprogram" after "for the program" in two places. See Codification note above.

Subsec. (e)(2). Pub. L. 110–417, §811(d)(5), inserted "(or in the case of a major defense acquisition program with one or more designated major subprograms, approved baseline descriptions for such subprograms)" after "baseline description" and "or subprogram" before period at end and substituted "any such baseline description" for "the baseline".

2006—Subsec. (d). Pub. L. 109–163 added subsec. (d). Former subsec. (d) redesignated (e).

Subsec. (d)(1). Pub. L. 109–364 inserted "prepared before the program enters system development and demonstration, or at program initiation, whichever occurs later" after "program under subsection (a)".

Subsec. (e). Pub. L. 109–163 redesignated subsec. (d) as (e).

2001—Subsec. (b). Pub. L. 107–107, §§821(d)(1), 1048(b)(2), substituted "system development and demonstration" for "engineering and manufacturing development" and "Under Secretary of Defense for Acquisition, Technology, and Logistics" for "Under Secretary of Defense for Acquisition and Technology".

Subsec. (c)(1). Pub. L. 107–107, §821(d)(2)(A), substituted "system development and demonstration" for "demonstration and validation".

Subsec. (c)(2). Pub. L. 107–107, §821(d)(2)(B), substituted "production and deployment" for "engineering and manufacturing development".

Subsec. (c)(3). Pub. L. 107–107, §821(d)(2)(C), substituted "full rate production" for "production and deployment".

Subsec. (d)(2). Pub. L. 107–107, §1048(b)(2), substituted "Under Secretary of Defense for Acquisition, Technology, and Logistics" for "Under Secretary of Defense for Acquisition and Technology".

1994—Pub. L. 103–355 amended section generally. Prior to amendment, section related to enhanced program stability.

1993—Subsec. (b)(2)(B). Pub. L. 103–160 substituted "Under Secretary of Defense for Acquisition and Technology" for "Under Secretary of Defense for Acquisition".

1990—Subsec. (b)(1). Pub. L. 101–510, §1484(k)(11), struck out closing parenthesis after "such Secretary" in introductory provisions.

Subsec. (c). Pub. L. 101–510, §1207(b), struck out subsec. (c) which read as follows: "Stability of Program Managers.—(1) The tour of duty of an officer of the armed forces as a program manager of a major defense acquisition program shall be (A) not less than four years, or (B) until completion of a major program milestone (as defined in regulations prescribed by the Secretary of Defense).

"(2) The Secretary of the military department concerned may waive the length of the tour of duty prescribed in paragraph (1). The authority under the preceding sentence may not be delegated."

1989—Subsec. (a)(2)(B)(iv). Pub. L. 101–189, §811(b)(1), substituted "production" for "development".

Subsec. (b)(1). Pub. L. 101–189, §811(b)(2)(A), substituted "service acquisition executive designated by such Secretary" for "senior procurement executive of such military department (designated pursuant to section 16(3) of the Office of Federal Procurement Policy Act (41 U.S.C. 414(3))".

Subsec. (b)(2). Pub. L. 101–189, §811(b)(2)(B), substituted "180 days" for "90 days" in introductory provisions.

1988—Subsec. (b)(2). Pub. L. 100–456 clarified amendment by Pub. L. 100–180, §803(a). See 1987 Amendment note below.

Subsec. (c). Pub. L. 100–370 added subsec. (c).

1987—Subsec. (b)(2). Pub. L. 100–180, as amended by Pub. L. 100–456, substituted "under paragraph (1), and for which the total cost of completion of the stage will exceed by 15 percent or more, in the case of a development stage, or by 5 percent or more, in the case of a production stage, the amount specified in the baseline description established under subsection (a) for such stage; or any milestone specified in such baseline description will be missed by more than 90 days" for first reference to "under paragraph (1)".

Subsec. (c). Pub. L. 100–26, §7(b)(6), struck out subsec. (c) which defined "major defense acquisition program".

Statutory Notes and Related Subsidiaries

Effective Date of 2021 Amendment

Effective Date of 2006 Amendment

Pub. L. 109–163, div. A, title VIII, §802(e), Jan. 6, 2006, 119 Stat. 3370, provided that:

"(1) In general.—The amendments made by this section [amending this section and former section 2433 of this title] shall take effect on the date of the enactment of this Act [Jan. 6, 2006], and shall apply with respect to any major defense acquisition program for which an original Baseline Estimate is first established before, on, or after that date.

"(2) Applicability to current major defense acquisition programs.—In the case of a major defense acquisition program for which the program acquisition unit cost or procurement unit cost, as applicable, exceeds the original Baseline Estimate for the program by more than 50 percent on the date of the enactment of this Act—

"(A) the current Baseline Estimate for the program as of such date of enactment is deemed to be the original Baseline Estimate for the program for purposes of [former] section 2433 of title 10, United States Code [see 10 U.S.C. 4371 to 4375] (as amended by this section); and

"(B) each Selected Acquisition Report submitted on the program after the date of the enactment of this Act shall reflect each of the following:

"(i) The original Baseline Estimate, as first established for the program, without adjustment or revision.

"(ii) The Baseline Estimate for the program that is deemed to be the original Baseline Estimate for the program under subparagraph (A).

"(iii) The current original Baseline Estimate for the program as adjusted or revised, if at all, in accordance with subsection (d)(2) of section 2435 of title 10, United States Code [now 10 U.S.C. 4214(d)(2)] (as added by subsection (d) of this section)."

Effective Date of 1990 Amendment

Pub. L. 101–510, div. A, title XII, §1207(b), Nov. 5, 1990, 104 Stat. 1665, provided that the amendment made by that section is effective Oct. 1, 1991.

Effective Date of 1988 Amendment

Amendment by Pub. L. 100–456 applicable as if included in the enactment of Pub. L. 100–180, see section 1233(l)(5) of Pub. L. 100–456 set out as a note under section 4172 of this title.

Effective Date

Pub. L. 99–500, §101(c) [title X, §904(b)], Oct. 18, 1986, 100 Stat. 1783–82, 1783-134, and Pub. L. 99–591, §101(c) [title X, §904(b)], Oct. 30, 1986, 100 Stat. 3341–82, 3341-134, and Pub. L. 99–661, div. A, title IX, formerly title IV, §904(b), Nov. 14, 1986, 100 Stat. 3914, renumbered title IX, Pub. L. 100–26, §3(5), Apr. 21, 1987, 101 Stat. 273, provided that: "Section 2435 of title 10, United States Code [now 10 U.S.C. 4214] (as added by subsection (a)(1)), shall apply to major defense acquisition programs that enter full-scale engineering development or full-rate production after the date of the enactment of this Act [Oct. 18, 1986]."

SUBCHAPTER II—CONTRACTING

Sec.

4231.

Major systems: determination of quantity for low-rate initial production.

4232.

Prohibition on use of lowest price technically acceptable source selection process.

4233.

[Reserved].

4234.

[Reserved].

4235.

[Reserved].

4236.

Negotiation of price for technical data before development, production, or sustainment of major weapon systems.

Editorial Notes

Amendments

2021—Pub. L. 117–81, div. A, title XVII, §1701(f)(8), Dec. 27, 2021, 135 Stat. 2139, added item 4232 and struck out former item 4232 "Use of lowest price technically acceptable source selection process: prohibition".

Statutory Notes and Related Subsidiaries

Limitation on use of Cost-Type Contracts

Pub. L. 112–239, div. A, title VIII, §811, Jan. 2, 2013, 126 Stat. 1828, as amended by Pub. L. 116–92, div. A, title IX, §902(66), Dec. 20, 2019, 133 Stat. 1550, provided that:

"(a) Prohibition With Respect to Production of Major Defense Acquisition Programs.—Not later than 120 days after the date of the enactment of this Act [Jan. 2, 2013], the Secretary of Defense shall modify the acquisition regulations of the Department of Defense to prohibit the Department from entering into cost-type contracts for the production of major defense acquisition programs.

"(b) Exception.—

"(1) In general.—The prohibition under subsection (a) shall not apply in the case of a particular cost-type contract if the service acquisition executive, in the case of a major defense acquisition program of the military department, or the Under Secretary of Defense for Acquisition and Sustainment, in the case of a Defense-wide or Defense Agency major defense acquisition program, provides written certification to the congressional defense committees [Committees on Armed Services and Appropriations of the Senate and the House of Representatives] that a cost-type contract is needed to provide a required capability in a timely and cost-effective manner.

"(2) Scope of exception.—In any case for which the Under Secretary grants an exception under paragraph (1), the Under Secretary shall take affirmative steps to make sure that the use of cost-type pricing is limited to only those line items or portions of the contract where such pricing is needed to achieve the purposes of the exception. A written certification under paragraph (1) shall be accompanied by an explanation of the steps taken under this paragraph.

"(c) Definitions.—In this section:

"(1) Major defense acquisition program.—The term 'major defense acquisition program' has the meaning given the term in section 2430(a) of title 10, United States Code [now 10 U.S.C. 4201].

"(2) Production of a major defense acquisition program.—The term 'production of a major defense acquisition program' means the production and deployment of a major system that is intended to achieve an operational capability that satisfies mission needs, or any activity otherwise defined as Milestone C under Department of Defense Instruction 5000.02 or related authorities.

"(3) Contract for the production of a major defense acquisition program.—The term 'contract for the production of a major defense acquisition program'—

"(A) means a prime contract for the production of a major defense acquisition program; and

"(B) does not include individual line items for segregable efforts or contracts for the incremental improvement of systems that are already in production (other than contracts for major upgrades that are themselves major defense acquisition programs).

"(d) Applicability.—The requirements of this section shall apply to contracts for the production of major defense acquisition programs entered into on or after October 1, 2014."

Estimates of Potential Termination Liability of Contracts for the Development or Production of Major Defense Acquisition Programs

Pub. L. 112–239, div. A, title VIII, §812, Jan. 2, 2013, 126 Stat. 1829, directed the Under Secretary of Defense for Acquisition, Technology, and Logistics to review, not later than 180 days after Jan. 2, 2013, relevant acquisition guidance and ensure that program managers for major defense acquisition programs are preparing estimates of potential termination liability for certain covered contracts and directed the Comptroller General of the United States to submit to the congressional defense committees, not later than 270 days after Jan. 2, 2013, a report on the extent to which the Department of Defense is considering potential termination liability as a factor in entering into and in terminating covered contracts.

Determination of Contract Type for Development Programs

Pub. L. 109–364, div. A, title VIII, §818(b)–(f), Oct. 17, 2006, 120 Stat. 2329, 2330, as amended by Pub. L. 117–263, div. A, title VIII, §808(a), Dec. 23, 2022, 136 Stat. 2705, provided that:

"(b) Modification of Regulations.—Not later than 120 days after the date of the enactment of this Act [Oct. 17, 2006], the Secretary of Defense shall modify the regulations of the Department of Defense regarding the determination of contract type for development programs.

"(c) Elements.—As modified under subsection (b), the regulations shall require the Milestone Decision Authority for a major defense acquisition program to select the contract type for a development program at the time of a decision on Milestone B approval (or Key Decision Point B approval in the case of a space program) that is consistent with the level of program risk for the program. The Milestone Decision Authority may select—

"(1) a fixed-price type contract (including a fixed price incentive contract); or

"(2) a cost type contract.

"(d) Conditions With Respect to Authorization of Cost Type Contract.—As modified under subsection (b), the regulations shall provide that the Milestone Decision Authority may authorize the use of a cost type contract under subsection (c) for a development program only upon a written determination that—

"(1) the program is so complex and technically challenging that it would not be practicable to reduce program risk to a level that would permit the use of a fixed-price type contract; and

"(2) the complexity and technical challenge of the program is not the result of a failure to meet the requirements established in section 2366a of title 10, United States Code [now 10 U.S.C. 4251].

"(e) Justification for Selection of Contract Type.—As modified under subsection (b), the regulations shall require the Milestone Decision Authority to document the basis for the contract type selected for a program. The documentation shall include an explanation of the level of program risk for the program and, if the Milestone Decision Authority determines that the level of program risk is high, the steps that have been taken to reduce program risk and reasons for proceeding with Milestone B approval despite the high level of program risk.

"(f) Conditions With Respect to Certain Low-rate Initial Production.—

"(1) In general.—The number of low-rate initial production lots associated with a major defense acquisition program may not be more than one if—

"(A) the milestone decision authority authorizes the use of a fixed-price type contract at the time of a decision on Milestone B approval; and

"(B) the scope of the work of the fixed-price type contract includes both the development and low-rate initial production of items for such major defense acquisition program.

"(2) Waiver.—The limitation in paragraph (1) may be waived by the applicable service acquisition executive or a designee of such executive if—

"(A) such waiver authority is not delegated to the level of the contracting officer; and

"(B) written notification of a granted waiver, including the associated rationale, is provided to the congressional defense committees [Committees on Armed Services and Appropriations of the Senate and the House of Representatives] not later than 30 days after issuance of the waiver.

"(3) Definitions.—In this subsection:

"(A) The term 'low-rate initial production' has the meaning given under section 4231 of title 10, United States Code.

"(B) The term 'milestone decision authority' has the meaning given in section 4211 of title 10, United States Code.

"(C) The term 'major defense acquisition program' has the meaning given in section 4201 of title 10, United States Code.

"(D) The term 'Milestone B approval' has the meaning given in section 4172(e) of title 10, United States Code."

[Pub. L. 117–263, div. A, title VIII, §808(b), Dec. 23, 2022, 136 Stat. 2705, provided that: "Not later than 120 days after the date of the enactment of this Act [Dec. 23, 2022], the Secretary of Defense shall revise the Department of Defense Supplement to the Federal Acquisition Regulation and any applicable regulations regarding the use of fixed-price type contracts for a major defense acquisition program (as defined in section 4201 of title 10, United States Code) to carry out this section [enacting section 818(f) of Pub. L. 109–364, set out above] and the amendments made by this section."]

§4231. Major systems: determination of quantity for low-rate initial production

(a) Determination of Quantities To Be Procured for Low-Rate Initial Production.—(1) In the course of the development of a major system, the determination of what quantity of articles of that system should be procured for low-rate initial production (including the quantity to be procured for preproduction verification articles) shall be made—

(A) when the milestone B decision with respect to that system is made; and

(B) by the official of the Department of Defense who makes that decision.

(2) In this section, the term "milestone B decision" means the decision to approve the system development and demonstration of a major system by the official of the Department of Defense designated to have the authority to make that decision.

(3) Any increase from a quantity determined under paragraph (1) may only be made with the approval of the official making the determination.

(4) The quantity of articles of a major system that may be procured for low-rate initial production may not be less than one operationally configured production unit unless another quantity is established at the milestone B decision.

(5) The Secretary of Defense shall include a statement of the quantity determined under paragraph (1) in the first SAR submitted with respect to the program concerned after that quantity is determined. If the quantity exceeds 10 percent of the total number of articles to be produced, as determined at the milestone B decision with respect to that system, the Secretary shall include in the statement the reasons for such quantity. For purposes of this paragraph, the term "SAR" means a Selected Acquisition Report submitted under section 4351 of this title.

(b) Low-Rate Initial Production of Weapon Systems.—Except as provided in subsection (c), low-rate initial production with respect to a new system is production of the system in the minimum quantity necessary—

(1) to provide production-configured or representative articles for operational tests pursuant to section 4171 of this title;

(2) to establish an initial production base for the system; and

(3) to permit an orderly increase in the production rate for the system sufficient to lead to full-rate production upon the successful completion of operational testing.

(c) Low-Rate Initial Production of Naval Vessel and Satellite Programs.—With respect to naval vessel programs and military satellite programs, low-rate initial production is production of items at the minimum quantity and rate that (1) preserves the mobilization production base for that system, and (2) is feasible, as determined pursuant to regulations prescribed by the Secretary of Defense.

(Added Pub. L. 101–189, div. A, title VIII, §803(a), Nov. 29, 1989, 103 Stat. 1487, §2400; amended Pub. L. 103–355, title III, §3015, Oct. 13, 1994, 108 Stat. 3332; Pub. L. 104–106, div. A, title X, §1062(d), div. D, title XLIII, §4321(b)(13), Feb. 10, 1996, 110 Stat. 444, 673; Pub. L. 107–107, div. A, title VIII, §821(c), Dec. 28, 2001, 115 Stat. 1182; renumbered §4231 and amended Pub. L. 116–283, div. A, title XVIII, §1847(c)(1), Jan. 1, 2021, 134 Stat. 4254; Pub. L. 117–81, div. A, title XVII, §1701(o)(6)(C)(ii), Dec. 27, 2021, 135 Stat. 2147.)

Editorial Notes

Amendments

2021—Pub. L. 116–283, §1847(c)(1)(B), amended section catchline generally. Prior to amendment, section catchline read as follows: "Low-rate initial production of new systems".

Pub. L. 116–283, §1847(c)(1)(A), renumbered section 2400 of this title as this section.

Subsec. (a)(5). Pub. L. 116–283, §1847(c)(1)(A)(i), as amended by Pub. L. 117–81, §1701(o)(6)(C)(ii), substituted "section 4351" for "section 2432".

Subsec. (b)(1). Pub. L. 116–283, §1847(c)(1)(A)(ii), substituted "section 4171" for "section 2399".

2001—Subsec. (a)(1)(A). Pub. L. 107–107, §821(c)(1), substituted "milestone B" for "milestone II".

Subsec. (a)(2). Pub. L. 107–107 substituted "milestone B" for "milestone II" and "system development and demonstration" for "engineering and manufacturing development".

Subsec. (a)(4), (5). Pub. L. 107–107, §821(c)(1), substituted "milestone B" for "milestone II".

1996—Subsec. (a)(5). Pub. L. 104–106, §4321(b)(13), substituted "this paragraph" for "the preceding sentence".

Subsec. (c). Pub. L. 104–106, §1062(d), struck out "(1)" before "With respect to", redesignated subpars. (A) and (B) of former par. (1) as pars. (1) and (2), respectively, and struck out former par. (2) which read as follows: "For each naval vessel program and military satellite program, the Secretary of Defense shall submit to Congress a report providing—

"(A) an explanation of the rate and quantity prescribed for low-rate initial production and the considerations in establishing that rate and quantity;

"(B) a test and evaluation master plan for that program; and

"(C) an acquisition strategy for that program that has been approved by the Secretary, to include the procurement objectives in terms of total quantity of articles to be procured and annual production rates."

1994—Subsec. (a)(2). Pub. L. 103–355, §3015(1), substituted "this section" for "paragraph (1)" and "engineering and manufacturing development" for "full-scale engineering development".

Subsec. (a)(4). Pub. L. 103–355, §3015(2), (3), added par. (4) and redesignated former par. (4) as (5).

Subsec. (a)(5). Pub. L. 103–355, §3015(2), redesignated par. (4) as (5) and inserted after first sentence "If the quantity exceeds 10 percent of the total number of articles to be produced, as determined at the milestone II decision with respect to that system, the Secretary shall include in the statement the reasons for such quantity."

Statutory Notes and Related Subsidiaries

Effective Date of 2021 Amendment

Effective Date of 1996 Amendment

For effective date and applicability of amendment by section 4321(b)(13) of Pub. L. 104–106, see section 4401 of Pub. L. 104–106, set out as a note under section 2220 of this title.

§4232. Prohibition on use of lowest price technically acceptable source selection process

(a) In General.—The Department of Defense shall not use a lowest price technically acceptable source selection process for the engineering and manufacturing development contract of a major defense acquisition program.

(b) Definitions.—In this section:

(1) Lowest price technically acceptable source selection process.—The term "lowest price technically acceptable source selection process" has the meaning given that term in part 15 of the Federal Acquisition Regulation.

(2) Engineering and manufacturing development contract.—The term "engineering and manufacturing development contract" means a prime contract for the engineering and manufacturing development of a major defense acquisition program.

(Added Pub. L. 115–91, div. A, title VIII, §832(a)(1), Dec. 12, 2017, 131 Stat. 1468, §2442; renumbered §4232 and amended Pub. L. 116–283, div. A, title XVIII, §1847(c)(2), Jan. 1, 2021, 134 Stat. 4254.)

Editorial Notes

Amendments

2021—Pub. L. 116–283 renumbered section 2442 of this title as this section and, in subsec. (b), redesignated par. (3) as (2) and struck out former par. (2) which defined "major defense acquisition program".

Statutory Notes and Related Subsidiaries

Effective Date of 2021 Amendment

Effective Date

Pub. L. 115–91, div. A, title VIII, §832(b), Dec. 12, 2017, 131 Stat. 1468, provided that: "The requirements of section 2442 of title 10, United States Code [now 10 U.S.C. 4232], as added by subsection (a), shall apply to major defense acquisition programs for which budgetary authority is requested for fiscal year 2019 or a subsequent fiscal year."

§4236. Negotiation of price for technical data before development, production, or sustainment of major weapon systems

The Secretary of Defense shall ensure, to the maximum extent practicable, that the Department of Defense, before selecting a contractor for the engineering and manufacturing development of a major weapon system, production of a major weapon system, or sustainment of a major weapon system, negotiates a price for technical data to be delivered under a contract for such development, production, or sustainment.

(Added Pub. L. 115–91, div. A, title VIII, §835(a)(1), Dec. 12, 2017, 131 Stat. 1471, §2439; amended Pub. L. 115–232, div. A, title VIII, §867, Aug. 13, 2018, 132 Stat. 1901; renumbered §4236, Pub. L. 116–283, div. A, title XVIII, §1847(c)(3), Jan. 1, 2021, 134 Stat. 4254.)

Editorial Notes

Amendments

2021—Pub. L. 116–283 renumbered section 2439 of this title as this section.

2018—Pub. L. 115–232, §867(4), substituted ", production, or sustainment" for "or production" in section catchline.

Pub. L. 115–232, §867(1)–(3), inserted ", to the maximum extent practicable," after "shall ensure" and substituted "production of a major weapon system, or sustainment of a major weapon system" for "or for the production of a major weapon system" and ", production, or sustainment" for "or production".

Statutory Notes and Related Subsidiaries

Effective Date of 2021 Amendment

Effective Date

Pub. L. 115–91, div. A, title VIII, §835(a)(3), Dec. 12, 2017, 131 Stat. 1471, provided that: "Section 2439 of title 10, United States Code [now 10 U.S.C. 4236], as added by paragraph (1), shall apply with respect to any contract for engineering and manufacturing development of a major weapon system, or for the production of a major weapon system, for which the contract solicitation is issued on or after the date occurring one year after the date of the enactment of this Act [Dec. 12, 2017]."

SUBCHAPTER III—MILESTONES FOR MAJOR DEFENSE ACQUISITION PROGRAMS

Sec.

4251.

Major defense acquisition programs: determination required before Milestone A approval.

4252.

Major defense acquisition programs: certification required before Milestone B approval.

4253.

Major defense acquisition programs: submissions to Congress on Milestone C.

4254.

[Reserved].

§4251. Major defense acquisition programs: determination required before Milestone A approval

(a) Responsibilities.—Before granting Milestone A approval for a major defense acquisition program or a major subprogram, the milestone decision authority for the program or subprogram shall ensure that—

(1) information about the program or subprogram is sufficient to warrant entry of the program or subprogram into the risk reduction phase;

(2) the Secretary of the military department concerned and the Chief of the armed force concerned concur in the cost, schedule, technical feasibility, and performance trade-offs that have been made with regard to the program; and

(3) there are sound plans for progression of the program or subprogram to the development phase.

(b) Written Determination Required.—A major defense acquisition program or subprogram may not receive Milestone A approval or otherwise be initiated prior to Milestone B approval until the milestone decision authority determines in writing, after consultation with the Joint Requirements Oversight Council on matters related to program requirements and military needs—

(1) that the program fulfills an approved initial capabilities document;

(2) that the program has been developed in light of appropriate market research;

(3) if the program duplicates a capability already provided by an existing system, the duplication provided by such program is necessary and appropriate;

(4) that, with respect to any identified areas of risk, including risks determined by the identification of critical technologies required under section 4272(a)(1) of this title or any other risk assessment, there is a plan to reduce the risk;

(5) that planning for sustainment has been addressed and that a determination of applicability of core logistics capabilities requirements has been made;

(6) that an analysis of alternatives has been performed consistent with study guidance developed by the Director of Cost Assessment and Program Evaluation;

(7) that a cost estimate for the program has been submitted, with the concurrence of the Director of Cost Assessment and Program Evaluation, and that the level of resources required to develop, procure, and sustain the program is sufficient for successful program execution;

(8) that, with respect to a program initiated after January 1, 2019, technology shall be developed in the program (after Milestone A approval) only if the milestone decision authority determines with a high degree of confidence that such development will not delay the fielding target of the program, or, if the milestone decision authority does not make such determination for a major system component being developed under the program, the milestone decision authority ensures that the technology related to the major system component shall be sufficiently matured and demonstrated in a relevant environment (after Milestone A approval) separate from the program using the prototyping authorities in subchapter II of chapter 327 of this title or other authorities, as appropriate, and have an effective plan for adoption or insertion by the relevant program; and

(9) that the program or subprogram meets any other considerations the milestone decision authority considers relevant.

(1) Brief summary report.—Not later than 15 days after granting Milestone A approval for a major defense acquisition program, the milestone decision authority for the program shall provide to the congressional defense committees and, in the case of intelligence or intelligence-related activities, the congressional intelligence committees a brief summary report that contains the following elements:

(A) The program cost and fielding targets established under section 4271(a) of this title.

(B) The estimated cost and schedule for the program established by the military department concerned, including—

(i) the dollar values estimated for the program acquisition unit cost and total life-cycle cost; and

(ii) the planned dates for each program milestone and initial operational capability.

(C) The independent estimated cost for the program established pursuant to section 3221(b)(6) of this title, and any independent estimated schedule for the program, including—

(i) as assessment of the major contributors to the program acquisition unit cost and total life-cycle cost; and

(ii) the planned dates for each program milestone and initial operational capability.

(D) A summary of the technical or manufacturing risks associated with the program, as determined by the military department concerned, including identification of any critical technologies or manufacturing processes that need to be matured.

(E) A summary of the independent technical risk assessment conducted or approved under section 4272 of this title, including identification of any critical technologies or manufacturing processes that need to be matured.

(F) A summary of any sufficiency review conducted by the Director of Cost Assessment and Program Evaluation of the analysis of alternatives performed for the program (as referred to in subsection (b)(6)).

(G) Any other information the milestone decision authority considers relevant.

(2) Additional information.—(A) At the request of any of the congressional defense committees or, in the case of intelligence or intelligence-related activities, the congressional intelligence committees, the milestone decision authority shall submit to the committee an explanation of the basis for a determination made under subsection (b) with respect to a major defense acquisition program, together with a copy of the written determination, or further information or underlying documentation for the information in a brief summary report submitted under paragraph (1), including the independent cost and schedule estimates and the independent technical risk assessments referred to in that paragraph.

(B) The explanation or information shall be submitted in unclassified form, but may include a classified annex.

(d) Definitions.—In this section:

(1) The term "initial capabilities document" means any capabilities requirement document approved by the Joint Requirements Oversight Council that establishes the need for a materiel approach to resolve a capability gap.

(2) The term "Milestone A approval" means a decision to enter into technology maturation and risk reduction pursuant to guidance prescribed by the Secretary of Defense for the management of Department of Defense acquisition programs.

(3) The term "Milestone B approval" has the meaning provided that term in section 4172(e)(7) of this title.

(4) The term "core logistics capabilities" means the core logistics capabilities identified under section 2464(a) of this title.

(5) The term "milestone decision authority", with respect to a major defense acquisition program or a major subprogram, means the official within the Department of Defense designated with the overall responsibility and authority for acquisition decisions for the program or subprogram, including authority to approve entry of the program or subprogram into the next phase of the acquisition process.

(6) The term "fielding target" has the meaning given that term in section 4271(a) of this title.

(7) The term "major system component" has the meaning given that term in section 4401(b)(3) of this title.

(8) The term "congressional intelligence committees" has the meaning given that term in section 437(c) of this title.

(Added Pub. L. 110–181, div. A, title IX, §943(a)(1), Jan. 28, 2008, 122 Stat. 288, §2366b; renumbered §2366a and amended Pub. L. 110–417, [div. A], title VIII, §813(b), (e)(1), Oct. 14, 2008, 122 Stat. 4527; Pub. L. 111–23, title I, §101(d)(3), title II, §§201(e), 204(a), (b), May 22, 2009, 123 Stat. 1710, 1720, 1723; Pub. L. 111–383, div. A, title VIII, §814(b), title X, §1075(b)(33), Jan. 7, 2011, 124 Stat. 4266, 4370; Pub. L. 112–81, div. A, title VIII, §801(a), (e)(1), Dec. 31, 2011, 125 Stat. 1482, 1483; Pub. L. 112–239, div. A, title III, §322(e)(1), title X, §1076(a)(10), Jan. 2, 2013, 126 Stat. 1695, 1948; Pub. L. 114–92, div. A, title VIII, §823(a), Nov. 25, 2015, 129 Stat. 902; Pub. L. 114–328, div. A, title VIII, §§806(b), 807(d), 808(a), Dec. 23, 2016, 130 Stat. 2259, 2262; Pub. L. 115–232, div. A, title VIII, §831(b)(2), Aug. 13, 2018, 132 Stat. 1857; Pub. L. 116–92, div. A, title XVII, §1731(a)(44), Dec. 20, 2019, 133 Stat. 1814; renumbered §4251 and amended Pub. L. 116–283, div. A, title XVIII, §1847(d)(1), Jan. 1, 2021, 134 Stat. 4254.)

Editorial Notes

Amendments

2021—Pub. L. 116–283, §1847(d)(1)(A), renumbered section 2366a of this title as this section.

Subsec. (b)(4). Pub. L. 116–283, §1847(d)(1)(B)(i), substituted "section 4272(a)(1)" for "section 2448b(a)(1)".

Subsec. (b)(8). Pub. L. 116–283, §1847(d)(1)(B)(ii), substituted "subchapter II of chapter 327" for "subchapter II of chapter 144B".

Subsec. (c)(1)(A). Pub. L. 116–283, §1847(d)(1)(C)(i), substituted "section 4271(a)" for "section 2448a(a)".

Subsec. (c)(1)(C). Pub. L. 116–283, §1847(d)(1)(C)(ii), substituted "section 3221(b)(6)" for "section 2334(a)(6)".

Subsec. (c)(1)(E). Pub. L. 116–283, §1847(d)(1)(C)(iii), substituted "section 4272" for "section 2448b".

Subsec. (d)(1), (2). Pub. L. 116–283, §1847(d)(1)(D)(i), redesignated pars. (2) and (3) as (1) and (2), respectively, and struck out former par. (1) which defined "major defense acquisition program".

Subsec. (d)(3). Pub. L. 116–283, §1847(d)(1)(D)(ii), substituted "section 4172(e)(7)" for "section 2366(e)(7)".

Pub. L. 116–283, §1847(d)(1)(D)(i), redesignated par. (4) as (3). Former par. (3) redesignated (2).

Subsec. (d)(4), (5). Pub. L. 116–283, §1847(d)(1)(D)(i), redesignated pars. (5) and (7) as (4) and (5), respectively. Former par. (4) redesignated (3).

Subsec. (d)(6). Pub. L. 116–283, §1847(d)(1)(D)(iii), substituted "section 4271(a)" for "section 2448a(a)".

Pub. L. 116–283, §1847(d)(1)(D)(i), redesignated par. (8) as (6) and struck out former par. (6) which defined "major subprogram".

Subsec. (d)(7). Pub. L. 116–283, §1847(d)(1)(D)(iv), substituted "section 4401(b)(3)" for "section 2446a(b)(3)".

Pub. L. 116–283, §1847(d)(1)(D)(i), redesignated par. (9) as (7). Former par. (7) redesignated (5).

Subsec. (d)(8) to (10). Pub. L. 116–283, §1847(d)(1)(D)(i), redesignated pars. (8) to (10) as (6) to (8), respectively.

2019—Subsec. (c)(1)(F). Pub. L. 116–92 substituted "subsection (b)(6)" for "section 2366a(b)(6) of this title".

2018—Subsec. (c)(1)(A). Pub. L. 115–232 struck out "by the Secretary of Defense" after "established".

2016—Subsec. (b)(4). Pub. L. 114–328, §807(d), inserted ", including risks determined by the identification of critical technologies required under section 2448b(a)(1) of this title or any other risk assessment" after "areas of risk".

Subsec. (b)(8), (9). Pub. L. 114–328, §806(b), added par. (8) and redesignated former par. (8) as (9).

Subsec. (c). Pub. L. 114–328, §808(a)(1), amended subsec. (c) generally. Prior to amendment, text of subsec. (c) read as follows: "At the request of any of the congressional defense committees, the Secretary of Defense shall submit to the committee an explanation of the basis for a determination made under subsection (b) with respect to a major defense acquisition program, together with a copy of the written determination. The explanation shall be submitted in unclassified form, but may include a classified annex."

Subsec. (d)(8) to (10). Pub. L. 114–328, §808(a)(2), added pars. (8) to (10).

2015—Pub. L. 114–92 amended section generally. Prior to amendment, section related to certification required before Milestone A approval of major defense acquisition programs.

2013—Pub. L. 112–239, §1076(a)(10)(C), made technical amendment to directory language of Pub. L. 112–81, §801(e)(1)(A). See 2011 Amendment note below.

Subsec. (a)(4). Pub. L. 112–239, §322(e)(1), substituted "core logistics capabilities" for "core depot-level maintenance and repair capabilities".

Subsec. (a)(5), (6). Pub. L. 112–239, §1076(a)(10)(A), made technical amendment to directory language of Pub. L. 112–81, §801(a)(1)(B). See 2011 Amendment notes below.

Subsec. (c)(7). Pub. L. 112–239, §1076(a)(10)(B), made technical amendment to directory language of Pub. L. 112–81, §801(a)(2). See 2011 Amendment note below.

Pub. L. 112–239, §322(e)(1), substituted "core logistics capabilities" for "core depot-level maintenance and repair capabilities" in two places.

2011—Pub. L. 112–81, §801(e)(1)(A), as amended by Pub. L. 112–239, §1076(a)(10)(C), struck out "or Key Decision Point A" after "Milestone A" in section catchline.

Subsec. (a). Pub. L. 112–81, §801(e)(1)(B), struck out ", or Key Decision Point A approval in the case of a space program," after "Milestone A approval" and ", or Key Decision Point B approval in the case of a space program," after "Milestone B approval" in introductory provisions.

Subsec. (a)(2). Pub. L. 112–81, §801(a)(1)(A), substituted "function" for "core competency".

Subsec. (a)(4). Pub. L. 112–81, §801(a)(1)(C), added par. (4). Former par. (4) redesignated (5).

Subsec. (a)(5). Pub. L. 112–81, §801(a)(1)(B), as amended by Pub. L. 112–239, §1076(a)(10)(A), redesignated par. (4) as (5). Former par. (5) redesignated (6).

Subsec. (a)(6). Pub. L. 112–81, §801(a)(1)(D), substituted "develop, procure, and sustain" for "develop and procure".

Pub. L. 112–81, §801(a)(1)(B), as amended by Pub. L. 112–239, §1076(a)(10)(A), redesignated par. (5) as (6).

Subsec. (b)(1). Pub. L. 112–81, §801(e)(1)(C)(i), struck out "(or Key Decision Point A approval in the case of a space program)" after "Milestone A approval".

Pub. L. 111–383, §814(b)(1)(A), substituted "a major defense acquisition program certified by the Milestone Decision Authority under subsection (a) or a designated major subprogram of such program, if the projected cost of the program or subprogram" for "a major defense acquisition program certified by the Milestone Decision Authority under subsection (a), if the projected cost of the program".

Subsec. (b)(2). Pub. L. 111–383, §814(b)(1)(B), inserted "or designated major subprogram" after "major defense acquisition program".

Subsec. (b)(2)(C)(ii). Pub. L. 112–81, §801(e)(1)(C)(ii), struck out ", or Key Decision Point A approval in the case of a space program," after "Milestone A approval".

Subsec. (c). Pub. L. 111–383, §1075(b)(33)(A), inserted a space after "(c)".

Subsec. (c)(2) to (5). Pub. L. 111–383, §814(b)(2), added par. (2) and redesignated former pars. (2) to (4) as (3) to (5), respectively. Former par. (5) redesignated (6).

Pub. L. 111–383, §1075(b)(33)(B), which directed substitution of "section 118b(c)(3) of this title" for "section 125a(a) of this title" in par. (4), was executed by making the substitution in par. (5) to reflect the probable intent of Congress and the amendment by Pub. L. 111–383, §814(b)(2)(A). See above.

Subsec. (c)(6). Pub. L. 111–383, §814(b)(2)(A), redesignated par. (5) as (6).

Subsec. (c)(7). Pub. L. 112–81, §801(a)(2), as amended by Pub. L. 112–239, §1076(a)(10)(B), added par. (7).

2009—Subsec. (a). Pub. L. 111–23, §204(a), substituted "may not receive Milestone A approval, or Key Decision Point A approval in the case of a space program, or otherwise be initiated prior to Milestone B approval, or Key Decision Point B approval in the case of a space program," for "may not receive Milestone A approval, or Key Decision Point A approval in the case of a space program," in introductory provisions.

Subsec. (a)(3). Pub. L. 111–23, §201(e)(1), struck out "and" at end.

Subsec. (a)(4). Pub. L. 111–23, §201(e)(3), added par. (4). Former par. (4) redesignated (5).

Pub. L. 111–23, §101(d)(3), inserted ", with the concurrence of the Director of Cost Assessment and Program Evaluation," after "has been submitted".

Subsec. (a)(5). Pub. L. 111–23, §201(e)(2), redesignated par. (4) as (5).

Subsec. (b). Pub. L. 111–23, §204(b), designated existing provisions as par. (1), substituted "by at least 25 percent, or the program manager determines that the period of time required for the delivery of an initial operational capability is likely to exceed the schedule objective established pursuant to section 181(b)(5) of this title by more than 25 percent," for "by at least 25 percent,", and added par. (2).

2008—Pub. L. 110–417, §813(b), renumbered section 2366b of this title as this section.

Subsec. (a)(1), (2). Pub. L. 110–417, §813(e)(1)(A), substituted "program" for "system".

Subsec. (a)(3). Pub. L. 110–417, §813(e)(1)(B), substituted "if the program" for "if the system" and "such program" for "such system".

Subsec. (a)(4). Pub. L. 110–417, §813(e)(1)(A), substituted "program" for "system" in two places.

Subsec. (b). Pub. L. 110–417, §813(e)(1)(C), substituted "major defense acquisition program" for "major system", "cost of the program" for "cost of the system", "estimate for the program" for "estimate for the system", "the program concerned" for "the system concerned", and "procure the program" for "procure the system".

Subsec. (c)(1). Pub. L. 110–417, §813(e)(1)(D), substituted " 'major defense acquisition program' " for " 'major system' " and "2430" for "2302(5)".

Statutory Notes and Related Subsidiaries

Effective Date of 2021 Amendment

Effective Date of 2013 Amendment

Pub. L. 112–239, div. A, title III, §322(f), Jan. 2, 2013, 126 Stat. 1695, provided that: "This section [enacting sections 2460 and 2464 of this title, amending this section and sections 2366b, 2460, and 2464 of this title, repealing sections 2460 and 2464 of this title, and amending provisions set out as a note under this section] and the amendments made by this section shall take effect on December 31, 2011, the date of the enactment of the National Defense Authorization Act for Fiscal Year 2012 [Pub. L. 112–81], immediately after the enactment of that Act."

Pub. L. 112–239, div. A, title X, §1076(a), Jan. 2, 2013, 126 Stat. 1947, provided that the amendment made by section 1076(a)(10) is effective Dec. 31, 2011, and as if included in Pub. L. 112–81 as enacted.

Effective Date

Pub. L. 110–181, div. A, title IX, §943(c), Jan. 28, 2008, 122 Stat. 289, as amended by Pub. L. 110–417, [div. A], title VIII, §813(e)(2)(B), Oct. 14, 2008, 122 Stat. 4528, provided that: "Section 2366b of title 10, United States Code [now 10 U.S.C. 4251], as added by subsection (a), shall apply to major defense acquisition programs on and after March 1, 2008. In the case of the certification required by [former] paragraph (2) of subsection (a) of such section, during the period prior to the completion of the first quadrennial roles and missions review required by [former] section 118b of title 10, United States Code, the certification required by that paragraph shall be that the system is being executed by an entity with a relevant core competency as identified by the Secretary of Defense."

Analysis of Alternatives Pursuant to Materiel Development Decisions

Pub. L. 116–92, div. A, title VIII, §832, Dec. 20, 2019, 133 Stat. 1493, provided that:

"(a) Timeline.—Not later than 180 days after the date of the enactment of this Act [Dec. 20, 2019], the Secretary of Defense shall update existing guidance for analyses of alternatives conducted pursuant to a materiel development decision for a major defense acquisition program to incorporate the following:

"(1) Study completion within nine months.

"(2) Study guidance issued by the Director, Cost Assessment and Program Evaluation of a scope designed to provide for reasonable completion of the study within the nine-month period.

"(3) Procedures for waiver of the timeline requirements of this subsection on a case-by-case basis if—

"(A) the subject of the analysis is of extreme technical complexity;

"(B) collection of additional intelligence is required to inform the analysis;

"(C) insufficient technical expertise is available to complete the analysis; or

"(D) the Secretary determines that there [are] other sufficient reasons for delay of the analysis.

"(b) Reporting.—If an analysis of alternatives cannot be completed within the allotted time, or a waiver is used, the Secretary shall report to the congressional defense committees [Committees on Armed Services and Appropriations of the Senate and the House of Representatives] the following information:

"(1) For a waiver, the basis for use of the waivers, including the reasons why the study cannot be completed within the allotted time.

"(2) For a study estimated to take more than nine months—

"(A) an estimate of when the analysis will be completed;

"(B) an estimate of any additional costs to complete the analysis; and

"(C) other relevant information pertaining to the analysis and its completion.

"(c) Report on Analyses of Alternatives.—

"(1) Assessment.—

"(A) In general.—The Under Secretary of Defense for Acquisition and Sustainment shall engage with an independent entity, including under the Program for Acquisition Innovation Research, to assess the conduct of analyses of alternatives.

"(B) Elements.—The assessment required under subparagraph (A) shall—

"(i) assess the time required to complete analyses of alternatives within the Department of Defense completed over the last five fiscal years, as compared with best practices;

"(ii) provide recommendations and policy options to improve analyses of alternatives; and

"(iii) discuss any other matters as identified by the Under Secretary.

"(C) Access to data.—The Under Secretary shall ensure that the independent entity is provided access to the data, information, and resources necessary to complete the required analyses and assessment.

"(2) Report.—Not later than one year after the date of the enactment of this Act, the Under Secretary shall submit to the congressional defense committees a report including the assessment required under paragraph (1) and a review and assessment by the Under Secretary of the findings made in the assessment."

Milestone A Decisions

Pub. L. 114–92, div. A, title VIII, §802(d)(2), Nov. 25, 2015, 129 Stat. 880, provided that: "The Chief of the Armed Force concerned shall advise the milestone decision authority for a major defense acquisition program of the Chief's views on cost, schedule, technical feasibility, and performance trade-offs that have been made with regard to the program, as provided in section 2366a(a)(2) of title 10, United States Code [now 10 U.S.C. 4251(a)(2)], as amended by section 823 of this Act, prior to a Milestone A decision on the program."

Guidance

Pub. L. 112–81, div. A, title VIII, §801(d), Dec. 31, 2011, 125 Stat. 1483, provided that: "Not later than 120 days after the date of the enactment of this Act [Dec. 31, 2011], the Secretary of Defense shall issue guidance implementing the amendments made by subsections (a) and (b) [amending this section and section 2366b of this title], and subsection (c) [set out as a note preceding section 4321 of this title], in a manner that is consistent across the Department of Defense."

§4252. Major defense acquisition programs: certification required before Milestone B approval

(a) Certifications and Determination Required.—A major defense acquisition program may not receive Milestone B approval until the milestone decision authority—

(1) has received a preliminary design review and conducted a formal post-preliminary design review assessment, and certifies on the basis of such assessment that the program demonstrates a high likelihood of accomplishing its intended mission;

(2) further certifies that the technology in the program has been demonstrated in a relevant environment, as determined by the milestone decision authority on the basis of an independent review and technical risk assessment conducted under section 4272 of this title;

(3) determines in writing that—

(A) the program is affordable when considering the ability of the Department of Defense to accomplish the program's mission using alternative systems;

(B) appropriate trade-offs among cost, schedule, technical feasibility, and performance objectives have been made to ensure that the program is affordable when considering the per unit cost and the total life-cycle cost;

(C) reasonable cost and schedule estimates have been developed to execute, with the concurrence of the Director of Cost Assessment and Program Evaluation, the product development and production plan under the program;

(D) the estimated procurement unit cost for the program and the estimated date for initial operational capability for the baseline description for the program (established under section 4214 of this title) do not exceed the program cost and fielding targets established under section 4271(a) of this title, or, if such estimated cost is higher than the program cost targets or if such estimated date is later than the fielding target, the program cost targets have been increased or the fielding target has been delayed by the milestone decision authority;

(E) funding is expected to be available to execute the product development and production plan for the program, consistent with the estimates described in subparagraph (C) for the program;

(F) appropriate market research has been conducted prior to technology development to reduce duplication of existing technology and products;

(G) the Department of Defense has completed an analysis of alternatives with respect to the program;

(H) the Joint Requirements Oversight Council has accomplished its duties with respect to the program pursuant to section 181(b) of this title, including an analysis of the operational requirements for the program;

(I) life-cycle sustainment planning, including corrosion prevention and mitigation planning, has identified and evaluated relevant sustainment costs throughout development, production, operation, sustainment, and disposal of the program, and any alternatives, and that such costs are reasonable and have been accurately estimated;

(J) an estimate has been made of the requirements for core logistics capabilities and the associated sustaining workloads required to support such requirements;

(K) there is a plan to mitigate and account for any costs in connection with any anticipated de-certification of cryptographic systems and components during the production and procurement of the major defense acquisition program to be acquired;

(L) the program complies with all relevant policies, regulations, and directives of the Department of Defense;

(M) the Secretary of the military department concerned and the Chief of the armed force concerned concur in the trade-offs made in accordance with subparagraph (B);

(N) the requirements of section 4402(e) of this title are met;

(O) appropriate actions have been taken to negotiate and enter into a contract or contract options for the technical data required to support the program; and

(P) has approved the life cycle sustainment plan required under section 4324(b) of this title.¹

(4) in the case of a space system, performs a cost benefit analysis for any new or follow-on satellite system using a dedicated ground control system instead of a shared ground control system, except that no cost benefit analysis is required to be performed under this paragraph for any Milestone B approval of a space system after December 31, 2019; and

(5) in the case of a naval vessel program, certifies compliance with the requirements of section 8669b of this title.

(b) Changes to Certifications or Determination.—(1) The program manager for a major defense acquisition program that has received certifications or a determination under subsection (a) shall immediately notify the milestone decision authority of any changes to the program or a designated major subprogram of such program that—

(A) alter the substantive basis for the certifications or determination of the milestone decision authority relating to any component of such certifications or determination specified in paragraph (1), (2), or (3) of subsection (a); or

(B) otherwise cause the program or subprogram to deviate significantly from the material provided to the milestone decision authority in support of such certifications or determination.

(2) Upon receipt of information under paragraph (1), the milestone decision authority may withdraw the certifications or determination concerned or rescind Milestone B approval if the milestone decision authority determines that such certifications, determination, or approval are no longer valid.

(1) Brief summary report.—Not later than 15 days after granting Milestone B approval for a major defense acquisition program, the milestone decision authority for the program shall provide to the congressional defense committees and, in the case of intelligence or intelligence-related activities, the congressional intelligence committees a brief summary report that contains the following elements:

(A) The program cost and fielding targets established under section 4271(a) of this title.

(B) The estimated cost and schedule for the program established by the military department concerned, including—

(i) the dollar values estimated for the program acquisition unit cost, average procurement unit cost, and total life-cycle cost; and

(ii) the planned dates for each program milestone, initial operational test and evaluation, and initial operational capability.

(C) The independent estimated cost for the program established pursuant to section 3221(b)(6) of this title, and any independent estimated schedule for the program, including—

(i) the dollar values and ranges estimated for the program acquisition unit cost, average procurement unit cost, and total life-cycle cost; and

(ii) the planned dates for each program milestone, initial operational test and evaluation, and initial operational capability.

(D) A summary of the technical and manufacturing risks associated with the program, as determined by the military department concerned, including identification of any critical technologies or manufacturing processes that have not been successfully demonstrated in a relevant environment.

(F) A statement of whether a modular open system approach is being used for the program.

(G) An assessment of the sufficiency of developmental test and evaluation plans, including the use of automated data analytics or modeling and simulation tools and methodologies.

(H) A summary of the life cycle sustainment plan required under section 4324 of this title.

(I) Any other information the milestone decision authority considers relevant.

(2) Certifications and determinations.—(A) The certifications and determination under subsection (a) with respect to a major defense acquisition program shall be submitted to the congressional defense committees with the first Selected Acquisition Report submitted under section 4351 of this title after completion of the certification.

(B) The milestone decision authority shall retain records of the basis for the certifications and determination under paragraphs (1), (2), and (3) of subsection (a).

(3) Additional information.—(A) At the request of any of the congressional defense committees or, in the case of intelligence or intelligence-related activities, the congressional intelligence committees, the milestone decision authority shall submit to the committee an explanation of the basis for the certifications and determination under paragraphs (1), (2), and (3) of subsection (a) with respect to a major defense acquisition program or further information or underlying documentation for the information in a brief summary report submitted under paragraph (1), including the independent cost and schedule estimates and the independent technical risk assessments referred to in that paragraph.

(B) The explanation or information shall be submitted in unclassified form, but may include a classified annex.

(d) Waiver for National Security.—(1) The milestone decision authority may, at the time of Milestone B approval or at the time that such milestone decision authority withdraws a certification or rescinds Milestone B approval pursuant to subsection (b)(2), waive the applicability to a major defense acquisition program of one or more components (as specified in paragraph (1), (2), or (3) of subsection (a)) of the certification and determination requirements if the milestone decision authority determines that, but for such a waiver, the Department would be unable to meet critical national security objectives.

(2) Whenever the milestone decision authority makes such a determination and authorizes such a waiver—

(A) the waiver, the waiver determination, and the reasons for the waiver determination shall be submitted in writing to the congressional defense committees within 30 days after the waiver is authorized; and

(B) the milestone decision authority shall review the program not less often than annually to determine the extent to which such program currently satisfies the certification and determination components specified in paragraphs (1), (2), and (3) of subsection (a) until such time as the milestone decision authority determines that the program satisfies all such certification and determination components.

(3) The requirement in paragraph (2)(B) shall not apply to a program for which a certification was required pursuant to section 4377 of this title if the milestone decision authority—

(A) determines in writing that—

(i) the program has reached a stage in the acquisition process at which it would not be practicable to meet the certification component that was waived; and

(ii) the milestone decision authority has taken appropriate alternative actions to address the underlying purposes of such certification component; and

(B) submits the written determination, and an explanation of the basis for the determination, to the congressional defense committees.

(e) Designation of Certification Status in Budget Documentation.—Any budget request, budget justification material, budget display, reprogramming request, Selected Acquisition Report, or other budget documentation or performance report submitted by the Secretary of Defense to the President regarding a major defense acquisition program receiving a waiver pursuant to subsection (d) shall prominently and clearly indicate that such program has not fully satisfied the certification requirements of this section until such time as the milestone decision authority makes the determination that such program has satisfied all such certification requirements.

(f) Nondelegation.—The milestone decision authority may not delegate the certification requirement under subsection (a) or the authority to waive any component of such requirement under subsection (d).

(g) Definitions.—In this section:

(1) The term "milestone decision authority", with respect to a major defense acquisition program, means the official within the Department of Defense designated with the overall responsibility and authority for acquisition decisions for the program, including authority to approve entry of the program into the next phase of the acquisition process.

(2) The term "Milestone B approval" has the meaning provided that term in section 4172(e)(7) of this title.

(3) The term "core logistics capabilities" means the core logistics capabilities identified under section 2464(a) of this title.

(4) The term "fielding target" has the meaning given that term in section 4271(a) of this title.

(5) The term "major system component" has the meaning given that term in section 4401(b)(3) of this title.

(6) The term "congressional intelligence committees" has the meaning given that term in section 437(c) of this title.

Editorial Notes

Amendments

2021—Pub. L. 116–283, §1847(d)(2)(A), renumbered section 2366b of this title as this section.

Subsec. (a)(2). Pub. L. 116–283, §1847(d)(2)(B)(i), substituted "section 4272" for "section 2448b".

Subsec. (a)(3)(D). Pub. L. 116–283, §1847(d)(2)(B)(ii)(I), substituted "section 4214 of this title" for "section 2435" and "section 4271(a)" for "section 2448a(a)".

Subsec. (a)(3)(N). Pub. L. 116–283, §1847(d)(2)(B)(ii)(II), substituted "section 4402(e)" for "section 2446b(e)".

Pub. L. 116–283, §802(b)(1)(A), struck out "and" after "met;".

Subsec. (a)(3)(O). Pub. L. 116–283, §802(b)(1)(B), which directed amendment of subpar. (O) by substituting "; and" for period at the end, was executed by making the substitution for semicolon at end to reflect the probable intent of Congress.

Subsec. (a)(3)(P). Pub. L. 116–283, §1883(b)(2), substituted "section 4324(b)" for "section 2337(b)".

Pub. L. 116–283, §802(b)(1)(C), added subpar. (P).

Subsec. (c)(1)(A). Pub. L. 116–283, §1847(d)(2)(C)(i)(I), substituted "section 4271(a)" for "section 2448a(a)".

Subsec. (c)(1)(C). Pub. L. 116–283, §1847(d)(2)(C)(i)(II), substituted "section 3221(b)(6)" for "section 2334(a)(6)" in introductory provisions.

Subsec. (c)(1)(E). Pub. L. 116–283, §1847(d)(2)(C)(i)(III), substituted "section 4272" for "section 2448b".

Subsec. (c)(1)(H). Pub. L. 116–283, §1883(b)(2), substituted "section 4324" for "section 2337".

Pub. L. 116–283, §802(b)(2)(B), added subpar. (H). Former subpar. (H) redesignated (I).

Subsec. (c)(1)(I). Pub. L. 116–283, §802(b)(2)(A), redesignated subpar. (H) as (I).

Subsec. (c)(2)(A). Pub. L. 116–283, §1847(d)(2)(C)(ii), as amended by Pub. L. 117–81, §1701(o)(6)(C)(iii), substituted "section 4351" for "section 2432".

Subsec. (d)(3). Pub. L. 116–283, §1847(d)(2)(D), substituted "section 4377" for "section 2433a(c)" in introductory provisions.

Subsec. (g)(1). Pub. L. 116–283, §1847(d)(2)(E)(i), redesignated par. (3) as (1) and struck out former par. (1) which defined "major defense acquisition program".

Subsec. (g)(2). Pub. L. 116–283, §1847(d)(2)(E)(i), (ii), redesignated par. (4) as (2), substituted "section 4172(e)(7)" for "section 2366(e)(7)", and struck out former par. (2) which defined "designated major subprogram".

Subsec. (g)(3). Pub. L. 116–283, §1847(d)(2)(E)(i), redesignated par. (5) as (3). Former par. (3) redesignated (1).

Subsec. (g)(4). Pub. L. 116–283, §1847(d)(2)(E)(i), (iii), redesignated par. (6) as (4) and substituted "section 4271(a)" for "section 2448a(a)". Former par. (4) redesignated (2).

Subsec. (g)(5). Pub. L. 116–283, §1847(d)(2)(E)(i), (iv), redesignated par. (7) as (5) and substituted "section 4401(b)(3)" for "section 2446a(b)(3)". Former par. (5) redesignated (3).

Subsec. (g)(6) to (8). Pub. L. 116–283, §1847(d)(2)(E)(i), redesignated pars. (6) to (8) as (4) to (6), respectively.

2019—Subsec. (a)(5). Pub. L. 116–92 added par. (5).

2018—Subsec. (a)(3)(D). Pub. L. 115–232, §831(b)(3)(A), struck out "Secretary of Defense after a request for such increase or delay by the" before "milestone decision authority".

Subsec. (c)(1)(A). Pub. L. 115–232, §831(b)(3)(B), struck out "by the Secretary of Defense" after "established".

2017—Subsec. (a)(3)(O). Pub. L. 115–91, §835(b)(1), added subpar. (O).

Subsec. (c)(1)(G), (H). Pub. L. 115–91, §838(a)(1), added subpar. (G) and redesignated former subpar. (G) as (H).

2016—Subsec. (a)(2). Pub. L. 114–328, §807(e)(1), substituted "technical risk assessment conducted under section 2448b of this title" for "assessment by the Assistant Secretary of Defense for Research and Engineering, in consultation with the Deputy Assistant Secretary of Defense for Developmental Test and Evaluation".

Subsec. (a)(3)(B). Pub. L. 114–328, §843(1), substituted "life-cycle cost;" for "acquisition cost in the context of the total resources available during the period covered by the future-years defense program submitted during the fiscal year in which the certification is made;".

Subsec. (a)(3)(C). Pub. L. 114–328, §807(e)(2)(A), struck out "and" at end.

Subsec. (a)(3)(D). Pub. L. 114–328, §807(e)(2)(C), added subpar. (D). Former subpar. (D) redesignated (E).

Subsec. (a)(3)(E). Pub. L. 114–328, §843(2), which directed amendment of subpar. (D) by substituting "funding is expected to be available to execute the product development and production plan for the program," for "funding is" and all that followed through "made,", was executed by making the substitution for "funding is available to execute the product development and production plan under the program, through the period covered by the future-years defense program submitted during the fiscal year in which the certification is made," in subpar. (E), to reflect the probable intent of Congress and the amendment by Pub. L. 114–328, §807(e)(2)(B). See below.

Pub. L. 114–328, §807(e)(2)(B), redesignated subpar. (D) as (E). Former subpar. (E) redesignated (F).

Subsec. (a)(3)(F) to (L). Pub. L. 114–328, §807(e)(2)(B), redesignated subpars. (E) to (K) as (F) to (L), respectively. Former subpar. (L) redesignated (M).

Subsec. (a)(3)(M). Pub. L. 114–328, §807(e)(2)(B), redesignated subpar. (L) as (M). Former subpar. (M) redesignated (N).

Pub. L. 114–328, §805(a)(3), added subpar. (M).

Subsec. (a)(3)(N). Pub. L. 114–328, §807(e)(2)(B), redesignated subpar. (M) as (N).

Subsec. (c). Pub. L. 114–328, §808(b)(1), amended subsec. (c) generally. Prior to amendment, text read as follows:

"(1) The certifications and determination under subsection (a) with respect to a major defense acquisition program shall be submitted to the congressional defense committees with the first Selected Acquisition Report submitted under section 2432 of this title after completion of the certification.

"(2) The milestone decision authority shall retain records of the basis for the certifications and determination under paragraphs (1), (2), and (3) of subsection (a).

"(3) At the request of any of the congressional defense committees, the Secretary of Defense shall submit to the committee an explanation of the basis for the certifications and determination under paragraphs (1), (2), and (3) of subsection (a) with respect to a major defense acquisition program. The explanation shall be submitted in unclassified form, but may include a classified annex."

Subsec. (g)(6) to (8). Pub. L. 114–328, §808(b)(2), added pars. (6) to (8).

2015—Pub. L. 114–92 amended section generally. Prior to amendment, section related to certification required before Milestone B approval of major defense acquisition programs.

2013—Subsec. (a)(3)(D). Pub. L. 112–239, §904(e)(2), substituted "the Assistant Secretary of Defense for Research and Engineering, in consultation with the Deputy Assistant Secretary of Defense for Developmental Test and Evaluation" for "the Assistant Secretary of Defense for Research and Engineering".

Subsec. (a)(3)(F). Pub. L. 112–239, §322(e)(2), as amended by Pub. L. 113–66, §1091(b)(1), substituted "core logistics capabilities" for "core depot-level maintenance and repair capabilities, as well as the associated logistics capabilities".

Subsec. (a)(3)(G), (H). Pub. L. 113–66, §821(a), added subpar. (G) and redesignated former subpar. (G) as (H).

Subsec. (a)(4). Pub. L. 113–66, §822(a), added par. (4).

2011—Pub. L. 112–81, §801(e)(2)(A), struck out "or Key Decision Point B" after "Milestone B" in section catchline.

Subsec. (a). Pub. L. 112–81, §801(e)(2)(B), struck out ", or Key Decision Point B approval in the case of a space program," after "Milestone B approval" in introductory provisions.

Subsec. (a)(3)(D). Pub. L. 111–383, §901(j)(4), substituted "Assistant Secretary of Defense for Research and Engineering" for "Director of Defense Research and Engineering".

Subsec. (a)(3)(E) to (G). Pub. L. 112–81, §801(b)(1), added subpars. (E) and (F) and redesignated former subpar. (E) as (G).

Subsec. (b)(1). Pub. L. 111–383, §814(c)(1)(A), substituted "any changes to the program or a designated major subprogram of such program" for "any changes to the program" in introductory provisions.

Subsec. (b)(1)(B). Pub. L. 111–383, §814(c)(1)(B), substituted "otherwise cause the program or subprogram" for "otherwise cause the program".

Subsec. (b)(2). Pub. L. 112–81, §801(e)(2)(C), struck out "(or Key Decision Point B approval in the case of a space program)" after "Milestone B approval".

Subsec. (d)(1). Pub. L. 112–81, §801(e)(2)(C), struck out "(or Key Decision Point B approval in the case of a space program)" after "Milestone B approval" in two places.

Pub. L. 111–383, §813(d)(1)(A), substituted "(as specified in paragraph (1), (2), or (3) of subsection (a))" for "(as specified in paragraph (1) or (2) of subsection (a))".

Subsec. (d)(2)(B). Pub. L. 111–383, §1075(k)(1), which directed amendment of directory language of Pub. L. 111–23, §205(a)(1)(B), resulting in substitution of "paragraphs (1), (2), and (3)" for "paragraphs (1) and (2)" in text, was not executed because of the prior identical amendment by Pub. L. 111–383, §813(d)(1)(B). See below.

Pub. L. 111–383, §813(d)(1)(B), substituted "specified in paragraphs (1), (2), and (3) of subsection (a)" for "specified in paragraphs (1) and (2) of subsection (a)".

Subsec. (d)(3). Pub. L. 112–81, §819(b), added par. (3).

Subsec. (g)(2) to (4). Pub. L. 111–383, §814(c)(2), added par. (2) and redesignated former pars. (2) and (3) as (3) and (4), respectively. Former par. (4) redesignated (5).

Subsec. (g)(5). Pub. L. 112–81, §801(b)(2), added par. (5) and struck out former par. (5) which read as follows: "The term 'Key Decision Point B' means the official program initiation of a National Security Space program of the Department of Defense, which triggers a formal review to determine maturity of technology and the program's readiness to begin the preliminary system design."

Pub. L. 111–383, §814(c)(2)(A), redesignated par. (4) as (5).

2009—Subsec. (a)(1)(B). Pub. L. 111–23, §201(f), inserted "appropriate trade-offs among cost, schedule, and performance objectives have been made to ensure that" before "the program is affordable".

Subsec. (a)(1)(C). Pub. L. 111–23, §101(d)(4), inserted ", with the concurrence of the Director of Cost Assessment and Program Evaluation," before "the product".

Subsec. (a)(1)(D). Pub. L. 111–23, §205(a)(3)(A), struck out "and" at end.

Subsec. (a)(2), (3). Pub. L. 111–23, §205(a)(3)(B), (C), added par. (2) and redesignated former par. (2) as (3).

Subsec. (a)(3)(D). Pub. L. 111–23, §205(a)(3)(D)(i), substituted ", as determined by the Milestone Decision Authority on the basis of an independent review and assessment by the Director of Defense Research and Engineering; and" for semicolon.

Subsec. (a)(3)(E), (F). Pub. L. 111–23, §205(a)(3)(D)(ii), (iii), redesignated subpar. (F) as (E) and struck out former subpar. (E) which read as follows: "the program demonstrates a high likelihood of accomplishing its intended mission; and".

Subsec. (d). Pub. L. 111–23, §205(a)(1), designated existing provisions as par. (1) and substituted par. (2) for "Whenever the milestone decision authority makes such a determination and authorizes such a waiver, the waiver, the determination, and the reasons for the determination shall be submitted in writing to the congressional defense committees within 30 days after the waiver is authorized."

Subsecs. (e) to (g). Pub. L. 111–23, §205(a)(2), added subsec. (e) and redesignated former subsecs. (e) and (f) as (f) and (g), respectively.

2008—Pub. L. 110–417, §813(a), (b), renumbered section 2366a of this title as this section.

Subsec. (a). Pub. L. 110–181, §812(1), amended subsec. (a) generally. Prior to amendment, subsec. (a) consisted of pars. (1) to (10) relating to required certifications by milestone decision authority for major defense acquisition program to receive Milestone B approval, or Key Decision Point B approval in the case of a space program.

Subsec. (b). Pub. L. 110–181, §812(3), added subsec. (b). Former subsec. (b) redesignated (c).

Subsec. (c). Pub. L. 110–181, §812(4), designated existing provisions as par. (1) and added par. (2).

Pub. L. 110–181, §812(2), redesignated subsec. (b) as (c). Former subsec. (c) redesignated (d).

Subsec. (d). Pub. L. 110–181, §812(5), substituted "authority may, at the time of Milestone B approval (or Key Decision Point B approval in the case of a space program) or at the time that such milestone decision authority withdraws a certification or rescinds Milestone B approval (or Key Decision Point B approval in the case of a space program) pursuant to subsection (b)(2), waive" for "authority may waive" and "paragraph (1) or (2)" for "paragraph (1), (2), (3), (4), (5), (6), (7), (8), or (9)".

Pub. L. 110–181, §812(2), redesignated subsec. (c) as (d). Former subsec. (d) redesignated (e).

Subsec. (e). Pub. L. 110–181, §812(6), substituted "subsection (d)" for "subsection (c)".

Pub. L. 110–181, §812(2), redesignated subsec. (d) as (e). Former subsec. (e) redesignated (f).

Subsec. (f). Pub. L. 110–181, §812(2), redesignated subsec. (e) as (f).

2006—Subsec. (a)(1) to (7). Pub. L. 109–364, §805(a)(1)–(3), added par. (1) and redesignated former pars. (1) to (6) as (2) to (7), respectively. Former par. (7) redesignated (10).

Subsec. (a)(8), (9). Pub. L. 109–364, §805(a)(4), (5), added pars. (8) and (9).

Subsec. (a)(10). Pub. L. 109–364, §805(a)(1), redesignated par. (7) as (10).

Subsec. (c). Pub. L. 109–364, §805(b), substituted "(5), (6), (7), (8), or (9)" for "(5), or (6)".

Statutory Notes and Related Subsidiaries

Effective Date of 2021 Amendment

Amendment by sections 1847(d)(2) and 1883(b)(2) of Pub. L. 116–283 effective Jan. 1, 2022, with additional provisions for delayed implementation and applicability of existing law, see section 1801(d) of Pub. L. 116–283, set out as a note preceding section 3001 of this title.

Effective Date of 2017 Amendment

Pub. L. 115–91, div. A, title VIII, §835(b)(2), Dec. 12, 2017, 131 Stat. 1471, provided that: "Section 2366b(a)(3)(O) of title 10, United States Code [now 10 U.S.C. 4252(a)(3)(O)], as added by paragraph (1), shall apply with respect to any major defense acquisition program receiving Milestone B approval on or after the date occurring one year after the date of the enactment of this Act [Dec. 12, 2017]."

Effective Date of 2013 Amendment

Pub. L. 113–66, div. A, title VIII, §821(b), Dec. 26, 2013, 127 Stat. 809, provided that: "The amendments made by subsection (a) [amending this section] shall take effect on the date of the enactment of this Act [Dec. 26, 2013], and shall apply with respect to major defense acquisition programs which are subject to Milestone B approval on or after the date occurring six months after the date of the enactment of this Act."

Pub. L. 113–66, div. A, title X, §1091(b), Dec. 26, 2013, 127 Stat. 876, provided in part that the amendment made by section 1091(b)(1) is effective as of Jan. 2, 2013, and as if included in Pub. L. 112–239 as enacted.

Amendment by section 322(e)(2) of Pub. L. 112–239 effective Dec. 31, 2011, immediately after enactment of Pub. L. 112–81, see section 322(f) of Pub. L. 112–239, set out as an note under section 4251 of this title.

Effective Date of 2011 Amendment

Pub. L. 111–383, div. A, title VIII, §813(d)(1), Jan. 7, 2011, 124 Stat. 4265, provided that the amendment made by section 813(d)(1) is effective as of May 22, 2009.

Amendment by section 901(j)(4) of Pub. L. 111–383 effective Jan. 1, 2011, see section 901(p) of Pub. L. 111–383, set out as a note under section 131 of this title.

Pub. L. 111–383, div. A, title X, §1075(k), Jan. 7, 2011, 124 Stat. 4378, provided that the amendment made by section 1075(k)(1) is effective as of May 22, 2009, and as if included in Pub. L. 111–23 as enacted.

Responsibility for Conducting Assessments

Pub. L. 115–91, div. A, title VIII, §838(a)(3), Dec. 12, 2017, 131 Stat. 1474, provided that: "For purposes of the sufficiency assessments required by section 2366b(c)(1) [now 10 U.S.C. 4252(c)(1)] and section 2366c(a)(4) [now 10 U.S.C. 4253(a)(4)] of such title [meaning title 10, United States Code], as added by paragraphs (1) and (2), with respect to a major defense acquisition program—

"(A) if the milestone decision authority for the program is the service acquisition executive of the military department that is managing the program, the sufficiency assessment shall be conducted by the senior official within the military department with responsibility for developmental testing; and

"(B) if the milestone decision authority for the program is the Under Secretary of Defense for Acquisition and Sustainment, the sufficiency assessment shall be conducted by the senior Department of Defense official with responsibility for developmental testing."

Guidance

Pub. L. 115–91, div. A, title VIII, §838(a)(4), Dec. 12, 2017, 131 Stat. 1475, provided that: "Within one year after the date of the enactment of this Act [Dec. 12, 2017], the senior Department of Defense official with responsibility for developmental testing shall develop guidance for the sufficiency assessments required by section 2366b(c)(1) and section 2366c(a)(4) of title 10, United States Code [now 10 U.S.C. 4252(c)(1) and 4253(a)(4)], as added by paragraphs (1) and (2). At a minimum, the guidance shall require—

"(A) for the sufficiency assessment required by section 2366b(c)(1) of such title [now 10 U.S.C. 4252(c)(1)], that the assessment address the sufficiency of—

"(i) the developmental test and evaluation plan;

"(ii) the developmental test and evaluation schedule, including a comparison to historic analogous systems;

"(iii) the developmental test and evaluation resources (facilities, personnel, test assets, data analytics tools, and modeling and simulation capabilities);

"(iv) the risks of developmental test and production concurrency; and

"(v) the developmental test criteria for entering the production phase; and

"(B) for the sufficiency assessment required by section 2366c(a)(4) of such title [now 10 U.S.C. 4253(a)(4)], that the assessment address—

"(i) the sufficiency of the developmental test and evaluation completed;

"(ii) the sufficiency of the plans and resources available for remaining developmental test and evaluation;

"(iii) the risks identified during developmental testing to the production and deployment phase;

"(iv) the sufficiency of the plans and resources for remaining developmental test and evaluation; and

"(v) the readiness of the system to perform scheduled initial operational test and evaluation."

Milestone B Decisions

Pub. L. 114–92, div. A, title VIII, §802(d)(3), Nov. 25, 2015, 129 Stat. 880, provided that: "The Chief of the Armed Force concerned shall advise the milestone decision authority for a major defense acquisition program of the Chief's views on cost, schedule, technical feasibility, and performance trade-offs that have been made with regard to the program, as provided in section 2366b(b)(3) of title 10, United States Code [now 10 U.S.C. 4252(b)(3)], as amended by section 824 of this Act, prior to a Milestone B decision on the program."

Formal Review Process for Bandwidth Requirements

Pub. L. 110–417, [div. A], title X, §1047(d), Oct. 14, 2008, 122 Stat. 4603, as amended by Pub. L. 111–84, div. A, title X, §1033, Oct. 28, 2009, 123 Stat. 2449; Pub. L. 115–232, div. A, title VIII, §813(c), Aug. 13, 2018, 132 Stat. 1851, provided that: "The Secretary of Defense and the Director of National Intelligence shall, as part of the Milestone B or Key Decision Point B approval process for any major defense acquisition program or major system acquisition program, establish a formal review process to ensure that—

"(A) the bandwidth requirements needed to support such program are or will be met; and

"(B) a determination will be made with respect to how to meet the bandwidth requirements for such program."

¹ So in original. Does not fit with par. (3) introductory provisions and period at end probably should be a semicolon.

§4253. Major defense acquisition programs: submissions to Congress on Milestone C

(a) Brief Summary Report.—Not later than 15 days after granting Milestone C approval for a major defense acquisition program, the milestone decision authority for the program shall provide to the congressional defense committees and, in the case of intelligence or intelligence-related activities, the congressional intelligence committees a brief summary report that contains the following:

(1) The estimated cost and schedule for the program established by the military department concerned, including—

(A) the dollar values estimated for the program acquisition unit cost, average procurement unit cost, and total life-cycle cost; and

(B) the planned dates for initial operational test and evaluation and initial operational capability.

(2) The independent estimated cost for the program established pursuant to section 3221(b)(6) of this title, and any independent estimated schedule for the program, including—

(A) the dollar values estimated for the program acquisition unit cost, average procurement unit cost, and total life-cycle cost; and

(B) the planned dates for initial operational test and evaluation and initial operational capability.

(3) A summary of any production, manufacturing, and fielding risks associated with the program.

(4) An assessment of the sufficiency of the developmental test and evaluation completed, including the use of automated data analytics or modeling and simulation tools and methodologies.

(b) Additional Information.—At the request of any of the congressional defense committees or, in the case of intelligence or intelligence-related activities, the congressional intelligence committees, the milestone decision authority shall submit to the committee further information or underlying documentation for the information in a brief summary report submitted under subsection (a), including the independent cost and schedule estimates and the independent technical risk assessments referred to in that subsection.

(c) Congressional Intelligence Committees Defined.—In this section, the term "congressional intelligence committees" has the meaning given that term in section 437(c) of this title.

(Added Pub. L. 114–328, div. A, title VIII, §808(c)(1), Dec. 23, 2016, 130 Stat. 2265, §2366c; amended Pub. L. 115–91, div. A, title VIII, §838(a)(2), Dec. 12, 2017, 131 Stat. 1474; renumbered §4253 and amended Pub. L. 116–283, div. A, title XVIII, §1847(d)(3), Jan. 1, 2021, 134 Stat. 4256.)

Editorial Notes

Amendments

2021—Pub. L. 116–283 renumbered section 2366c of this title as this section and, in subsec. (a)(2), substituted "section 3221(b)(6)" for "section 2334(a)(6)" in introductory provisions. Section was inserted after section 4252 of this title, as renumbered by par. (2) of section 1847(d) of Pub. L. 116–283, to reflect the probable intent of Congress, notwithstanding language directing this section be inserted after section 4252 of this title "as transferred and redesignated by paragraph (3)" of section 1847(d).

2017—Subsec. (a)(4). Pub. L. 115–91 added par. (4).

Statutory Notes and Related Subsidiaries

Effective Date of 2021 Amendment

Responsibility for Conducting Assessments; Guidance

For provisions designating officials responsible for conducting assessments and provisions requiring guidance for assessments under subsec. (a)(4) of this section, see section 838(a)(3), (4) of Pub. L. 115–91, set out as notes under section 4252 of this title.

SUBCHAPTER IV—ADDITIONAL PROVISIONS APPLICABLE SPECIFICALLY TO MAJOR DEFENSE ACQUISITION PROGRAMS

Sec.

4271.

Program cost, fielding, and performance goals in planning major defense acquisition programs.

4272.

Independent technical risk assessments.

4273.

Performance assessments and root cause analyses.

4274.

[Reserved].

4275.

[Reserved].

4276.

[Reserved].

Editorial Notes

Amendments

2021—Pub. L. 117–81, div. A, title XVII, §1701(r)(1)(A), Dec. 27, 2021, 135 Stat. 2149, amended Pub. L. 116–283, div. A, title XVIII. §1847(a), Jan. 1, 2021, 134 Stat. 4253, which added this analysis, by substituting "[Reserved]" for "Acquisition-related functions of chiefs: adherence to requirements in major defense acquisition programs" in item 4274.

§4271. Program cost, fielding, and performance goals in planning major defense acquisition programs

(a) Program Cost and Fielding Targets.—(1) Before funds are obligated for technology development, systems development, or production of a major defense acquisition program, the designated milestone decision authority for the program shall ensure, by establishing the goals described in paragraph (2), that the program will—

(A) be affordable;

(B) incorporate program planning that anticipates the evolution of capabilities to meet changing threats, technology insertion, and interoperability; and

(2) The goals described in this paragraph are goals for—

(A) the procurement unit cost and sustainment cost (referred to in this section as the "program cost targets");

(B) the date for initial operational capability (referred to in this section as the "fielding target"); and

(C) technology maturation, prototyping, and a modular open system approach to evolve system capabilities and improve interoperability.

(b) Definitions.—In this section:

(1) The term "procurement unit cost" has the meaning provided in section 4351(a)(2) of this title.

(2) The term "initial capabilities document" has the meaning provided in section 4251(d)(1) of this title.

(Added Pub. L. 114–328, div. A, title VIII, §807(a)(1), Dec. 23, 2016, 130 Stat. 2260, §2448a; amended Pub. L. 115–232, div. A, title VIII, §831(a), Aug. 13, 2018, 132 Stat. 1857; renumbered §4271 and amended Pub. L. 116–283, div. A, title XVIII, §1847(e)(1), Jan. 1, 2021, 134 Stat. 4256; Pub. L. 117–81, div. A, title XVII, §1701(o)(6)(C)(iv), Dec. 27, 2021, 135 Stat. 2147.)

Editorial Notes

Amendments

2021—Pub. L. 116–283, §1847(e)(1), renumbered section 2448a of this title as the section.

Subsec. (b)(1). Pub. L. 116–283, §1847(e)(1)(A), as amended by Pub. L. 117–81, §1701(o)(6)(C)(iv), substituted "section 4351(a)(2)" for "section 2432(a)(2)".

Subsec. (b)(2). Pub. L. 116–283, §1847(e)(1)(B), substituted "section 4251(d)(1)" for "section 2366a(d)(2)".

2018—Subsec. (a)(1). Pub. L. 115–232, §831(a)(1), (2), in introductory provisions, substituted "designated milestone decision authority for the program shall ensure, by establishing the goals described in paragraph (2), that the program" for "Secretary of Defense shall ensure, by establishing the goals described in paragraph (2), that the milestone decision authority for the major defense acquisition program approves a program that".

Subsecs. (b), (c). Pub. L. 115–232, §831(a)(3), (4), redesignated subsec. (c) as (b) and struck out former subsec. (b). Prior to amendment, text of subsec. (b) read as follows: "The responsibilities of the Secretary of Defense in subsection (a) may be delegated only to the Deputy Secretary of Defense."

Statutory Notes and Related Subsidiaries

Effective Date of 2021 Amendment

Effective Date

Pub. L. 114–328, div. A, title VIII, §807(a)(2), Dec. 23, 2016, 130 Stat. 2261, provided that: "[Former] Subchapter III of chapter 144B of title 10, United States Code [see 10 U.S.C. 4271, 4272], as added by paragraph (1), shall apply with respect to major defense acquisition programs that reach Milestone A after October 1, 2017."

Program Cost and Field Targets

Pub. L. 114–328, div. A, title IX, §925(b), Dec. 23, 2016, 130 Stat. 2361, as amended by Pub. L. 115–232, div. A, title VIII, §831(b)(4), Aug. 13, 2018, 132 Stat. 1857, provided that: "The Secretary of Defense shall establish a process to develop program cost and fielding targets pursuant to section 2448a of title 10, United States Code [now 10 U.S.C. 4271], that—

"(1) is co-chaired by the designated milestone decision authority for the major defense acquisition program and the Vice Chief of Staff of the armed force concerned or, in the case of a program for which an alternate milestone decision authority is designated under section 2430(d)(2) of such title [now 10 U.S.C. 4204(b)], the Vice Chairman of the Joint Chiefs of Staff;

"(2) is supported by—

"(A) the Joint Staff, to provide expertise on joint military capabilities, capability gaps, and performance requirements;

"(B) the Office of Cost Assessment and Program Evaluation, to provide expertise in resource allocation, operations research, systems analysis, and cost estimation; and

"(C) other Department of Defense organizations determined appropriate by the Secretary; and

"(3) ensures that appropriate trade-offs are made among life-cycle cost, schedule, and performance objectives and procurement quantity objectives."

Configuration Steering Boards for Cost Control Under Major Defense Acquisition Programs

Pub. L. 110–417, [div. A], title VIII, §814, Oct. 14, 2008, 122 Stat. 4528, as amended by Pub. L. 114–92, div. A, title VIII, §830, Nov. 25, 2015, 129 Stat. 912; Pub. L. 115–91, div. A, title VIII, §826, Dec. 12, 2017, 131 Stat. 1467; Pub. L. 116–92, div. A, title IX, §902(67), Dec. 20, 2019, 133 Stat. 1550, provided that:

"(a) Configuration Steering Boards.—Each Secretary of a military department shall establish one or more boards (to be known as a 'Configuration Steering Board') for the major defense acquisition programs of such department.

"(b) Composition.—

"(1) Chair.—Each Configuration Steering Board under this section shall be chaired by the service acquisition executive of the military department concerned.

"(2) Particular members.—Each Configuration Steering Board under this section shall include a representative of the following:

"(A) The Office of the Under Secretary of Defense for Research and Engineering.

"(B) The Office of the Under Secretary of Defense for Acquisition and Sustainment.

"(C) The Chief of Staff of the Armed Force concerned.

"(D) Other Armed Forces, as appropriate.

"(E) The Joint Staff.

"(F) The Comptroller of the military department concerned.

"(G) The military deputy to the service acquisition executive concerned.

"(H) The program executive officer for the major defense acquisition program concerned.

"(I) Other senior representatives of the Office of the Secretary of Defense and the military department concerned, as appropriate.

"(c) Responsibilities.—

"(1) In general.—The Configuration Steering Board for a major defense acquisition program under this section shall be responsible for the following:

"(A) Monitoring changes in program requirements and ensuring the Chief of Staff of the Armed Force concerned, in consultation with the Secretary of the military department concerned, approves of any proposed changes that could have an adverse effect on program cost or schedule.

"(B) Preventing unnecessary changes to program requirements and system configuration that could have an adverse impact on program cost or schedule.

"(C) Mitigating the adverse cost and schedule impact of any changes to program requirements or system configuration that may be required.

"(D) Ensuring that the program delivers as much planned capability as possible, at or below the relevant program baseline.

"(2) Discharge of responsibilities.—In discharging its responsibilities under this section with respect to a major defense acquisition program, a Configuration Steering Board shall—

"(A) review and approve or disapprove any proposed changes to program requirements or system configuration that have the potential to adversely impact program cost or schedule; and

"(B) review and recommend proposals to reduce program requirements that have the potential to improve program cost or schedule in a manner consistent with program objectives.

"(3) Presentation of recommendations on reduction in requirements.—Any recommendation for a proposed reduction in requirements that is made by a Configuration Steering Board under paragraph (2)(B) shall be presented to appropriate organizations of the Joint Staff and the military departments responsible for such requirements for review and approval in accordance with applicable procedures.

"(4) Annual consideration of each major defense acquisition program.—

"(A) Annual meeting.—Except as provided in subparagraph (B), the Secretary of the military department concerned shall ensure that a Configuration Steering Board under this section meets to consider each major defense acquisition program of such military department at least once each year.

"(B) Exception.—If the service acquisition executive of the military department concerned determines, in writing, that there have been no changes to the program requirements of a major defense acquisition program during the preceding year, the Configuration Steering Board for such major defense acquisition program is not required to meet as described in subparagraph (A).

"(5) Certification of cost and schedule deviations during system design and development.—For a major defense acquisition program that received an initial Milestone B approval during fiscal year 2008, a Configuration Steering Board may not approve any proposed alteration to program requirements or system configuration if such an alteration would—

"(A) increase the cost (including any increase for expected inflation or currency exchange rates) for system development and demonstration by more than 25 percent; or

"(B) extend the schedule for key events by more than 15 percent of the total number of months between the award of the system development and demonstration contract and the scheduled Milestone C approval date,

unless the Under Secretary of Defense for Research and Engineering and the Under Secretary of Defense for Acquisition and Sustainment jointly certify to the congressional defense committees [Committees on Armed Services and Appropriations of the Senate and the House of Representatives], and include in the certification supporting rationale, that approving such alteration to program requirements or system configuration is in the best interest of the Department of Defense despite the cost and schedule impacts to system development and demonstration of such program.

"(d) Applicability.—

"(1) In general.—The requirements of this section shall apply with respect to any major defense acquisition program that is commenced before, on, or after the date of the enactment of this Act [Oct. 14, 2008].

"(2) Current programs.—In the case of any major defense acquisition program that is ongoing as of the date of the enactment of this Act, a Configuration Steering Board under this section shall be established for such program not later than 60 days after the date of the enactment of this Act.

"(e) Guidance on Authorities of Program Managers After Milestone B.—

"(1) [Amended section 853(d)(2) of Pub. L. 109–364, formerly set out as a note under section 2430 of this title.]

"(2) Applicability.—The Secretary of Defense shall modify the guidance described in section 853(d) of the John Warner National Defense Authorization Act for Fiscal Year 2007 [Pub. L. 109–364, formerly set out as a note under section 2430 of this title] in order to take into account the amendment made by paragraph (1) not later than 60 days after the date of the enactment of this Act [Oct. 14, 2008].

"(f) Major Defense Acquisition Program Defined.—In this section, the term 'major defense acquisition program' has the meaning given that term in section 2430(a) of title 10, United States Code [now 10 U.S.C. 4201]."

§4272. Independent technical risk assessments

(a) In General.—With respect to a major defense acquisition program, the Secretary of Defense shall conduct or approve independent technical risk assessments—

(1) before any decision to grant Milestone A approval for the program pursuant to section 4251 of this title, that identifies critical technologies and manufacturing processes that need to be matured; and

(2) before any decision to grant Milestone B approval for the program pursuant to section 4252 of this title, any decision to enter into low-rate initial production or full-rate production, or at any other time considered appropriate by the Secretary, that includes the identification of any critical technologies or manufacturing processes that have not been successfully demonstrated in a relevant environment.

(b) Guidance.—The Secretary shall issue guidance and a framework for the conduct, execution, and approval of independent technical risk assessments.

(Added Pub. L. 114–328, div. A, title VIII, §807(a)(1), Dec. 23, 2016, 130 Stat. 2261, §2448b; amended Pub. L. 116–92, div. A, title IX, §902(73), Dec. 20, 2019, 133 Stat. 1552; renumbered §4272 and amended Pub. L. 116–283, div. A, title XVIII, §1847(e)(2), Jan. 1, 2021, 134 Stat. 4256.)

Editorial Notes

Amendments

2021—Pub. L. 116–283, §1847(e)(2), renumbered section 2448b of this title as this section.

Subsec. (a)(1). Pub. L. 116–283, §1847(e)(2)(A), substituted "section 4251" for "section 2366a".

Subsec. (a)(2). Pub. L. 116–283, §1847(e)(2)(B), substituted "section 4252" for "section 2366b".

2019—Pub. L. 116–92 added subsecs. (a) and (b) and struck out former subsecs. (a) and (b) which read as follows:

"(a) In General.—With respect to a major defense acquisition program, the Secretary of Defense shall ensure that an independent technical risk assessment is conducted—

"(1) before any decision to grant Milestone A approval for the program pursuant to section 2366a of this title, that identifies critical technologies and manufacturing processes that need to be matured; and

"(2) before any decision to grant Milestone B approval for the program pursuant to section 2366b of this title, any decision to enter into low-rate initial production or full-rate production, or at any other time considered appropriate by the Secretary, that includes the identification of any critical technologies or manufacturing processes that have not been successfully demonstrated in a relevant environment.

"(b) Categorization of Technical Risk Levels.—The Secretary shall issue guidance and a framework for categorizing the degree of technical and manufacturing risk in a major defense acquisition program."

Statutory Notes and Related Subsidiaries

Effective Date of 2021 Amendment

Effective Date

Section applicable with respect to major defense acquisition programs that reach Milestone A after Oct. 1, 2017, see section 807(a)(2) of Pub. L. 114–328, set out as a note under section 4271 of this title.

§4273. Performance assessments and root cause analyses

(a) Designation of Senior Official Responsibility for Performance Assessments and Root Cause Analyses.—

(1) In general.—The Secretary of Defense shall designate a senior official in the Office of the Secretary of Defense as the principal official of the Department of Defense responsible for conducting and overseeing performance assessments and root cause analyses for major defense acquisition programs.

(2) No program execution responsibility.—The Secretary shall ensure that the senior official designated under paragraph (1) is not responsible for program execution.

(3) Staff and resources.—The Secretary shall assign to the senior official designated under paragraph (1) appropriate staff and resources necessary to carry out the senior official's function under this section.

(b) Responsibilities.—The senior official designated under subsection (a) shall be responsible for the following:

(1) Carrying out performance assessments of major defense acquisition programs in accordance with the requirements of subsection (c) periodically or when requested by the Secretary of Defense, the Under Secretary of Defense for Acquisition and Sustainment, the Secretary of a military department, or the head of a Defense Agency.

(2) Conducting root cause analyses for major defense acquisition programs in accordance with the requirements of subsection (d) when required by section 4376(a)(1) of this title, or when requested by the Secretary of Defense, the Under Secretary of Defense for Acquisition and Sustainment, the Secretary of a military department, or the head of a Defense Agency.

(3) Issuing policies, procedures, and guidance governing the conduct of performance assessments and root cause analyses by the military departments and the Defense Agencies.

(4) Evaluating the utility of performance metrics used to measure the cost, schedule, and performance of major defense acquisition programs, and making such recommendations to the Secretary of Defense as the official considers appropriate to improve such metrics.

(5) Advising acquisition officials on performance issues regarding a major defense acquisition program that may arise—

(A) before certification under sections 4376 and 4377 of this title;

(B) before entry into full-rate production; or

(C) in the course of consideration of any decision to request authorization of a multiyear procurement contract for the program.

(c) Performance Assessments.—For purposes of this section, a performance assessment with respect to a major defense acquisition program is an evaluation of the following:

(1) The cost, schedule, and performance of the program, relative to current metrics, including performance requirements and baseline descriptions.

(2) The extent to which the level of program cost, schedule, and performance predicted relative to such metrics is likely to result in the timely delivery of a level of capability to the warfighter that is consistent with the level of resources to be expended and provides superior value to alternative approaches that may be available to meet the same military requirement.

(d) Root Cause Analyses.—For purposes of this section and sections 4736 ¹ and 4377 of this title, a root cause analysis with respect to a major defense acquisition program is an assessment of the underlying cause or causes of shortcomings in cost, schedule, or performance of the program, including the role, if any, of—

(1) unrealistic performance expectations;

(2) unrealistic baseline estimates for cost or schedule;

(3) immature technologies or excessive manufacturing or integration risk;

(4) unanticipated design, engineering, manufacturing, or technology integration issues arising during program performance;

(5) changes in procurement quantities;

(6) inadequate program funding or funding instability;

(7) poor performance by government or contractor personnel responsible for program management; or

(8) any other matters.

(e) Support of Applicable Capabilities and Expertise.—The Secretary of Defense shall ensure that the senior official designated under subsection (a) has the support of other Department of Defense officials with relevant capabilities and expertise needed to carry out the requirements of this section.

(Added and amended Pub. L. 111–383, div. A, title IX, §901(d), (k)(1)(F), Jan. 7, 2011, 124 Stat. 4321, 4325, §2438; Pub. L. 112–239, div. A, title X, §1076(f)(27), Jan. 2, 2013, 126 Stat. 1953; Pub. L. 114–92, div. A, title X, §1077(b), Nov. 25, 2015, 129 Stat. 998; Pub. L. 116–92, div. A, title IX, §902(72), Dec. 20, 2019, 133 Stat. 1551; renumbered §4273 and amended Pub. L. 116–283, div. A, title XVIII, §1847(e)(3), Jan. 1, 2021, 134 Stat. 4256; Pub. L. 117–81, div. A, title XVII, §1701(b)(16)(B), Dec. 27, 2021, 135 Stat. 2134; Pub. L. 118–31, div. A, title XVIII, §1801(a)(34), Dec. 22, 2023, 137 Stat. 685.)

Editorial Notes

Codification

Section 103 of Pub. L. 111–23, formerly set out as a note under section 2430 of this title, which was transferred to chapter 144 of this title, renumbered as section 2438, and amended by Pub. L. 111–383, §901(d), (k)(1)(F), and subsequently renumbered as this section and amended by Pub. L. 116–283, §1847(e)(3), was based on Pub. L. 111–23, title I, §103, May 22, 2009, 123 Stat. 1715.

Amendments

2023—Subsec. (b)(5)(A). Pub. L. 118–31 substituted "sections 4376" for "sections 4736".

2021—Pub. L. 116–283, §1847(e)(3), renumbered section 2438 of this title as this section.

Subsec. (b)(2). Pub. L. 116–283, §1847(e)(3)(A), as amended by Pub. L. 117–81, §1701(b)(16)(B), substituted "section 4376(a)(1)" for "section 2433a(a)(1)".

Subsec. (b)(5)(A). Pub. L. 116–283, §1847(e)(3)(B), substituted "sections 4736 and 4377" for "section 2433a".

Subsec. (d). Pub. L. 116–283, §1847(e)(3)(B), substituted "sections 4736 and 4377" for "section 2433a" in introductory provisions.

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

2015—Subsec. (f). Pub. L. 114–92 struck out subsec. (f) which related to annual report.

2013—Subsec. (a)(3). Pub. L. 112–239 inserted "the senior" before "official's".

2011—Pub. L. 111–383, §901(k)(1)(F), substituted "Performance assessments and root cause analyses" for "performance assessments and root cause analyses for major defense acquisition programs" in section catchline.

Pub. L. 111–383, §901(d), transferred section 103 of Pub. L. 111–23 to this chapter and renumbered it as this section. See Codification note above.

Subsec. (b)(2). Pub. L. 111–383, §901(d)(1), substituted "section 2433a(a)(1) of this title" for "section 2433a(a)(1) of title 10, United States Code (as added by section 206(a) of this Act)".

Subsec. (b)(5)(A). Pub. L. 111–383, §901(d)(2), substituted "before" for "prior to" and "section 2433a of this title" for "section 2433a of title 10, United States Code (as so added)".

Subsec. (b)(5)(B). Pub. L. 111–383, §901(d)(2)(B), substituted "before" for "prior to".

Subsec. (d). Pub. L. 111–383, §901(d)(3), substituted "section 2433a of this title" for "section 2433a of title 10, United States Code (as so added)" in introductory provisions.

Subsec. (f). Pub. L. 111–383, §901(d)(4), struck out "beginning in 2010," after "each year,".

Statutory Notes and Related Subsidiaries

Effective Date of 2021 Amendment

Effective Date

Amendment by Pub. L. 111–383 effective Jan. 1, 2011, see section 901(p) of Pub. L. 111–383, set out as an Effective Date of 2011 Amendment note under section 131 of this title.

¹ So in original. Probably should be "4376".

[§4274. Omitted]

Editorial Notes

Codification

Pub. L. 116–283, div. A, title XVIII, §1847(e)(4), (5), Jan. 1, 2021, 134 Stat. 4256, 4257, enacted this section, transferred subsec. (b) of section 2547 of this title to this section, and made additional amendments, which were all to become effective Jan. 1, 2022. Subsequently, Pub. L. 117–81, div. A, title XVII, §1701(r)(1)(B), Dec. 27, 2021, 135 Stat. 2149, repealed section 1847(e)(4), (5) of Pub. L. 116–283, effective as if included therein, thereby omitting this section and eliminating the amendments before they took effect.

SUBCHAPTER V—CONTRACTORS

Sec.

4291.

[Reserved].

4292.

Contracts: limitations on lead system integrators.

4293.

Major defense acquisition programs: incentive program for contractors to purchase capital assets manufactured in United States.

Statutory Notes and Related Subsidiaries

Pilot Program for Distribution Support and Services for Weapon Systems Contractors

Pub. L. 114–328, div. A, title VIII, §883, Dec. 23, 2016, 130 Stat. 2316, as amended by Pub. L. 117–263, div. A, title VIII, §819, Dec. 23, 2022, 136 Stat. 2709; Pub. L. 118–31, div. A, title VIII, §855, Dec. 22, 2023, 137 Stat. 345, provided that:

"(a) Authority.—The Secretary of Defense may carry out a [sic] eight-year pilot program under which the Secretary may make available storage and distribution services support to a contractor in support of the performance by the contractor of a contract for the production, modification, maintenance, or repair of a weapon system that is entered into by the Department of Defense.

"(b) Support Contracts.—

"(1) In general.—Any storage and distribution services to be provided under the pilot program under this section to a contractor in support of the performance of a contract described in subsection (a) shall be provided under a separate contract that is entered into by the Director of the Defense Logistics Agency with that contractor. The requirements of section 2208(h) of title 10, United States Code, and the regulations prescribed pursuant to such section shall apply to any such separate support contract between the Director of the Defense Logistics Agency and the contractor.

"(2) Limitation.—Not more than five support contracts between the Director and the contractor may be awarded under the pilot program.

"(c) Scope of Support and Services.—The storage and distribution support services that may be provided under this section in support of the performance of a contract described in subsection (a) are storage and distribution of materiel and repair parts necessary for the performance of that contract.

"(d) Regulations.—Before exercising the authority under the pilot program under this section, the Secretary of Defense shall prescribe in regulations such requirements, conditions, and restrictions as the Secretary determines appropriate to ensure that storage and distribution services are provided under the pilot program only when it is in the best interests of the United States to do so. The regulations shall include, at a minimum, the following:

"(1) A requirement for the solicitation of offers for a contract described in subsection (a), for which storage and distribution services are to be made available under the pilot program, including—

"(A) a statement that the storage and distribution services are to be made available under the authority of the pilot program under this section to any contractor awarded the contract, but only on a basis that does not require acceptance of the support and services; and

"(B) a description of the range of the storage and distribution services that are to be made available to the contractor.

"(2) A requirement for the rates charged a contractor for storage and distribution services provided to a contractor under the pilot program to reflect the full cost to the United States of the resources used in providing the support and services, including the costs of resources used, but not paid for, by the Department of Defense.

"(3) With respect to a contract described in subsection (a) that is being performed for a department or agency outside the Department of Defense, a prohibition, in accordance with applicable contracting procedures, on the imposition of any charge on that department or agency for any effort of Department of Defense personnel or the contractor to correct deficiencies in the performance of such contract.

"(4) A prohibition on the imposition of any charge on a contractor for any effort of the contractor to correct a deficiency in the performance of storage and distribution services provided to the contractor under this section.

"(5) A requirement that storage and distribution services provided under the pilot program may not interfere with the mission of the Defense Logistics Agency or of any military department involved with the pilot program.

"(6) A requirement that any support contract for storage and distribution services entered into under the pilot program shall include a clause to indemnify the Government against any failure by the contractor to perform the support contract, and to remain responsible for performance of the primary contract.

"(e) Relationship to Treaty Obligations.—The Secretary shall ensure that the exercise of authority under the pilot program under this section does not conflict with any obligation of the United States under any treaty or other international agreement.

"(f) Reports.—

"(1) Secretary of defense.—Not later than the end of the fourth year of operation of the pilot program, the Secretary of Defense shall submit to the Committees on Armed Services of the Senate and House of Representatives a report describing—

"(A) the cost effectiveness for both the Government and industry of the pilot program; and

"(B) how support contracts under the pilot program affected meeting the requirements of primary contracts.

"(2) Comptroller general.—Not later than the end of the fifth year of operation of the pilot program, the Comptroller General of the United States shall review the report of the Secretary under paragraph (1) for sufficiency and provide such recommendations in a report to the Committees on Armed Services of the Senate and House of Representatives as the Comptroller General considers appropriate.

"(g) Sunset.—The authority to enter into contracts under the pilot program shall expire eight years after the date of the enactment of this Act. Any contracts entered into before such date shall continue in effect according to their terms."

Nontraditional and Small Contractor Innovation Prototyping Program

Pub. L. 114–328, div. A, title VIII, §884, Dec. 23, 2016, 130 Stat. 2318, as amended by Pub. L. 115–91, div. A, title VIII, §865, Dec. 12, 2017, 131 Stat. 1495; Pub. L. 116–283, div. A, title XVIII, §1806(e)(3)(D), Jan. 1, 2021, 134 Stat. 4156, provided that:

"(a) In General.—The Secretary of Defense shall conduct a pilot program for nontraditional defense contractors and small business concerns to design, develop, and demonstrate innovative prototype military platforms of significant scope for the purpose of demonstrating new capabilities that could provide alternatives to existing acquisition programs and assets. The Secretary shall establish the pilot program within the Departments of the Army, Navy, and Air Force, the Missile Defense Agency, and the United States Special Operations Command.

"(b) Funding.—There is authorized to be made available $250,000,000 from the Rapid Prototyping Fund established under section 804(d) 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.]) to carry out the pilot program.

"(c) Plan.—

"(1) In general.—The Secretary of Defense shall submit to the congressional defense committees [Committees on Armed Services and Appropriations of the Senate and the House of Representatives], concurrent with the budget for the Department of Defense for fiscal year 2018, as submitted to Congress pursuant to section 1105 of title 31, United States Code, a plan to fund and carry out the pilot program in future years.

"(2) Elements.—The plan submitted under paragraph (1) shall consider maximizing use of—

"(A) broad agency announcements or other merit-based selection procedures;

"(B) the Department of Defense Acquisition Challenge Program authorized under section 2359b of title 10, United States Code [now 10 U.S.C. 4062];

"(C) the foreign comparative test program;

"(D) projects carried out under the Rapid Innovation Program of the Department of Defense or pursuant to a Phase III agreement (as defined in section 9(r)(2) of the Small Business Act (15 U.S.C. 638(r)(2))); and

"(E) streamlined procedures for acquisition provided under section 804 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.]) and procedures for alternative acquisition pathways established under section 805 of such Act (10 U.S.C. 2302 note [now 10 U.S.C. 3201 note prec.]).

"(d) Programs To Be Included.—As part of the pilot program, the Secretary of Defense shall allocate up to $50,000,000 on a fixed price contractual basis for fiscal year 2017 or pursuant to the plan submitted under subsection (c) for demonstrations of the following capabilities:

"(1) Swarming of multiple unmanned air vehicles.

"(2) Unmanned, modular fixed-wing aircraft that can be rapidly adapted to multiple missions and serve as a fifth generation weapons augmentation platform.

"(3) Vertical takeoff and landing tiltrotor aircraft.

"(4) Integration of a directed energy weapon on an air, sea, or ground platform.

"(5) Swarming of multiple unmanned underwater vehicles.

"(6) Commercial small synthetic aperture radar (SAR) satellites with on-board machine learning for automated, real-time feature extraction and predictive analytics.

"(7) Active protection system to defend against rocket-propelled grenades and anti-tank missiles.

"(8) Defense against hypersonic weapons, including sensors.

"(9) Unmanned ground logistics and unmanned air logistics capabilities enhancement.

"(10) Other systems as designated by the Secretary.

"(e) Definitions.—In this section:

"(1) Nontraditional defense contractor.—The term 'nontraditional defense contractor' has the meaning given the term in section 3014 of title 10, United States Code.

"(2) Small business concern.—The term 'small business concern' has the meaning given the term in section 3 of the Small Business Act (15 U.S.C. 632).

"(f) Sunset.—The authority under this section expires at the close of September 30, 2026."

Organizational Conflicts of Interest in Major Defense Acquisition Programs

Pub. L. 111–23, title II, §207(a)–(c), May 22, 2009, 123 Stat. 1728, 1729, directed the Secretary of Defense to revise, not later than 270 days after May 22, 2009, the Defense Supplement to the Federal Acquisition Regulation to provide uniform guidance and tighten existing requirements for organizational conflicts of interest by contractors in major defense acquisition programs and directed the Panel on Contracting Integrity established pursuant to former section 813 of Pub. L. 109–364 (former 10 U.S.C. 2304 note) to present recommendations on measures to eliminate or mitigate organizational conflicts of interest in major defense acquisition programs.

§4292. Contracts: limitations on lead system integrators

(a) In General.—Except as provided in subsection (b), no entity performing lead system integrator functions in the acquisition of a major system by the Department of Defense may have any direct financial interest in the development or construction of any individual system or element of any system of systems.

(b) Exception.—An entity described in subsection (a) may have a direct financial interest in the development or construction of an individual system or element of a system of systems if—

(1) the Secretary of Defense certifies to the Committees on Armed Services of the Senate and the House of Representatives that—

(A) the entity was selected by the Department of Defense as a contractor to develop or construct the system or element concerned through the use of competitive procedures; and

(B) the Department took appropriate steps to prevent any organizational conflict of interest in the selection process; or

(2) the entity was selected by a subcontractor to serve as a lower-tier subcontractor, through a process over which the entity exercised no control.

(c) Construction.—Nothing in this section shall be construed to preclude an entity described in subsection (a) from performing work necessary to integrate two or more individual systems or elements of a system of systems with each other.

(Added Pub. L. 109–364, div. A, title VIII, §807(a)(1), Oct. 17, 2006, 120 Stat. 2315, §2410p; renumbered §4292, Pub. L. 116–283, div. A, title XVIII, §1847(f)(1), Jan. 1, 2021, 134 Stat. 4258.)

Editorial Notes

Amendments

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

Statutory Notes and Related Subsidiaries

Effective Date of 2021 Amendment

Effective Date

Pub. L. 109–364, div. A, title VIII, §807(a)(3), Oct. 17, 2006, 120 Stat. 2316, provided that: "Section 2410p of title 10, United States Code [now 10 U.S.C. 4292], as added by paragraph (1), shall apply with respect to contracts entered into after December 31, 2006."

Prohibition on New Lead Systems Integrators

Pub. L. 110–181, div. A, title VIII, §802, Jan. 28, 2008, 122 Stat. 206, as amended by Pub. L. 110–417, [div. A], title I, §112, Oct. 14, 2008, 122 Stat. 4374; Pub. L. 116–92, div. A, title IX, §902(100), Dec. 20, 2019, 133 Stat. 1555, provided that:

"(a) Prohibitions on the Use of Lead Systems Integrators.—

"(1) Prohibition on new lead systems integrators.—Effective October 1, 2010, the Department of Defense may not award a new contract for lead systems integrator functions in the acquisition of a major system to any entity that was not performing lead systems integrator functions in the acquisition of the major system prior to the date of the enactment of this Act [Jan. 28, 2008].

"(2) Prohibition on lead systems integrators beyond low-rate initial production.—Effective on the date of the enactment of this Act, the Department of Defense may award a new contract for lead systems integrator functions in the acquisition of a major system only if—

"(A) the major system has not yet proceeded beyond low-rate initial production; or

"(B) the Secretary of Defense determines in writing that it would not be practicable to carry out the acquisition without continuing to use a contractor to perform lead systems integrator functions and that doing so is in the best interest of the Department.

"(3) Requirements relating to determinations.—A determination under paragraph (2)(B)—

"(A) shall specify the reasons why it would not be practicable to carry out the acquisition without continuing to use a contractor to perform lead systems integrator functions (including a discussion of alternatives, such as the use of the Department of Defense workforce, or a system engineering and technical assistance contractor);

"(B) shall include a plan for phasing out the use of contracted lead systems integrator functions over the shortest period of time consistent with the interest of the national defense;

"(C) may not be delegated below the level of the Under Secretary of Defense for Acquisition and Sustainment; and

"(D) shall be provided to the Committees on Armed Services of the Senate and the House of Representatives at least 45 days before the award of a contract pursuant to the determination.

"(b) Acquisition Workforce.—

"(1) Requirement.—The Secretary of Defense shall ensure that the acquisition workforce is of the appropriate size and skill level necessary—

"(A) to accomplish inherently governmental functions related to acquisition of major systems; and

"(B) to effectuate the purpose of subsection (a) to minimize and eventually eliminate the use of contractors to perform lead systems integrator functions.

"(2) Report.—The Secretary shall include an update on the progress made in complying with paragraph (1) in the annual report required by section 820 of the John Warner National Defense Authorization Act for Fiscal Year 2007 (Public Law 109–364; 120 Stat. 2330) [former 10 U.S.C. 1701 note].

"(c) Exception for Contracts for Other Management Services.—The Department of Defense may continue to award contracts for the procurement of services the primary purpose of which is to perform acquisition support functions with respect to the development or production of a major system, if the following conditions are met with respect to each such contract:

"(1) The contract prohibits the contractor from performing inherently governmental functions.

"(2) The Department of Defense organization responsible for the development or production of the major system ensures that Federal employees are responsible for—

"(A) determining courses of action to be taken in the best interest of the government; and

"(B) determining best technical performance for the warfighter.

"(3) The contract requires that the prime contractor for the contract may not advise or recommend the award of a contract or subcontract for the development or production of the major system to an entity owned in whole or in part by the prime contractor.

"(d) Definitions.—In this section:

"(1) Lead systems integrator.—The term 'lead systems integrator' means—

"(A) a prime contractor for the development or production of a major system, if the prime contractor is not expected at the time of award to perform a substantial portion of the work on the system and the major subsystems; or

"(B) a prime contractor under a contract for the procurement of services the primary purpose of which is to perform acquisition functions closely associated with inherently governmental functions with respect to the development or production of a major system.

"(2) Major system.—The term 'major system' has the meaning given such term in section 2302d of title 10, United States Code [now 10 U.S.C. 3041].

"(3) Low-rate initial production.—The term 'low-rate initial production' has the meaning given such term in section 2400 of title 10, United States Code [now 10 U.S.C. 4231].

"(e) Status of Future Combat Systems Program Lead System Integrator.—

"(1) Lead systems integrator.—In the case of the Future Combat Systems program, the prime contractor of the program shall be considered to be a lead systems integrator until 45 days after the Secretary of the Army certifies in writing to the congressional defense committees [Committees on Armed Services and Appropriations of the Senate and the House of Representatives] that such contractor is no longer serving as the lead systems integrator.

"(2) New contracts.—In applying subsection (a)(1) or (a)(2), any modification to the existing contract for the Future Combat Systems program, for the purpose of entering into full-rate production of major systems or subsystems, shall be considered a new contract."

§4293. Major defense acquisition programs: incentive program for contractors to purchase capital assets manufactured in United States

(a) Establishment of Incentive Program.—The Secretary of Defense shall plan and establish an incentive program in accordance with this section for contractors to purchase capital assets manufactured in the United States in part with funds available to the Department of Defense.

(b) Defense Industrial Capabilities Fund May Be Used.—The Secretary of Defense may use the Defense Industrial Capabilities Fund, established under section 814 of the National Defense Authorization Act for Fiscal Year 2004, for incentive payments under the program established under this section.

(c) Applicability to Major Defense Acquisition Program Contracts.—The incentive program shall apply to contracts for the procurement of a major defense acquisition program.

(d) Consideration.—The Secretary of Defense shall provide consideration in source selection in any request for proposals for a major defense acquisition program for offerors with eligible capital assets.

(Added Pub. L. 108–136, div. A, title VIII, §822(a)(1), Nov. 24, 2003, 117 Stat. 1546, §2436; renumbered §4293, Pub. L. 116–283, div. A, title XVIII, §1847(f)(2), Jan. 1, 2021, 134 Stat. 4258.)

Editorial Notes

References in Text

Section 814 of the National Defense Authorization Act for Fiscal Year 2004, referred to in subsec. (b), is section 814 of Pub. L. 108–136, which is set out in a note under section 4811 of this title.

Prior Provisions

Prior sections 4301 to 4303 and 4306 were renumbered sections 7401 to 7403 and 7406 of this title, respectively.

Prior sections 4307 and 4308 were repealed by Pub. L. 104–106, div. A, title XVI, §1624(a)(1), (c) Feb. 10, 1996, 110 Stat. 522, effective on the earlier of the date on which the Secretary of the Army submits a certification in accordance with section 5523 of former Title 36, Patriotic Societies and Observances, or Oct. 1, 1996.

Section 4307, act Aug. 10, 1956, ch. 1041, 70A Stat. 235, permitted President to detail commissioned officer of the Army or of the Marine Corps as director of civilian marksmanship.

Section 4308, acts Aug. 10, 1956, ch. 1041, 70A Stat. 236; Nov. 14, 1986, Pub. L. 99–661, div. A, title III, §318(a), 100 Stat. 3855; Nov. 5, 1990, Pub. L. 101–510, div. A, title III, §328(b)–(d), (g)(1), 104 Stat. 1533, 1534; Oct. 23, 1992, Pub. L. 102–484, div. A, title III, §380(a)(1), 106 Stat. 2389; Nov. 30, 1993, Pub. L. 103–160, div. A, title III, §372, 107 Stat. 1635, related to authority of Secretary of the Army to promote civilian marksmanship. See section 40701 et seq. of Title 36, Patriotic and National Observances, Ceremonies, and Organizations.

A prior section 4309 was renumbered section 7409 of this title.

Prior sections 4310 and 4311 were repealed by Pub. L. 104–106, div. A, title XVI, §1624(a)(1), (c), Feb. 10, 1996, 110 Stat. 522, effective on the earlier of the date on which the Secretary of the Army submits a certification in accordance with section 5523 of former Title 36, Patriotic Societies and Observances, or Oct. 1, 1996.

Section 4310, act Aug. 10, 1956, ch. 1041, 70A Stat. 236, permitted President and Secretary of the Army to detail members of Army as rifle instructors for civilians.

Section 4311, acts Aug. 10, 1956, ch. 1041, 70A Stat. 237; Nov. 5, 1990, Pub. L. 101–510, div. A, title III, §328(f), 104 Stat. 1534, permitted Secretary of the Army to provide for issue of military rifles and sale of ammunition for use in rifle instruction for civilians.

Prior sections 4312 and 4313 were repealed by Pub. L. 105–225, §6(b), Aug. 12, 1998, 112 Stat. 1499.

Section 4312, act Aug. 10, 1956, ch. 1041, 70A Stat. 237, related to National rifle and pistol matches and small-arms firing school.

Section 4313, act Aug. 10, 1956, ch. 1041, 70A Stat. 237; Pub. L. 99–145, title XIII, §1301(b)(3)(B), Nov. 8, 1985, 99 Stat. 735; Pub. L. 99–661, div. A, title III, §318(b), Nov. 14, 1986, 100 Stat. 3855; Pub. L. 101–510, div. A, title III, §328(a), Nov. 5, 1990, 104 Stat. 1533; Pub. L. 102–484, div. A, title III, §380(c)(1), Oct. 23, 1992, 106 Stat. 2391; Pub. L. 103–35, title II, §201(g)(10)(A), May 31, 1993, 107 Stat. 100; Pub. L. 104–106, div. A, title XVI, §1624(b)(1), Feb. 10, 1996, 110 Stat. 522, related to expenses of National Matches and small-arms school.

Prior sections 4314 and 4315 were renumbered sections 7414 and 7415 of this title, respectively.

A prior section 4316, added Pub. L. 102–484, div. A, title III, §380(d)(1), Oct. 23, 1992, 106 Stat. 2391; amended Pub. L. 104–106, div. A, title XVI, §1624(b)(2), Feb. 10, 1996, 110 Stat. 522, related to reporting requirements of the Secretary of the Army, prior to repeal by Pub. L. 115–91, div. A, title X, §1051(a)(27)(A), Dec. 12, 2017, 131 Stat. 1562.

Prior sections 4317 to 4320 were renumbered sections 7417 to 7420 of this title, respectively.

Amendments

2021—Pub. L. 116–283 renumbered section 2436 of this title as this section.

Statutory Notes and Related Subsidiaries

Effective Date of 2021 Amendment

Effective Date

Pub. L. 108–136, div. A, title VIII, §822(c), Nov. 24, 2003, 117 Stat. 1547, provided that: "Section 2436 of title 10, United States Code [now 10 U.S.C. 4293], as added by subsection (a), shall apply with respect to contracts entered into after the expiration of the 18-month period beginning on the date of the enactment of this Act [Nov. 24, 2003]."

Regulations

Pub. L. 108–136, div. A, title VIII, §822(b), Nov. 24, 2003, 117 Stat. 1547, provided that:

"(1) The Secretary of Defense shall prescribe regulations as necessary to carry out section 2436 of title 10, United States Code [now 10 U.S.C. 4293], as added by this section.

"(2) The Secretary may prescribe interim regulations as necessary to carry out such section. For this purpose, the Secretary is excepted from compliance with the notice and comment requirements of section 553 of title 5, United States Code. All interim rules prescribed under the authority of this paragraph that are not earlier superseded by final rules shall expire no later than 270 days after the effective date of section 2436 of title 10, United States Code [now 10 U.S.C. 4293] [see Effective Date note above], as added by this section."

CHAPTER 323—LIFE-CYCLE AND SUSTAINMENT

Sec.

4321.

Development of major defense acquisition programs: sustainment of system to be replaced.

4322.

[Reserved].

4323.

Sustainment reviews.

4324.

Life-cycle management and product support.

4325.

Major weapon systems: assessment, management, and control of operating and support costs.

4326.

[Reserved].

4327.

[Reserved].

4328.

Weapon system design: sustainment factors.

Editorial Notes

Prior Provisions

A prior chapter 323 "INNOVATION", consisting of reserved section 4301, was repealed by Pub. L. 116–283, div. A, title XVIII, §1841(a)(1)(A), Jan. 1, 2021, 134 Stat. 4242.

Amendments

2021—Pub. L. 117–81, div. A, title XVII, §1701(f)(9), Dec. 27, 2021, 135 Stat. 2140, added item 4324 and struck out former item 4324 "Major systems: life-cycle management and product support".

Statutory Notes and Related Subsidiaries

Standardized Policy Guidance for Calculating Aircraft Operation and Sustainment Costs

Pub. L. 116–92, div. A, title XVII, §1747, Dec. 20, 2019, 133 Stat. 1847, provided that: "Not later than 270 days after the date of the enactment of this Act [Dec. 20, 2019], the Under Secretary of Defense for Acquisition and Sustainment, in coordination with the Director of Cost Analysis and Program Evaluation and in consultation with the Secretary of each of the military services, shall develop and implement standardized policy guidance for calculating aircraft operation and sustainment costs for the Department of Defense. Such guidance shall provide for a standardized calculation of—

"(1) aircraft cost per flying hour;

"(2) aircraft cost per aircraft tail per year;

"(3) total cost of ownership per flying hour for aircraft systems;

"(4) average annual operation and sustainment cost per aircraft; and

"(5) any other cost metrics the Under Secretary of Defense determines appropriate."

Requirements Prior to Low-Rate Initial Production

Pub. L. 112–81, div. A, title VIII, §801(c), Dec. 31, 2011, 125 Stat. 1483, as amended by Pub. L. 112–239, div. A, title III, §322(e)(3), Jan. 2, 2013, 126 Stat. 1695, provided that: "Prior to entering into a contract for low-rate initial production of a major defense acquisition program, the Secretary of Defense shall ensure that the detailed requirements for core logistics capabilities and the associated sustaining workloads required to support such requirements, have been defined."

Acquisition Strategies To Ensure Competition Throughout the Lifecycle of Major Defense Acquisition Programs

Pub. L. 111–23, title II, §202, May 22, 2009, 123 Stat. 1720, as amended by Pub. L. 112–81, div. A, title VIII, §837, Dec. 31, 2011, 125 Stat. 1509; Pub. L. 112–239, div. A, title VIII, §825, Jan. 2, 2013, 126 Stat. 1833, provided that:

"(a) Acquisition Strategies To Ensure Competition.—The Secretary of Defense shall ensure that the acquisition strategy for each major defense acquisition program includes—

"(1) measures to ensure competition, or the option of competition, at both the prime contract level and the subcontract level (at such tier or tiers as are appropriate) of such program throughout the life-cycle of such program as a means to improve contractor performance; and

"(2) adequate documentation of the rationale for the selection of the subcontract tier or tiers under paragraph (1).

"(b) Measures To Ensure Competition.—The measures to ensure competition, or the option of competition, for purposes of subsection (a)(1) may include measures to achieve the following, in appropriate cases if such measures are cost-effective:

"(1) Competitive prototyping.

"(2) Dual-sourcing.

"(3) Unbundling of contracts.

"(4) Funding of next-generation prototype systems or subsystems.

"(5) Use of modular, open architectures to enable competition for upgrades.

"(6) Use of build-to-print approaches to enable production through multiple sources.

"(7) Acquisition of complete technical data packages.

"(8) Periodic competitions for subsystem upgrades.

"(9) Licensing of additional suppliers.

"(10) Periodic system or program reviews to address long-term competitive effects of program decisions.

"(c) Additional Measures To Ensure Competition at Subcontract Level.—The Secretary shall take actions to ensure competition or the option of competition at the subcontract level on major defense acquisition programs by—

"(1) where appropriate, breaking out a major subsystem, conducting a separate competition for the subsystem, and providing the subsystem to the prime contractor as Government-furnished equipment;

"(2) requiring prime contractors to give full and fair consideration to qualified sources other than the prime contractor for the development or construction of major subsystems and components of major weapon systems;

"(3) providing for government surveillance of the process by which prime contractors consider such sources and determine whether to conduct such development or construction in-house or through a subcontract; and

"(4) providing for the assessment of the extent to which a contractor has given full and fair consideration to qualified sources other than the contractor in sourcing decisions as a part of past performance evaluations.

"(d) Consideration of Competition Throughout Maintenance and Sustainment of Major Weapon Systems and Subsystems.—Whenever a decision regarding source of repair results in a plan to award a contract for performance of maintenance and sustainment of a major weapon system or subsystem of a major weapon system, the Secretary shall take actions to ensure that, to the maximum extent practicable and consistent with statutory requirements, contracts for such maintenance and sustainment, or for components needed for such maintenance and sustainment, are awarded on a competitive basis and give full consideration to all sources (including sources that partner or subcontract with public or private sector repair activities).

"(e) Applicability.—

"(1) Strategy and measures to ensure competition.—The requirements of subsections (a) and (b) shall apply to any acquisition plan for a major defense acquisition program that is developed or revised on or after the date that is 60 days after the date of the enactment of this Act [May 22, 2009].

"(2) Additional actions.—The actions required by subsections (c) and (d) shall be taken within 180 days after the date of the enactment of this Act."

Preservation of Tooling for Major Defense Acquisition Programs

Pub. L. 110–417, [div. A], title VIII, §815, Oct. 14, 2008, 122 Stat. 4530, directed the Secretary of Defense to issue, not later than 270 days after Oct. 14, 2008, guidance requiring the preservation and storage of unique tooling associated with the production of hardware for a major defense acquisition program through the end of the service life of the end item associated with such a program.

Definitions

Pub. L. 111–23, §2, May 22, 2009, 123 Stat. 1704, provided that: "In this Act [see Short Title of 2009 Amendment note set out under section 101 of this title]:

"(1) The term 'congressional defense committees' has the meaning given that term in section 101(a)(16) of title 10, United States Code.

"(2) The term 'major defense acquisition program' has the meaning given that term in section 2430 of title 10, United States Code [now 10 U.S.C. 4201].

"(3) The term 'major weapon system' has the meaning given that term in section 2379(d) [probably means section 2379(f)] of title 10, United States Code [now 10 U.S.C. 3455(f)]."

§4321. Development of major defense acquisition programs: sustainment of system to be replaced

(a) Requirement for Sustaining Existing Forces.—(1) The Secretary of Defense shall require that, whenever a new major defense acquisition program begins development, the defense acquisition authority responsible for that program shall develop a plan (to be known as a "sustainment plan") for the existing system that the system under development is intended to replace. Any such sustainment plan shall provide for an appropriate level of budgeting for sustaining the existing system until the replacement system to be developed under the major defense acquisition program is fielded and assumes the majority of responsibility for the mission of the existing system. This section does not apply to a major defense acquisition that reaches initial operational capability before October 1, 2008.

(2) In this section, the term "defense acquisition authority" means the Secretary of a military department or the commander of the United States Special Operations Command.

(b) Sustainment Plan.—The Secretary of Defense shall require that each sustainment plan under this section include, at a minimum, the following:

(1) The milestone schedule for the development of the major defense acquisition program, including the scheduled dates for low-rate initial production, initial operational capability, full-rate production, and full operational capability and the date as of when the replacement system is scheduled to assume the majority of responsibility for the mission of the existing system.

(2) An analysis of the existing system to assess the following:

(A) Anticipated funding levels necessary to—

(i) ensure acceptable reliability and availability rates for the existing system; and

(ii) maintain mission capability of the existing system against the relevant threats.

(B) The extent to which it is necessary and appropriate to—

(i) transfer mature technologies from the new system or other systems to enhance the mission capability of the existing system against relevant threats; and

(ii) provide interoperability with the new system during the period from initial fielding until the new system assumes the majority of responsibility for the mission of the existing system.

(c) Exceptions.—Subsection (a) shall not apply to a major defense acquisition program if the Secretary of Defense determines that—

(1) the existing system is no longer relevant to the mission;

(2) the mission has been eliminated;

(3) the mission has been consolidated with another mission in such a manner that another existing system can adequately meet the mission requirements; or

(4) the duration of time until the new system assumes the majority of responsibility for the existing system's mission is sufficiently short so that mission availability, capability, interoperability, and force protection requirements are maintained.

(d) Waiver.—The Secretary of Defense may waive the applicability of subsection (a) to a major defense acquisition program if the Secretary determines that, but for such a waiver, the Department would be unable to meet national security objectives. Whenever the Secretary makes such a determination and authorizes such a waiver, the Secretary shall submit notice of such waiver and of the Secretary's determination and the reasons therefor in writing to the congressional defense committees.

(Added Pub. L. 108–375, div. A, title VIII, §805(a)(1), Oct. 28, 2004, 118 Stat. 2008, §2437; renumbered §4321, Pub. L. 116–283, div. A, title XVIII, §1848(b), Jan. 1, 2021, 134 Stat. 4258.)

Editorial Notes

Prior Provisions

A prior section 4321 was renumbered section 7421 of this title.

Amendments

2021—Pub. L. 116–283 renumbered section 2437 of this title as this section.

Statutory Notes and Related Subsidiaries

Effective Date of 2021 Amendment

Effective Date

Pub. L. 108–375, div. A, title VIII, §805(b), Oct. 28, 2004, 118 Stat. 2009, provided that: "Section 2437 of title 10, United States Code [now 10 U.S.C. 4321], as added by subsection (a), shall apply with respect to a major defense acquisition program for a system that is under development as of the date of the enactment of this Act [Oct. 28, 2004] and is not expected to reach initial operational capability before October 1, 2008. The Secretary of Defense shall require that a sustainment plan under that section be developed not later than one year after the date of the enactment of this Act for the existing system that the system under development is intended to replace."

§4323. Sustainment reviews

(a) In General.—The Secretary of each military department shall conduct a sustainment review of each covered system not later than five years after declaration of initial operational capability of a major defense acquisition program, and every five years thereafter throughout the life cycle of the covered system, to assess the product support strategy, performance, and operation and support costs of the covered system. The results of the sustainment review shall be documented in a memorandum by the relevant decision authority. The Secretary concerned shall make the memorandum and supporting documentation for each sustainment review available to the Under Secretary of Defense for Acquisition and Sustainment within 30 days after the review is completed.

(b) Elements.—At a minimum, the review required under subsection (a) shall assess execution of the life cycle sustainment plan of the covered system and include the following elements:

(1) An independent cost estimate for the remainder of the life cycle of the program.

(2) A comparison of actual costs to the amount of funds budgeted and appropriated in the previous five years, and if funding shortfalls exist, an explanation of the implications on equipment availability.

(3) A comparison between the assumed and achieved system reliabilities.

(4) An analysis of the most cost-effective source of repairs and maintenance.

(5) An evaluation of the cost of consumables and depot-level repairables.

(6) An evaluation of the costs of information technology, networks, computer hardware, and software maintenance and upgrades.

(7) As applicable, an assessment of the actual fuel efficiencies compared to the projected fuel efficiencies as demonstrated in tests or operations.

(8) As applicable, a comparison of actual manpower requirements to previous estimates.

(9) An analysis of whether accurate and complete data are being reported in the cost systems of the military department concerned, and if deficiencies exist, a plan to update the data and ensure accurate and complete data are submitted in the future.

(10) As applicable, information regarding any decision to restructure the life cycle sustainment plan for a covered system or any other action that will lead to critical operating and support cost growth.

(c) Coordination.—The review required under subsection (a) shall be conducted in coordination with the requirements of sections 4324 and 4325 of this title.

(d) Submission to Congress.—(1) Not later than September 30 of each fiscal year, the Secretary of each military department shall annually submit to the congressional defense committees the sustainment reviews required by this section for such fiscal year.

(2) Each submission under paragraph (1) shall be submitted in unclassified form, but may include a classified annex.

(3) For a covered system with critical operating and support cost growth, such submission shall include a remediation plan to reduce operating and support costs or a certification by the Secretary concerned that such critical operating and support cost growth is necessary to meet national security requirements.

(e) Definitions.—In this section:

(1) Covered system.—The term "covered system" shall have the meaning given in section 4324 of this title.

(2) Critical operating and support cost growth.—The term "critical operating and support cost growth" means operating and support cost growth—

(A) of at least 25 percent more than the estimate documented in the most recent independent cost estimate for the covered system; or

(B) of at least 50 percent more than the estimate documented in the original Baseline Estimate (as defined in section 4214(d) of this title) for the covered system.

(Added Pub. L. 114–328, div. A, title VIII, §849(c)(1), Dec. 23, 2016, 130 Stat. 2293, §2441; amended Pub. L. 115–91, div. A, title VIII, §§816, 836(b)(2), Dec. 12, 2017, 131 Stat. 1462, 1473; renumbered §4323 and amended Pub. L. 116–283, div. A, title VIII, §802(c), title XVIII, §§1848(c), 1883(b)(2), Jan. 1, 2021, 134 Stat. 3732, 4258, 4294.)

Editorial Notes

Amendments

2021—Pub. L. 116–283, §1848(c), renumbered section 2441 of this title as this section.

Subsec. (a). Pub. L. 116–283, §802(c)(1), in first sentence, substituted "covered system" for "major weapon system", ", and every five years thereafter throughout the life cycle of the covered system," for "and throughout the life cycle of the weapon system", and "costs of the covered system" for "costs of the weapon system" and struck out second sentence which read as follows: "For any review after the first one, the Secretary concerned shall use availability and reliability thresholds and cost estimates as the basis for the circumstances that prompt such a review."

Subsec. (b). Pub. L. 116–283, §802(c)(2)(A), inserted "assess execution of the life cycle sustainment plan of the covered system and" before "include the following elements:" in introductory provisions.

Subsec. (b)(10). Pub. L. 116–283, §802(c)(2)(B), added par. (10).

Subsec. (c). Pub. L. 116–283, §1848(c), substituted "sections 4324 and 4325" for "sections 2337 and 2337a".

Subsec. (d). Pub. L. 116–283, §802(c)(3), added subsec. (d).

Subsec. (e). Pub. L. 116–283, §802(c)(3), added subsec. (e).

Subsec. (e)(1). Pub. L. 116–283, §1883(b)(2), substituted "section 4324" for "section 2337".

Subsec. (e)(2)(B). Pub. L. 116–283, §1883(b)(2), substituted "section 4214(d)" for "section 2435(d)".

2017—Subsec. (a). Pub. L. 115–91, §816, inserted at end "The Secretary concerned shall make the memorandum and supporting documentation for each sustainment review available to the Under Secretary of Defense for Acquisition and Sustainment within 30 days after the review is completed."

Subsec. (c). Pub. L. 115–91, §836(b)(2), substituted "sections 2337 and 2337a of this title" for "section 2337 of this title and section 832 of the National Defense Authorization Act for Fiscal Year 2012 (Public Law 112–81; 10 U.S.C. 2430 note)".

Statutory Notes and Related Subsidiaries

Effective Date of 2021 Amendment

Amendment by sections 1848(c) and 1883(b)(2) of Pub. L. 116–283 effective Jan. 1, 2022, with additional provisions for delayed implementation and applicability of existing law, see section 1801(d) of Pub. L. 116–283, set out as a note preceding section 3001 of this title.

§4324. Life-cycle management and product support

(a) Guidance on Life-Cycle Management.—The Secretary of Defense shall issue and maintain comprehensive guidance on life-cycle management and the development and implementation of product support strategies for covered systems. The guidance issued pursuant to this subsection shall—

(1) maximize competition and make the best possible use of available Department of Defense and industry resources at the system, subsystem, and component levels; and

(2) maximize value to the Department of Defense by providing the best possible product support outcomes at the lowest operations and support cost.

(b) Life Cycle Sustainment Plan.—

(1) In general.—Before granting Milestone B approval (or the equivalent), the milestone decision authority shall ensure that each covered system has an approved life cycle sustainment plan for which the milestone decision authority has received views from appropriate materiel, logistics, or fleet representatives. The life cycle sustainment plan shall include—

(A) a comprehensive product support strategy;

(B) performance goals, including key performance parameters for sustainment, key system attributes of the covered system, and other appropriate metrics;

(D) affordability constraints and key cost factors that could affect the operating and support costs of the covered system;

(E) sustainment risks and proposed mitigation plans for such risks;

(F) engineering and design considerations that support cost-effective sustainment of the covered system;

(G) an intellectual property management plan for product support, including requirements for technical data, software, and modular open system approaches (as defined in section 4401 of this title);

(H) an estimate of the number of personnel needed to operate and maintain the covered system, including military personnel, Federal employees, contractors, and host nation support personnel (as applicable);

(I) a description of opportunities for foreign military sales; and

(J) major maintenance and overhaul requirements that will be required during the life cycle of the covered system.

(2) Subsequent phases.—Before granting Milestone C approval (or the equivalent) for the covered system, the milestone decision authority shall ensure that the life cycle sustainment plan required by paragraph (1) for such covered system has been updated to include views received by the milestone decision authority from appropriate materiel, logistics, or fleet representatives.

(1) Requirement.—The Secretary of Defense shall require that each covered system be supported by a product support manager in accordance with this subsection.

(2) Responsibilities.—A product support manager for a covered system shall—

(A) develop, update, and implement a life cycle sustainment plan described in subsection (b);

(B) ensure the life cycle sustainment plan is informed by appropriate predictive analysis and modeling tools that can improve material availability and reliability, increase operational availability rates, and reduce operation and sustainment costs;

(C) conduct appropriate cost analyses to validate the product support strategy and life cycle sustainment plan, including cost-benefit analyses as outlined in Office of Management and Budget Circular A–94;

(D) ensure achievement of desired product support outcomes through development and implementation of appropriate product support arrangements;

(E) adjust performance requirements and resource allocations across product support integrators and product support providers as necessary to optimize implementation of the product support strategy;

(F) periodically review product support arrangements between the product support integrators and product support providers to ensure the arrangements are consistent with the overall product support strategy;

(G) prior to each change in the product support strategy or every five years, whichever occurs first, revalidate any business-case analysis performed in support of the product support strategy;

(H) ensure that the product support strategy maximizes small business participation at the appropriate tiers; and

(I) ensure that product support arrangements for the covered system describe how such arrangements will ensure efficient procurement, management, and allocation of Government-owned parts inventories in order to prevent unnecessary procurements of such parts.

(d) Definitions.—In this section:

(1) Product support.—The term "product support" means the package of support functions required to field and maintain the readiness and operational capability of covered systems, subsystems, and components, including all functions related to covered system readiness.

(2) Product support arrangement.—The term "product support arrangement" means a contract, task order, or any type of other contractual arrangement, or any type of agreement or non-contractual arrangement within the Federal Government, for the performance of sustainment or logistics support required for covered systems, subsystems, or components. The term includes arrangements for any of the following:

(A) Performance-based logistics.

(B) Sustainment support.

(D) Life-cycle product support.

(E) Weapon systems product support.

(3) Product support integrator.—The term "product support integrator" means an entity within the Federal Government or outside the Federal Government charged with integrating all sources of product support, both private and public, defined within the scope of a product support arrangement.

(4) Product support provider.—The term "product support provider" means an entity that provides product support functions. The term includes an entity within the Department of Defense, an entity within the private sector, or a partnership between such entities.

(5) Covered system.—The term "covered system" means—

(A) a major defense acquisition program as defined in section 4201 of this title; or

(B) an acquisition program or project that is carried out using the rapid fielding or rapid prototyping acquisition pathway under section 804 of the National Defense Authorization Act for Fiscal Year 2016 (Public Law 114–92; 10 U.S.C. 2302 note) ¹ that is estimated by the Secretary of Defense to require an eventual total expenditure described in section 4201(a)(2).

(6) Milestone b approval.—The term "Milestone B approval" has the meaning given that term in section 4172(e)(7) of this title.

(7) Milestone c approval.—The term "Milestone C approval" has the meaning given that term in section 4172(e)(8) of this title.

(8) Milestone decision authority.—The term "milestone decision authority" has the meaning given in section 4211(e)(3) of this title.

(Added Pub. L. 112–239, div. A, title VIII, §823(a)(1), Jan. 2, 2013, 126 Stat. 1830, §2337; amended Pub. L. 113–66, div. A, title VIII, §823, Dec. 26, 2013, 127 Stat. 809; renumbered §4324 and amended Pub. L. 116–283, div. A, title VIII, §802(a), title XVIII, §§1848(d)(1), (2), 1883(b)(2), Jan. 1, 2021, 134 Stat. 3731, 4258, 4294; Pub. L. 117–81, div. A, title XVII, §1701(b)(17), (d)(11), Dec. 27, 2021, 135 Stat. 2135, 2137; Pub. L. 117–263, div. A, title VIII, §806, Dec. 23, 2022, 136 Stat. 2702.)

Editorial Notes

References in Text

Section 804 of the National Defense Authorization Act for Fiscal Year 2016, referred to in subsec. (d)(5)(B), is section 804 of Pub. L. 114–92, which is set out as a note preceding section 3201 of this title.

Amendments

2022—Subsec. (b). Pub. L. 117–263, §806(a), designated existing provisions as par. (1) and inserted heading; inserted "for which the milestone decision authority has received views from appropriate materiel, logistics, or fleet representatives" after "approved life cycle sustainment plan"; designated former pars. (1) to (8) as subpars. (A) to (G) and (J), respectively, of par. (1); amended subpar. (G) generally, prior to which text read "a technical data and intellectual property management plan for product support; and"; added subpars. (H) and (I) of par. (1); and added par. (2). Amendment adding par. (2) "at the end of" par. (1) was executed by adding par. (2) after par. (1) to reflect the probable intent of Congress.

Subsec. (d)(7), (8). Pub. L. 117–263, §806(b), added par. (7) and redesignated former par. (7) as (8).

2021—Pub. L. 116–283, §1848(d)(1), renumbered section 2337 of this title as this section.

Pub. L. 116–283, §802(a)(1)–(3), substituted "covered system" for "major weapon system" and "weapon system" and "covered systems" for "major weapon systems" wherever appearing.

Subsec. (b). Pub. L. 116–283, §802(a)(5), added subsec. (b). Former subsec. (b) redesignated (c).

Subsec. (c). Pub. L. 116–283, §802(a)(4), redesignated subsec. (b) as (c). Former subsec. (c) redesignated (d).

Subsec. (c)(2)(A). Pub. L. 116–283, §802(a)(6)(A), amended subpar. (A) generally. Prior to amendment, subpar. (A) read as follows: "develop and implement a comprehensive product support strategy for the weapon system;".

Subsec. (c)(2)(B). Pub. L. 116–283, §802(a)(6)(B), substituted "ensure the life cycle sustainment plan is informed by" for "use".

Subsec. (c)(2)(C). Pub. L. 116–283, §802(a)(6)(C), inserted "and life cycle sustainment plan" after "product support strategy".

Subsec. (c)(5). Pub. L. 116–283, §1848(d)(2), which directed amendment of subsec. (c)(5) by substituting "section 3041(c)(1)" for "section 2302d(a)" and could not be executed, was repealed by Pub. L. 117–81, §1701(b)(17).

Subsec. (d). Pub. L. 116–283, §802(a)(4), redesignated subsec. (c) as (d).

Subsec. (d)(5). Pub. L. 116–283, §802(a)(7)(A), amended par. (5) generally. Prior to amendment, par. (5) defined "major weapon system".

Subsec. (d)(5)(A). Pub. L. 117–81, §1701(d)(11)(A), substituted "section 4201" for "section 2430".

Pub. L. 116–283, §1883(b)(2), which directed that each reference in the text of title 10 to a section that was redesignated by title XVIII of Pub. L. 116–283, as such section was in effect before the redesignation, be amended by striking such reference and inserting a reference to the appropriate redesignated section, was not executed with respect to "section 2430", which was redesignated as multiple sections.

Subsec. (d)(5)(B). Pub. L. 117–81, §1701(d)(11)(A), which directed the substitution of "section 4201(a)(2) of this title" for "section 2430(a)(1)(B)", could not be executed because of the intervening amendment by Pub. L. 116–283, §1883(b)(2). See note below.

Pub. L. 116–283, §1883(b)(2), substituted "section 4201(a)(2)" for "section 2430(a)(1)(B)".

Subsec. (d)(6). Pub. L. 117–81, §1701(d)(11)(B), which directed the substitution of "section 4172(e)(7)" for "section 2366(e)(7)", could not be executed because of the intervening amendment by Pub. L. 116–283, §1883(b)(2). See note below.

Pub. L. 116–283, §1883(b)(2), substituted "section 4172(e)(7)" for "section 2366(e)(7)".

Pub. L. 116–283, §802(a)(7)(B), added par. (6).

Subsec. (d)(7). Pub. L. 117–81, §1701(d)(11)(C), which directed the substitution of "section 4211(e)(3)" for "section 2431a(e)(5)", could not be executed because of the intervening amendment by Pub. L. 116–283, §1883(b)(2). See note below.

Pub. L. 116–283, §1883(b)(2), substituted "section 4211(e)(3)" for "section 2431a(e)(5)".

Pub. L. 116–283, §802(a)(7)(B), added par. (7).

2013—Subsec. (b)(2)(I). Pub. L. 113–66 added subpar. (I).

Statutory Notes and Related Subsidiaries

Effective Date of 2021 Amendment

Amendment by section 1701(d)(11) of Pub. L. 117–81 to take effect immediately after the amendments made by title XVIII of Pub. L. 116–283 have taken effect, see section 1701(a)(3) of Pub. L. 117–81, set out in a note preceding section 3001 of this title and note below.

Amendment by sections 1848(d)(1), (2) and 1883(b)(2) of Pub. L. 116–283 effective Jan. 1, 2022, with additional provisions for delayed implementation and applicability of existing law, see section 1801(d) of Pub. L. 116–283, set out as a note preceding section 3001 of this title.

Similar Provisions

Provisions similar to those in this section were contained in section 805 of Pub. L. 111–84, which was set out as a note under section 2302 of this title prior to repeal by Pub. L. 112–239, div. A, title VIII, §823(b), Jan. 2, 2013, 126 Stat. 1832.

¹ See References in Text note below.

§4325. Major weapon systems: assessment, management, and control of operating and support costs

(a) Guidance Required.—The Secretary of Defense shall issue and maintain guidance on actions to be taken to assess, manage, and control Department of Defense costs for the operation and support of major weapon systems.

(b) Elements.—The guidance required by subsection (a) shall, at a minimum—

(1) be issued in conjunction with the comprehensive guidance on life-cycle management and the development and implementation of product support strategies for major weapon systems required by section 4324 of this title;

(2) require the military departments to retain each estimate of operating and support costs that is developed at any time during the life cycle of a major weapon system, together with supporting documentation used to develop the estimate;

(3) require the military departments to update estimates of operating and support costs periodically throughout the life cycle of a major weapon system, to determine whether preliminary information and assumptions remain relevant and accurate, and identify and record reasons for variances;

(4) establish policies and procedures for the collection, organization, maintenance, and availability of standardized data on operating and support costs for major weapon systems in accordance with section 2222 of this title;

(5) establish standard requirements for the collection and reporting of data on operating and support costs for major weapon systems by contractors performing weapon system sustainment functions in an appropriate format, and develop contract clauses to ensure that contractors comply with such requirements;

(6) require the military departments—

(A) to collect and retain data from operational and developmental testing and evaluation on the reliability and maintainability of major weapon systems; and

(B) to use such data to inform system design decisions, provide insight into sustainment costs, and inform estimates of operating and support costs for such systems;

(7) require the military departments to ensure that sustainment factors are fully considered at key life-cycle management decision points and that appropriate measures are taken to reduce operating and support costs by influencing system design early in development, developing sound sustainment strategies, and addressing key drivers of costs;

(8) require the military departments to conduct an independent logistics assessment of each major weapon system prior to key acquisition decision points (including milestone decisions) to identify features that are likely to drive future operating and support costs, changes to system design that could reduce such costs, and effective strategies for managing such costs;

(9) include—

(A) reliability metrics for major weapon systems; and

(B) requirements on the use of metrics under subparagraph (A) as triggers—

(i) to conduct further investigation and analysis into drivers of those metrics; and

(ii) to develop strategies for improving reliability, availability, and maintainability of such systems at an affordable cost; and

(10) require the military departments to conduct periodic reviews of operating and support costs of major weapon systems after such systems achieve initial operational capability to identify and address factors resulting in growth in operating and support costs and adapt support strategies to reduce such costs.

(1) In general.—The Director of Cost Assessment and Program Evaluation shall be responsible for developing and maintaining a database on operating and support estimates, supporting documentation, and actual operating and support costs for major weapon systems.

(2) Support.—The Secretary of Defense shall ensure that the Director, in carrying out such responsibility—

(A) promptly receives the results of all cost estimates and cost analyses conducted by the military departments with regard to operating and support costs of major weapon systems;

(B) has timely access to any records and data of the military departments (including classified and proprietary information) that the Director considers necessary to carry out such responsibility; and

(C) with the concurrence of the Under Secretary of Defense for Acquisition and Sustainment, may direct the military departments to collect and retain information necessary to support the database.

(d) Major Weapon System Defined.—In this section, the term "major weapon system" has the meaning given that term in section 3455(f) of this title.

(Added Pub. L. 115–91, div. A, title VIII, §836(a)(1), Dec. 12, 2017, 131 Stat. 1472, §2337a; amended Pub. L. 115–232, div. A, title X, §1081(a)(20), Aug. 13, 2018, 132 Stat. 1984; renumbered §4325 and amended Pub. L. 116–283, div. A, title XVIII, §1848(d)(1), (3), Jan. 1, 2021, 134 Stat. 4258.)

Editorial Notes

Amendments

2021—Pub. L. 116–283, §1848(d)(3)(B), amended section catchline generally. Prior to amendment, section catchline read as follows: "Assessment, management, and control of operating and support costs for major weapon systems".

Pub. L. 116–283, §1848(d)(1), renumbered section 2337a of this title as this section.

Subsec. (b)(1). Pub. L. 116–283, §1848(d)(3)(A)(i), substituted "section 4324" for "section 2337".

Subsec. (d). Pub. L. 116–283, §1848(d)(3)(A)(ii), substituted "section 3455(f)" for "section 2379(f)".

2018—Subsec. (d). Pub. L. 115–232 substituted "this title" for "title 10, United States Code".

Statutory Notes and Related Subsidiaries

Effective Date of 2021 Amendment

Pilot Program on Time-Certain Development in Acquisition of Major Weapon Systems

Pub. L. 109–364, div. A, title VIII, §812, Oct. 17, 2006, 120 Stat. 2317, as amended by Pub. L. 110–417, [div. A], title VIII, §813(d)(3), Oct. 14, 2008, 122 Stat. 4527; Pub. L. 111–84, div. A, title X, §1073(c)(5), Oct. 28, 2009, 123 Stat. 2474; Pub. L. 116–283, div. A, title XVIII, §1806(e)(2)(D), Jan. 1, 2021, 134 Stat. 4155, provided that:

"(a) Pilot Program Authorized.—The Secretary of Defense may carry out a pilot program on the use of time-certain development in the acquisition of major weapon systems.

"(b) Purpose of Pilot Program.—The purpose of the pilot program authorized by subsection (a) is to assess the feasibility and advisability of utilizing time-certain development in the acquisition of major weapon systems in order to deliver new capabilities to the warfighter more rapidly through—

"(1) disciplined decision-making;

"(2) emphasis on technological maturity; and

"(3) appropriate trade-offs between—

"(A) cost and system performance; and

"(B) program schedule.

"(c) Inclusion of Systems in Pilot Program.—

"(1) In general.—The Secretary of Defense may include a major weapon system in the pilot program only if—

"(A) the major weapon system meets the criteria under paragraph (2) in accordance with that paragraph; and

"(B) the Milestone Decision Authority nominates such program to the Secretary of Defense for inclusion in the program.

"(2) Criteria.—For purposes of paragraph (1) a major weapon system meets the criteria under this paragraph only if the Milestone Decision Authority determines, in consultation with the service acquisition executive for the military department carrying out the acquisition program for the system and one or more combatant commanders responsible for fielding the system, that—

"(A) the certification requirements of section 2366b of title 10, United States Code [now 10 U.S.C. 4252] (as amended by section 805 of this Act), have been met, and no waivers have been granted from such requirements;

"(B) a preliminary design has been reviewed using systems engineering, and the system, as so designed, will meet battlefield needs identified by the relevant combatant commanders after appropriate requirements analysis;

"(C) a representative model or prototype of the system, or key subsystems, has been demonstrated in a relevant environment, such as a well-simulated operational environment;

"(D) an independent cost estimate has been conducted and used as the basis for funding requirements for the acquisition program for the system;

"(E) the budget of the military department responsible for carrying out the acquisition program for the system provides the funding necessary to execute the product development and production plan consistent with the requirements identified pursuant to subparagraph (D);

"(F) an appropriately qualified program manager has entered into a performance agreement with the Milestone Decision Authority that establishes expected parameters for the cost, schedule, and performance of the acquisition program for the system, consistent with a business case for such acquisition program;

"(G) the service acquisition executive and the program manager have developed a strategy to ensure stability in program management until, at a minimum, the delivery of the initial operational capability under the acquisition program for the system has occurred;

"(H) the service acquisition executive, the relevant combatant commanders, and the program manager have agreed that no additional requirements that would be inconsistent with the agreed-upon program schedule will be added during the development phase of the acquisition program for the system; and

"(I) a planned initial operational capability will be delivered to the relevant combatant commanders within a defined period of time as prescribed in regulations by the Secretary of Defense.

"(3) Timing of decision.—The decision whether to include a major weapon system in the pilot program shall be made at the time of milestone approval for the acquisition program for the system.

"(d) Limitation on Number of Weapons Systems in Pilot Program.—The number of major weapon systems included in the pilot program at any time may not exceed six major weapon systems.

"(e) Limitation on Cost of Weapons Systems in Pilot Program.—The Secretary of Defense may include a major weapon system in the pilot program only if, at the time a major weapon system is proposed for inclusion, the total cost for system design and development of the weapon system, as set forth in the cost estimate referred to in subsection (c)(2)(D), does not exceed $1,000,000,000 during the period covered by the current future-years defense program.

"(f) Special Funding Authority.—

"(1) Authority for reserve account.—Notwithstanding any other provision of law, the Secretary of Defense may establish a special reserve account utilizing funds made available for the major weapon systems included in the pilot program.

"(2) Elements.—The special reserve account may include—

"(A) funds made available for any major weapon system included in the pilot program to cover termination liability;

"(B) funds made available for any major weapon system included in the pilot program for award fees that may be earned by contractors; and

"(C) funds appropriated to the special reserve account.

"(3) Availability of funds.—Funds in the special reserve account may be used, in accordance with guidance issued by the Secretary for purposes of this section, for the following purposes:

"(A) To cover termination liability for any major weapon system included in the pilot program.

"(B) To pay award fees that are earned by any contractor for a major weapon system included in the pilot program.

"(C) To address unforeseen contingencies that could prevent a major weapon system included in the pilot program from meeting critical schedule or performance requirements.

"(4) Reports on use of funds.—Not later than 30 days after the use of funds in the special reserve account for the purpose specified in paragraph (3)(C), the Secretary shall submit to the congressional defense committees [Committees on Armed Services and Appropriations of the Senate and the House of Representatives] a report on the use of funds in the account for such purpose. The report shall set forth the purposes for which the funds were used and the reasons for the use of the funds for such purposes.

"(5) Relationship to appropriations.—Nothing in this subsection may be construed as extending any period of time for which appropriated funds are made available.

"(g) Administration of Pilot Program.—The Secretary of Defense shall prescribe policies and procedures on the administration of the pilot program. Such policies and procedures shall—

"(1) provide for the use of program status reports based on earned value data to track progress on a major weapon system under the pilot program against baseline estimates applicable to such system at each systems engineering technical review point; and

"(2) grant authority, to the maximum extent practicable, to the program manager for the acquisition program for a major weapon system to make key program decisions and trade-offs, subject to management reviews only if cost or schedule deviations exceed the baselines for such acquisition program by 10 percent or more.

"(h) Removal of Weapons Systems From Pilot Program.—The Secretary of Defense shall remove a major weapon system from the pilot program if—

"(1) the weapon system receives Milestone C approval; or

"(2) the Secretary determines that the weapon system is no longer in substantial compliance with the criteria in subsection (c)(2) or is otherwise no longer appropriate for inclusion in the pilot program.

"(i) Expiration of Authority To Include Additional Systems in Pilot Program.—

"(1) Expiration.—A major weapon system may not be included in the pilot program after September 30, 2012.

"(2) Retention of systems.—A major weapon system included in the pilot program before the date specified in paragraph (1) in accordance with the requirements of this section may remain in the pilot program after that date.

"(j) Annual Report.—

"(1) In general.—Not later than one year after including the first major weapon system in the pilot program, and annually thereafter, the Secretary shall submit to the congressional defense committees [Committees on Armed Services and Appropriations of the Senate and the House of Representatives] a report on the pilot program, and the major weapon systems included in the pilot program, during the one-year period ending on the date of such report.

"(2) Elements.—Each report under this subsection shall include—

"(A) a description of progress under the pilot program, and on each major weapon system included in the pilot program, during the period covered by such report;

"(B) a description of the use of all funds in the special reserve account established under subsection (f); and

"(C) such other matters as the Secretary considers appropriate.

"(k) Major Weapon System Defined.—In this section, the term 'major weapon system' means a weapon system that is treatable as a major system under section 3041 of title 10, United States Code."

[Pub. L. 111–84, div. A, title X, §1073(c), Oct. 28, 2009, 123 Stat. 2474, provided that the amendment made by section 1073(c)(5) to section 813(d)(3) of Pub. L. 110–417 (which amended section 812 of Pub. L. 109–364, set out above) is effective as of Oct. 14, 2008, and as if included in Pub. L. 110–417 as enacted.]

§4328. Weapon system design: sustainment factors

(a) In General.—The Secretary of Defense shall ensure that the defense acquisition system gives ample emphasis to sustainment factors, particularly those factors that are affected principally by the design of a weapon system, in the development of a weapon system.

(b) Requirements Process.—The Secretary shall ensure that reliability and maintainability are included in the performance attributes of the key performance parameter on sustainment during the development of capabilities requirements.

(1) Requirement.—The program manager of a weapon system shall include in the solicitation for and terms of a covered contract for the weapon system clearly defined and measurable requirements for engineering activities and design specifications for reliability and maintainability.

(2) Exception.—If the program manager determines that engineering activities and design specifications for reliability or maintainability should not be a requirement in a covered contract or a solicitation for such a contract, the program manager shall document in writing the justification for the decision.

(3) Source selection criteria.—The Secretary shall ensure that sustainment factors, including reliability and maintainability, are given ample emphasis in the process for source selection. The Secretary shall encourage the use of objective reliability and maintainability criteria in the evaluation of competitive proposals.

(d) Contract Performance.—

(1) In general.—The Secretary shall ensure that the Department of Defense uses best practices for responding to the positive or negative performance of a contractor in meeting the sustainment requirements of a covered contract for a weapon system. The Secretary shall encourage the use of incentive fees and penalties as appropriate and authorized in paragraph (2) in all covered contracts for weapons systems.

(2) Authority for incentive fees and penalties.—The Secretary of Defense is authorized to include in any covered contract provisions for the payment of incentive fees to the contractor based on achievement of design specification requirements for reliability and maintainability of weapons systems under the contract, or the imposition of penalties to be paid by the contractor to the Government for failure to achieve such design specification requirements. Information about such fees or penalties shall be included in the solicitation for any covered contract that includes such fees or penalties.

(3) Measurement of reliability and maintainability.—In carrying out paragraph (2), the program manager shall base determinations of a contractor's performance on reliability and maintainability data collected during the program. Such data collection and associated evaluation metrics shall be described in detail in the covered contract. To the maximum extent practicable, such data shall be shared with appropriate contractor and government organizations.

(4) Notification.—The Secretary of Defense shall notify the congressional defense committees upon entering into a covered contract that includes incentive fees or penalties authorized in paragraph (2).

(e) Covered Contract Defined.—In this section, the term "covered contract", with respect to a weapon system, means a contract—

(1) for the engineering and manufacturing development of a weapon system, including embedded software; or

(2) for the production of a weapon system, including embedded software.

(Added Pub. L. 115–91, div. A, title VIII, §834(a)(1), Dec. 12, 2017, 131 Stat. 1469, §2443; renumbered §4328 and amended Pub. L. 116–283, div. A, title XVIII, §1848(e), Jan. 1, 2021, 134 Stat. 4259.)

Editorial Notes

Prior Provisions

Prior sections 4331 to 4338 were renumbered sections 7431 to 7438 of this title, respectively.

A prior section 4339, act Aug. 10, 1956, ch. 1041, 70A Stat. 240, authorized public quarters and fuel and light therefor for the organist and choirmaster of the Academy and for civilian instructors in the departments of foreign languages and tactics, prior to repeal by Pub. L. 89–716, §1, Nov. 2, 1966, 80 Stat. 1114.

Prior sections 4340 to 4343 were renumbered sections 7440 to 7443 of this title, respectively.

Prior sections 4344 to 4345a were repealed by Pub. L. 114–328, div. A, title XII, §1248(b)(1), Dec. 23, 2016, 130 Stat. 2525.

Section 4344, act Aug. 10, 1956, ch. 1041, 70A Stat. 242; Pub. L. 98–94, title X, §1004(a)(1), Sept. 24, 1983, 97 Stat. 657; Pub. L. 105–85, div. A, title V, §543(a), Nov. 18, 1997, 111 Stat. 1743; Pub. L. 106–65, div. A, title V, §534(a), Oct. 5, 1999, 113 Stat. 605; Pub. L. 106–398, §1 [[div. A], title V, §532(a)], Oct. 30, 2000, 114 Stat. 1654, 1654A-110; Pub. L. 107–107, div. A, title V, §533(a)(1), (2), Dec. 28, 2001, 115 Stat. 1105, related to selection of persons from foreign countries to receive instruction at the United States Military Academy. See section 347 of this title.

Section 4345, added Pub. L. 105–85, div. A, title V, §542(a)(1), Nov. 18, 1997, 111 Stat. 1740; amended Pub. L. 106–65, div. A, title V, §535(a), Oct. 5, 1999, 113 Stat. 605; Pub. L. 109–364, div. A, title V, §531(a), Oct. 17, 2006, 120 Stat. 2198, related to an exchange program with foreign military academies.

A prior section 4345, act Aug. 10, 1956, ch. 1041, 70A Stat. 242, related to selection of Filipinos for instruction at the Military Academy, prior to repeal by Pub. L. 98–94, title X, §1004(a)(2), (d), Sept. 24, 1983, 97 Stat. 658, 660, effective one year after Sept. 24, 1983.

Section 4345a, added Pub. L. 110–417, [div. A], title V, §541(a)(1), Oct. 14, 2008, 122 Stat. 4454; amended Pub. L. 113–291, div. A, title V, §553(a), Dec. 19, 2014, 128 Stat. 3377, related to foreign and cultural exchange activities.

Prior sections 4346 to 4349 were renumbered sections 7446 to 7449 of this title, respectively.

Amendments

2021—Pub. L. 116–283, §1848(e)(2), amended section catchline generally. Prior to amendment, section catchline read as follows: "Sustainment factors in weapon system design".

Pub. L. 116–283, §1848(e)(1), renumbered section 2443 of this title as this section. Section was inserted after section 4325 of this title to reflect the probable intent of Congress, notwithstanding directory language inserting it after section "4235".

Statutory Notes and Related Subsidiaries

Effective Date of 2021 Amendment

Effective Date

Pub. L. 115–91, div. A, title VIII, §834(b), Dec. 12, 2017, 131 Stat. 1470, provided that: "Subsections (c) and (d) of section 2443 of title 10, United States Code [now 10 U.S.C. 4328], as added by subsection (a), shall apply with respect to any covered contract (as defined in that section) for which the contract solicitation is issued on or after the date occurring one year after the date of the enactment of this Act [Dec. 12, 2017]."

Implementation of Recommendations of the Independent Study on Consideration of Sustainment in Weapons Systems Life Cycle

Pub. L. 115–232, div. A, title VIII, §832, Aug. 13, 2018, 132 Stat. 1857, provided that:

"(a) Implementation Required.—Not later than 18 months after the date of the enactment of this Act [Aug. 13, 2018], the Secretary of Defense shall, except as provided under subsection (b), commence implementation of each recommendation submitted as part of the independent assessment produced under section 844 of the National Defense Authorization Act for Fiscal Year 2017 (Public Law 114–328; 130 Stat. 2290).

"(b) Exceptions.—

"(1) Delayed implementation.—The Secretary of Defense may commence implementation of a recommendation described under subsection (a) later than the date required under such subsection if the Secretary provides the congressional defense committees [Committees on Armed Services and Appropriations of the Senate and the House of Representatives] with a specific justification for the delay in implementation of such recommendation.

"(2) Nonimplementation.—The Secretary of Defense may opt not to implement a recommendation described under subsection (a) if the Secretary provides to the congressional defense committees—

"(A) the reasons for the decision not to implement the recommendation; and

"(B) a summary of the alternative actions the Secretary plans to take to address the purposes underlying the recommendation.

"(c) Implementation Plans.—For each recommendation that the Secretary is implementing, or that the Secretary plans to implement, the Secretary shall submit to the congressional defense committees—

"(1) a summary of actions that have been taken to implement the recommendation; and

"(2) a schedule, with specific milestones, for completing the implementation of the recommendation."

Engineering Change Authorized

Pub. L. 115–91, div. A, title VIII, §834(c), Dec. 12, 2017, 131 Stat. 1470, provided that: "Subject to the availability of appropriations, the Secretary of Defense may fund engineering changes to the design of a weapon system in the engineering and manufacturing development phase or in the production phase of an acquisition program to improve reliability or maintainability of the weapon system and reduce projected operating and support costs."

CHAPTER 324—SELECTED ACQUISITION REPORTS

Sec.

4351.

Selected Acquisition Reports.

Editorial Notes

Amendments

2021—Pub. L. 117–81, div. A, title XVII, §1701(o)(1)(A), (2)(B), Dec. 27, 2021, 135 Stat. 2146, amended Pub. L. 116–283, div. A, title XVIII, §1849(a), Jan. 1, 2021, 134 Stat. 4259, which added this analysis, by substituting "SELECTED ACQUISITION REPORTS" for "PROGRAM STATUS–SELECTED ACQUISITION REPORTS" in chapter heading, adding item 4351, and striking out what would have been items 4350 to 4358. Amendment by section 1701(o)(2)(B) of Pub. L. 117–81, which directed amendment of the text inserted by section 1849 of Pub. L. 116–283, was executed as if it had referred to the text inserted by section 1849(a) of that Act to reflect the probable intent of Congress.

[§4350. Omitted]

Editorial Notes

Codification

See Codification note set out under section 4351 of this title.

§4351. Selected Acquisition Reports

(a) In this section:

(1) The term "program acquisition unit cost", with respect to a major defense acquisition program, means the amount equal to (A) the total cost for development and procurement of, and system-specific military construction for, the acquisition program, divided by (B) the number of fully-configured end items to be produced for the acquisition program.

(2) The term "procurement unit cost", with respect to a major defense acquisition program, means the amount equal to (A) the total of all funds programmed to be available for obligation for procurement for the program, divided by (B) the number of fully-configured end items to be procured.

(3) The term "major contract", with respect to a major defense acquisition program, means each of the six largest prime, associate, or Government-furnished equipment contracts under the program that is in excess of $40,000,000 and that is not a firm, fixed price contract.

(4) The term "full life-cycle cost", with respect to a major defense acquisition program, means all costs of development, procurement, military construction, and operations and support, without regard to funding source or management control.

(b)(1) The Secretary of Defense shall submit to Congress at the end of each fiscal-year quarter a report on current major defense acquisition programs and any program that is estimated by the Secretary of Defense to require an eventual total expenditure for research, development, test, and evaluation of more than $300,000,000 (based on fiscal year 1990 constant dollars) or an eventual total expenditure for procurement, including all planned increments or spirals, of more than $1,800,000,000 (based on fiscal year 1990 constant dollars). Except as provided in paragraphs (2) and (3), each such report shall include a status report on each defense acquisition program that at the end of such quarter is a major defense acquisition program. Reports under this section shall be known as Selected Acquisition Reports.

(2) A status report on a major defense acquisition program need not be included in the Selected Acquisition Report for the second, third, or fourth quarter of a fiscal year if such a report was included in a previous Selected Acquisition Report for that fiscal year and during the period since that report there has been—

(A) less than a 15 percent increase in program acquisition unit cost and current procurement unit cost for the program (or for each designated subprogram under the program); and

(B) less than a six-month delay in any program schedule milestone shown in the Selected Acquisition Report.

(3)(A) The Secretary of Defense may waive the requirement for submission of Selected Acquisition Reports for a program for a fiscal year if—

(i) the program has not entered system development and demonstration;

(ii) a reasonable cost estimate has not been established for such program; and

(iii) the system configuration for such program is not well defined.

(B) The Secretary shall submit to the Committee on Armed Services of the Senate and the Committee on Armed Services of the House of Representatives a written notification of each waiver under subparagraph (A) for a program for a fiscal year not later than 60 days before the President submits the budget to Congress pursuant to section 1105 of title 31 in that fiscal year.

(c)(1) Each Selected Acquisition Report for the first quarter for a fiscal year shall include—

(A) the same information, in detailed and summarized form, as is provided in reports submitted under section 4205 of this title;

(B) for each major defense acquisition program or designated major subprogram included in the report—

(i) the Baseline Estimate (as that term is defined in section 4371(a)(4) of this title), along with the associated risk and sensitivity analysis of that estimate;

(ii) the original Baseline Estimate (as that term is defined in section 4214(d)(1) of this title), along with the associated risk and sensitivity analysis of that estimate;

(iii) if the original Baseline Estimate was adjusted or revised pursuant to section 4214(d)(2) of this title, such adjusted or revised estimate, along with the associated risk and sensitivity analysis of that estimate; and

(iv) the primary risk parameters associated with the current procurement cost for the program (as that term is used in subsection (e)(4));

(C) a summary of the history of significant developments from the date each major defense acquisition program or designated major subprogram included in the report was first included in a Selected Acquisition Report and program highlights since the last Selected Acquisition Report;

(D) the significant schedule and technical risks for each such program or subprogram, identified at each major milestone and as of the quarter for which the current report is submitted;

(E) the current program acquisition cost and program acquisition unit cost for each such program or subprogram included in the report and the history of those costs from the December 2001 reporting period to the end of the quarter for which the current report is submitted;

(F) the current procurement unit cost for each such program or subprogram included in the report and the history of that cost from the December 2001 reporting period to the end of the quarter for which the current report is submitted;

(G) for each major defense acquisition program that receives Milestone B approval after January 1, 2019, a brief summary description of the key elements of the modular open system approach as defined in section 4401 of this title or, if a modular open system approach was not used, the rationale for not using such an approach; and

(H) such other information as the Secretary of Defense considers appropriate.

(2) Each Selected Acquisition Report for the first quarter of a fiscal year shall be designed to provide to the Committee on Armed Services of the Senate and the Committee on Armed Services of the House of Representatives the information such Committees need to perform their oversight functions. Whenever the Secretary of Defense proposes to make changes in the content of a Selected Acquisition Report, the Secretary shall submit a notice of the proposed changes to such committees. The changes shall be considered approved by the Secretary, and may be incorporated into the report, only after the end of the 60-day period beginning on the date on which the notice is received by those committees.

(3) In addition to the material required by paragraphs (1) and (2), each Selected Acquisition Report for the first quarter of a fiscal year shall include the following:

(A) A full life-cycle cost analysis for each major defense acquisition program and each designated major subprogram included in the report that is in the system development and demonstration stage or has completed that stage. The Secretary of Defense shall ensure that this subparagraph is implemented in a uniform manner, to the extent practicable, throughout the Department of Defense.

(B) If the system that is included in that major defense acquisition program has an antecedent system, a full life-cycle cost analysis for that system.

(4) Selected Acquisition Reports for the first quarter of a fiscal year shall be known as comprehensive annual Selected Acquisition Reports.

(d)(1) Each Selected Acquisition Report for the second, third, and fourth quarters of a fiscal year shall include—

(A) with respect to each major defense acquisition program that was included in the most recent comprehensive annual Selected Acquisition Report, the information described in subsection (e); and

(B) with respect to each major defense acquisition program that was not included in the most recent comprehensive annual Selected Acquisition Report, the information described in subsection (c).

(2) Selected Acquisition Reports for the second, third, and fourth quarters of a fiscal year shall be known as Quarterly Selected Acquisition Reports.

(e) Information to be included under this subsection in a Quarterly Selected Acquisition Report with respect to a major defense acquisition program is as follows:

(1) The quantity of items to be purchased under the program.

(2) The program acquisition cost.

(3) The program acquisition unit cost for the program (or for each designated major subprogram under the program).

(4) The current procurement cost for the program.

(5) The current procurement unit cost for the program (or for each designated major subprogram under the program).

(6) The reasons for any change in program acquisition cost, program acquisition unit cost, procurement cost, or procurement unit cost or in program schedule from the previous Selected Acquisition Report.

(7) The reasons for any significant changes (from the previous Selected Acquisition Report) in the total program cost for development and procurement of the software component of the program or subprogram, schedule milestones for the software component of the program or subprogram, or expected performance for the software component of the program or subprogram that are known, expected, or anticipated by the program manager.

(8) The major contracts under the program and designated major subprograms under the program and the reasons for any cost or schedule variances under those contracts since the last Selected Acquisition Report.

(9) Program highlights since the last Selected Acquisition Report.

(f) Each comprehensive annual Selected Acquisition Report shall be submitted within 30 days after the date on which the President transmits the Budget to Congress for the following fiscal year, and each Quarterly Selected Acquisition Report shall be submitted within 45 days after the end of the fiscal-year quarter.

(g) The requirements of this section with respect to a major defense acquisition program or designated major subprogram shall cease to apply after 90 percent of the items to be delivered to the United States under the program or subprogram (shown as the total quantity of items to be purchased under the program or subprogram in the most recent Selected Acquisition Report) have been delivered or 90 percent of planned expenditures under the program or subprogram have been made.

(h)(1) Total program reporting under this section shall apply to a major defense acquisition program when funds have been appropriated for such program and the Secretary of Defense has decided to proceed to system development and demonstration of such program. Reporting may be limited to the development program as provided in paragraph (2) before a decision is made by the Secretary of Defense to proceed to system development and demonstration if the Secretary notifies the Committee on Armed Services of the Senate and the Committee on Armed Services of the House of Representatives of the intention to submit a limited report under this subsection not less than 15 days before a report is due under this section.

(2) A limited report under this subsection shall include the following:

(A) The same information, in detail and summarized form, as is provided in reports submitted under subsections (b)(1) and (b)(3) of section 4205 of this title.

(B) Reasons for any change in the development cost and schedule.

(C) The major contracts under the development program and designated major subprograms under the program and the reasons for any cost or schedule variances under those contracts since the last Selected Acquisition Report.

(D) Program highlights since the last Selected Acquisition Report.

(E) Other information as the Secretary of Defense considers appropriate.

(3) The submission requirements for a limited report under this subsection shall be the same as for quarterly Selected Acquisition Reports for total program reporting.

(i) Form of Report.—A Selected Acquisition Report required under this section shall be submitted in unclassified form without any designation relating to dissemination control, but may contain a classified annex.

(j) Termination.—The requirements under this section shall terminate after the final submission covering fiscal year 2023.

Editorial Notes

Codification

Pub. L. 116–283, §1849(a)–(l), which had initially directed the enactment of sections 4350 to 4358 of this title, the transfers of various subsections of section 2432 of this title to those new sections, and the subsequent repeal of section 2432, was amended by Pub. L. 117–81, §1701(o)(1)–(5), by revising subsecs. (a) to (d), striking out subsecs. (e) to (k), and redesignating subsec. (l) as (e). After that amendment, those enactments and transfers were no longer directed. Instead, Pub. L. 116–283, §1849(b), as amended by Pub. L. 117–81, directed the transfer of section 2432 of this title in its entirety to this section, thereby omitting what would have been sections 4350 and 4352 to 4358 of this title.

Pub. L. 99–591 is a corrected version of Pub. L. 99–500.

Amendments

2023—Subsec. (c)(1)(B)(iv). Pub. L. 118–31 substituted "subsection (e)(4)" for "section 4355(4) of this title".

2021—Pub. L. 116–283, §1849(b), as amended by Pub. L. 117–81, §1701(o)(1)(B), renumbered section 2432 of this title as this section. See Codification note above.

Subsec. (c)(1)(A). Pub. L. 116–283, §1849(c)(1), as amended by Pub. L. 117–81, §1701(o)(3), substituted "section 4205" for "section 2431".

Subsec. (c)(1)(B)(i). Pub. L. 116–283, §1849(c)(2), as amended by Pub. L. 117–81, §1701(o)(3), substituted "section 4371(a)(4)" for "section 2433(a)(2)".

Subsec. (c)(1)(B)(ii). Pub. L. 116–283, §1849(c)(3), as amended by Pub. L. 117–81, §1701(o)(3), substituted "section 4214(d)(1)" for "section 2435(d)(1)".

Subsec. (c)(1)(B)(iii). Pub. L. 116–283, §1849(c)(4), as amended by Pub. L. 117–81, §1701(o)(3), substituted "section 4214(d)(2)" for "section 2435(d)(2)".

Subsec. (c)(1)(B)(iv). Pub. L. 116–283, §1849(c)(5), as amended by Pub. L. 117–81, §1701(o)(3), substituted "section 4355(4)" for "section 2432(e)(4)".

Subsec. (c)(1)(G). Pub. L. 116–283, §1849(c)(6), as amended by Pub. L. 117–81, §1701(o)(3), substituted "section 4401" for "section 2446a".

Subsec. (h)(2)(A). Pub. L. 116–283, §1849(d), as amended by Pub. L. 117–81, §1701(o)(4), substituted "section 4205" for "section 2431".

Subsec. (j). Pub. L. 117–81, §805(a), substituted "fiscal year 2023" for "fiscal year 2021".

2019—Subsec. (b)(1). Pub. L. 116–92, §830(a)(1), inserted "and any program that is estimated by the Secretary of Defense to require an eventual total expenditure for research, development, test, and evaluation of more than $300,000,000 (based on fiscal year 1990 constant dollars) or an eventual total expenditure for procurement, including all planned increments or spirals, of more than $1,800,000,000 (based on fiscal year 1990 constant dollars)" after "major defense acquisition programs".

Subsecs. (i), (j). Pub. L. 116–92, §830(a)(2), added subsecs. (i) and (j).

2016—Subsec. (c)(1)(G), (H). Pub. L. 114–328, §805(b), added subpar. (G) and redesignated former subpar. (G) as (H).

Subsec. (f). Pub. L. 114–328, §841, substituted "30" for "45" before "days after the date".

2014—Subsec. (c)(1)(E). Pub. L. 113–291, §1071(g)(2), amended Pub. L. 113–66, §812(a)(3)(B). See 2013 Amendment note below.

2013—Subsec. (c)(1)(B) to (D). Pub. L. 113–66, §812(a)(2), added subpars. (B) to (D). Former subpars. (B) to (D) redesignated (E) to (G), respectively.

Subsec. (c)(1)(E). Pub. L. 113–66, §812(a)(3)(B), as amended by Pub. L. 113–291, §1071(g)(2), inserted "program acquisition cost and" after "current" the first place appearing.

Pub. L. 113–66, §812(a)(1), (3)(A), (C), (D), redesignated subpar. (B) as (E) and substituted "such program or subprogram" for "major defense acquisition program or designated major subprogram", "those costs" for "that cost", and "December 2001 reporting period" for "date the program or subprogram was first included in a Selected Acquisition Report".

Subsec. (c)(1)(F). Pub. L. 113–66, §812(a)(1), (4), redesignated subpar. (C) as (F) and substituted "such program or subprogram" for "major defense acquisition program or designated major subprogram" and "December 2001 reporting period" for "date the program or subprogram was first included in a Selected Acquisition Report".

Subsec. (c)(1)(G). Pub. L. 113–66, §812(a)(1), redesignated subpar. (D) as (G).

2011—Subsec. (f). Pub. L. 112–81 substituted "45 days after the date" for "60 days after the date".

2008—Subsec. (b)(2)(A). Pub. L. 110–417, §811(b)(1), inserted "for the program (or for each designated subprogram under the program)" after "procurement unit cost".

Subsec. (c)(1)(B). Pub. L. 110–417, §811(b)(2)(A), inserted "or designated major subprogram" after "for each major defense acquisition program" and "or subprogram" after "the program".

Subsec. (c)(1)(C). Pub. L. 110–417, §811(b)(2)(B), inserted "or designated major subprogram" after "major defense acquisition program" and "or subprogram" after "the program".

Subsec. (c)(3)(A). Pub. L. 110–417, §811(b)(2)(C), inserted "and each designated major subprogram" after "for each major defense acquisition program".

Subsec. (e)(3). Pub. L. 110–417, §811(b)(3)(A), inserted "for the program (or for each designated major subprogram under the program)" before period at end.

Subsec. (e)(5). Pub. L. 110–417, §811(b)(3)(B), inserted "(or for each designated major subprogram under the program)" before period at end.

Subsec. (e)(7). Pub. L. 110–417, §811(b)(3)(C), inserted "or subprogram" after "of the program" wherever appearing.

Subsec. (e)(8). Pub. L. 110–417, §811(b)(3)(D), inserted "and designated major subprograms under the program" after "the program".

Subsec. (g). Pub. L. 110–417, §811(b)(4), inserted "or designated major subprogram" after "major defense acquisition program" and "or subprogram" after "the program" wherever appearing.

Subsec. (h)(2)(C). Pub. L. 110–417, §811(b)(5), inserted "and designated major subprograms under the program" after "the development program".

2006—Subsec. (e)(7) to (9). Pub. L. 109–364 made technical correction to directory language of Pub. L. 108–375, §801(b)(2). See 2004 Amendment note below.

2004—Subsec. (e)(7) to (9). Pub. L. 108–375, §801(b)(2), as amended by Pub. L. 109–364, added par. (7) and redesignated former pars. (7) and (8) as (8) and (9), respectively.

2003—Subsec. (h)(1). Pub. L. 108–136 inserted "program" after "for such" in first sentence.

2001—Subsecs. (b)(3)(A)(i), (c)(3)(A), (h)(1). Pub. L. 107–107 substituted "system development and demonstration" for "engineering and manufacturing development" wherever appearing.

1999—Subsecs. (b)(3)(B), (c)(2), (h)(1). Pub. L. 106–65 substituted "and the Committee on Armed Services" for "and the Committee on National Security".

1997—Subsec. (h)(2)(D) to (F). Pub. L. 105–85 redesignated subpars. (E) and (F) as (D) and (E), respectively, and struck out former subpar. (D) which read as follows: "The completion status of the development program expressed—

"(i) as the percentage that the number of years for which funds have been appropriated for the development program is of the number of years for which it is planned that funds will be appropriated for the program; and

"(ii) as the percentage that the amount of funds that have been appropriated for the development program is of the total amount of funds which it is planned will be appropriated for the program."

1996—Subsec. (b)(3)(B). Pub. L. 104–106 substituted "Committee on Armed Services of the Senate and the Committee on National Security of the House of Representatives" for "Committees on Armed Services of the Senate and House of Representatives".

Subsec. (c)(1). Pub. L. 104–201, §806(1), struck out "and" at end of subpar. (B), added subpar. (C), and redesignated former subpar. (C) as (D).

Subsec. (c)(2). Pub. L. 104–106 substituted "Committee on Armed Services of the Senate and the Committee on National Security of the House of Representatives" for "Committees on Armed Services of the Senate and House of Representatives".

Subsec. (e)(8), (9). Pub. L. 104–201, §806(2), redesignated par. (9) as (8) and struck out former par. (8) which read as follows: "The completion status of the program (A) expressed as the percentage that the number of years for which funds have been appropriated for the program is of the number of years for which it is planned that funds will be appropriated for the program, and (B) expressed as the percentage that the amount of funds that have been appropriated for the program is of the total amount of funds which it is planned will be appropriated for the program."

Subsec. (h)(1). Pub. L. 104–106 substituted "Committee on Armed Services of the Senate and the Committee on National Security of the House of Representatives" for "Committees on Armed Services of the Senate and House of Representatives".

1994—Subsec. (a)(2). Pub. L. 103–355, §3002(a)(1), struck out "for a fiscal year, reduced by the amount of funds programmed to be available for obligation for such fiscal year for advanced procurement for such program in any subsequent year and increased by any amount appropriated in years before such fiscal year for advanced procurement for such program in such fiscal year" after "procurement for the program" in cl. (A), "with such funds during such fiscal year" after "procured" in cl. (B), and last sentence which read as follows: "If for any fiscal year the funds appropriated, or the number of fully-configured end items to be purchased, differ from those programmed, the procurement unit cost shall be revised to reflect the appropriated amounts and quantities."

Subsec. (a)(3). Pub. L. 103–355, §3002(b), inserted before period at end "and that is not a firm, fixed price contract".

Subsec. (a)(4). Pub. L. 103–355, §3002(c), substituted "means all costs of development, procurement, military construction, and operations and support, without regard to funding source or management control." for "has the meaning given the term 'cost of the program' in section 2434(b)(2) of this title."

Subsec. (b)(3)(A)(i). Pub. L. 103–355, §3002(h)(1), struck out "full scale development or" before "engineering".

Subsec. (c)(2). Pub. L. 103–355, §3002(d), substituted second sentence for former second sentence which read as follows: "The Secretary of Defense may approve changes in the content of the Selected Acquisition Report if the Secretary provides such Committees with written notification of such changes at least 60 days before the date of the report that incorporates the changes."

Subsec. (c)(3)(A). Pub. L. 103–355, §3002(f)(2), (h)(2), substituted "engineering and manufacturing" for "full-scale engineering" and inserted at end "The Secretary of Defense shall ensure that this subparagraph is implemented in a uniform manner, to the extent practicable, throughout the Department of Defense."

Subsec. (c)(3)(C). Pub. L. 103–355, §3002(e), struck out subpar. (C) which required production information for each major defense acquisition program included in report that is produced at rate of six units or more per year.

Subsec. (c)(5). Pub. L. 103–355, §3002(f)(1), struck out par. (5) which read as follows: "The Secretary of Defense shall ensure that paragraph (4) of subsection (a) is implemented in a uniform manner, to the extent practicable, throughout the Department of Defense."

Subsec. (f). Pub. L. 103–355, §3002(g), struck out last sentence which read as follows: "A preliminary report shall be submitted for each annual Selected Acquisition Report within 30 days of the date on which the President submits the Budget to Congress."

Subsec. (h)(1). Pub. L. 103–355, §3002(h)(3), substituted "engineering and manufacturing" for "full-scale engineering" in two places.

1992—Subsec. (a)(3). Pub. L. 102–484, §817(c)(1), added par. (3) and struck out former par. (3) which read as follows: "The term 'major contract', with respect to a major defense acquisition program, means (A) each prime contract under the program, and (B) each associate or Government-furnished equipment contract under the program that is one of the six largest contracts under the program in dollar amount and that is in excess of $40,000,000."

Subsec. (b)(3). Pub. L. 102–484, §817(c)(2), added par. (3) and struck out former par. (3) which read as follows: "A status report on a particular major defense acquisition program need not be included in any Selected Acquisition Report with the approval of the Committees on Armed Services of the Senate and House of Representatives."

Subsec. (c)(2). Pub. L. 102–484, §817(c)(3), added sentence at end and struck out former last sentence which read as follows: "A change in the content of the Selected Acquisition Report for the first quarter of a fiscal year from the content as reported for the first quarter of the previous fiscal year may not be made until appropriate officials of the Department of Defense consult with such Committees regarding the proposed changes."

Subsec. (c)(3)(C)(i) to (vii). Pub. L. 102–484, §817(c)(4), added cls. (i) to (vii) and struck out former cls. (i) to (vii) which contained similar specification and estimation requirements.

1991—Subsec. (a)(4). Pub. L. 102–190, §801(b)(2), substituted "2434(b)(2)" for "2434(c)(2)".

Subsec. (c)(5). Pub. L. 102–25 substituted "subsection (a)" for "section 2432(a) of title 10, United States Code, as added by subsection (a)(2),".

Subsec. (h)(2)(A). Pub. L. 102–190, §1061(a)(14), substituted "(b)(1) and (b)(3)" for "(c)(1) and (c)(3)".

1990—Subsec. (a)(4). Pub. L. 101–510, §1407(b), added par. (4).

Subsec. (c)(3). Pub. L. 101–510, §1484(f)(4)(A), substituted "include the following:" for "include—" in introductory provisions.

Subsec. (c)(3)(A). Pub. L. 101–510, §1407(a), amended subpar. (A) generally. Prior to amendment, subpar. (A) read as follows: "a full life-cycle cost analysis for each major defense acquisition program included in the report that—

"(i) is in the full-scale engineering development stage or has completed that stage; and

"(ii) was first included in a Selected Acquisition Report for a quarter after the first quarter of fiscal year 1985;".

Subsec. (c)(3)(B). Pub. L. 101–510, §1484(f)(4)(B), (C), substituted "If" for "if" and a period for "; and".

Subsec. (c)(3)(C). Pub. L. 101–510, §1484(f)(4)(B), (D), substituted "Production" for "production" and "program) the following:" for "program)—" in introductory provisions, "Specification" for "specification" in cls. (i) to (iv), "Estimation" for "estimation" in cls. (v) to (vii), a period for a semicolon in cls. (i) to (v), and a period for "; and" in cl. (vi).

Subsec. (c)(5). Pub. L. 101–510, §1407(c), added par. (5).

1989—Subsec. (b)(2)(A). Pub. L. 101–189 substituted "15 percent increase in program acquisition unit cost and current procurement unit cost" for "5 percent change in total program cost".

1987—Pub. L. 100–180, §1314(a)(1), made technical amendment to directory language of Pub. L. 99–433, §101(a)(5). See 1986 Amendment note below.

Subsec. (a). Pub. L. 100–26, §7(b)(3)(A), as amended by Pub. L. 100–180, §1233(a)(1), redesignated pars. (2) to (4) as (1) to (3), respectively, and struck out former par. (1) which defined "major defense acquisition program".

Pub. L. 100–26, §7(k)(2)(A), inserted "The term" after each par. designation and struck out uppercase letter of first word after first quotation marks in each par. and substituted lowercase letter.

Subsec. (a)(2). Pub. L. 100–26, §7(b)(3)(B), substituted "programmed" for "programed" wherever appearing.

1986—Pub. L. 99–433, §101(a)(5), as amended by Pub. L. 100–180, §1314(a)(1), renumbered section 139a of this title as section 2432.

Pub. L. 99–433, §110(d)(13), struck out "Oversight of cost growth in major programs:" before "Selected Acquisition Reports" in section catchline.

Subsec. (a)(3). Pub. L. 99–500 and Pub. L. 99–591, §101(c) [§961(a)(1)], Pub. L. 99–661, §961(a)(1), amended par. (3) identically, inserting provision that if for any fiscal year the funds appropriated, or the number of fully-configured end items to be purchased, differ from those programmed, the procurement unit cost shall be revised to reflect the appropriated amounts and quantities.

Subsec. (a)(4). Pub. L. 99–500 and Pub. L. 99–591, §101(c) [§961(a)(2)], Pub. L. 99–661, §961(a)(2), amended par. (4) identically, substituting "$40,000,000" for "$2,000,000".

Subsec. (b)(2)(B). Pub. L. 99–500 and Pub. L. 99–591, §101(c) [§961(a)(3)], Pub. L. 99–661, §961(a)(3), amended subpar. (B) identically, substituting "six-month" for "three-month".

Subsec. (c)(1). Pub. L. 99–433, §110(g)(7), substituted "section 2431" for "section 139".

Subsec. (c)(2). Pub. L. 99–500 and Pub. L. 99–591, §101(c) [§961(a)(4)], Pub. L. 99–661, §961(a)(4), amended subsec. (c) identically, enacting a new par. (2) and striking out former par. (2) which read as follows: "Each Selected Acquisition Report for the first quarter of a fiscal year shall be prepared and submitted with the same content as was used for the Selected Acquisition Report for the first quarter of fiscal year 1984."

Subsec. (c)(3)(C). Pub. L. 99–500 and Pub. L. 99–591, §101(c) [§961(a)(5)], Pub. L. 99–661, §961(a)(5), amended subpar. (C) identically, inserting in provision preceding cl. (i) "that is produced at a rate of six units or more per year" after "report".

Subsec. (h). Pub. L. 99–500 and Pub. L. 99–591, §101(c) [§961(a)(6)], Pub. L. 99–661, §961(a)(6), amended section identically, adding subsec. (h).

1985—Subsec. (c). Pub. L. 99–145 amended subsec. (c) generally. Prior to amendment, subsec. (c) read as follows: "Each Selected Acquisition Report for the first quarter of a fiscal year shall include (1) the same information, in detailed and summarized form, as is provided in reports submitted under section 139 of this title, (2) the current program acquisition unit cost for each major defense acquisition program included in the report and the history of that cost from the date the program was first included in a Selected Acquisition Report to the end of the quarter for which the current report is submitted, and (3) such other information as the Secretary of Defense considers appropriate. Selected Acquisition Reports for the first quarter of a fiscal year shall be known as comprehensive annual Selected Acquisition Reports."

1984—Subsec. (a)(3). Pub. L. 98–525, §1242(a)(1), substituted "funds programed to be available for obligation for procurement" for "procurement funds appropriated" and "of funds programed to be available for obligation" for "of funds appropriated".

Subsec. (a)(4). Pub. L. 98–525, §1242(a)(2), inserted "and that is in excess of $2,000,000".

Subsec. (b)(2). Pub. L. 98–525, §1242(a)(3), substituted "during the period since that report there has been— (A) less than a 5 percent change in total program cost; and (B) less than a three-month delay in any program schedule milestone shown in the Selected Acquisition Report" for "there has been no change in program cost, performance, or schedule since the most recent such report".

Subsec. (f). Pub. L. 98–525, §1242(a)(4), substituted: "60" for "30", "45" for "30, and "A preliminary report shall be submitted for each annual Selected Acquisition Report within 30 days of the date on which the President submits the Budget to Congress" for "If a preliminary report is submitted for the comprehensive annual Selected Acquisition Report in any year, the final report shall be submitted within 15 days after the submission of the preliminary report".

Subsec. (g). Pub. L. 98–525, §1242(a)(5), added subsec. (g).

Statutory Notes and Related Subsidiaries

Effective Date of 2021 Amendment

Effective Date of 2014 Amendment

Pub. L. 113–291, div. A, title X, §1071(g), Dec. 19, 2014, 128 Stat. 3511, provided that the amendment made by section 1071(g)(2) is effective as of Dec. 26, 2013, and as if included in Pub. L. 113–66 as enacted.

Effective Date of 2013 Amendment; Phase-In of Additional Information Requirements

Pub. L. 113–66, div. A, title VIII, §812(b), Dec. 26, 2013, 127 Stat. 807, provided that: "Section 2432(c)(1) of title 10, United States Code [now 10 U.S.C. 4351(c)(1)], as amended by subsection (a), shall apply to Selected Acquisition Reports after the date of the enactment of this Act [Dec. 26, 2013] as follows:

"(1) For the December 2014 reporting period, to Selected Acquisition Reports for five major defense acquisition programs or designated major subprograms, as determined by the Secretary.

"(2) For the December 2019 reporting period and each reporting period thereafter, to Selected Acquisition Reports for all major defense acquisition programs or designated major subprograms."

Effective Date of 2006 Amendment

Pub. L. 109–364, div. A, title X, §1071(g), Oct. 17, 2006, 120 Stat. 2402, provided that the amendment made by section 1071(g)(10) is effective as of Oct. 28, 2004, and as if included in Pub. L. 108–375 as enacted.

Effective Date of 2004 Amendment

Pub. L. 108–375, div. A, title VIII, §801(c), Oct. 28, 2004, 118 Stat. 2004, provided that: "The amendments made by this section [amending this section and former section 2433 of this title] shall take effect on the date occurring 60 days after the date of the enactment of this Act [Oct. 28, 2004], and shall apply with respect to reports due to be submitted to Congress on or after such date."

Effective Date of 1990 Amendment

Pub. L. 101–510, div. A, title XIV, §1407(d), Nov. 5, 1990, 104 Stat. 1681, as amended by Pub. L. 102–25, title VII, §704(a)(8), Apr. 6, 1991, 105 Stat. 119, provided that: "The amendments made by subsection (a) [amending this section] shall take effect with respect to Selected Acquisition Reports submitted under section 2432 of title 10, United States Code [now 10 U.S.C. 4351], after December 31, 1991."

Effective Date of 1987 Amendment

Amendment by section 1233(a)(1) of Pub. L. 100–180 applicable as if included in enactment of the Defense Technical Corrections Act of 1987, Pub. L. 100–26, see section 1233(c) of Pub. L. 100–180, set out as a note under section 101 of this title.

Amendment by section 1314(a)(1) of Pub. L. 100–180 applicable as if included in enactment of the Goldwater-Nichols Department of Defense Reorganization Act of 1986, Pub. L. 99–433, see section 1314(e) of Pub. L. 100–180, set out as a note under section 743 of this title.

Effective Date of 1986 Amendment

Pub. L. 99–500, §101(c) [title X, §961(c)], Oct. 18, 1986, 100 Stat. 1783–82, 1783-176, Pub. L. 99–591, §101(c) [title X, §961(c)], Oct. 30, 1986, 100 Stat. 3341–82, 3341-176, and Pub. L. 99–661, div. A, title IX, formerly title IV, §961(c), Nov. 14, 1986, 100 Stat. 3956, renumbered title IX, Pub. L. 100–26, §3(5), Apr. 21, 1987, 101 Stat. 273, provided that: "The amendments made by subsections (a) and (b) [amending this section and former section 2433 of this title] shall take effect on January 1, 1987."

Effective Date

Pub. L. 97–252, title XI, §1107(c), Sept. 8, 1982, 96 Stat. 746, provided that: "Sections 139a [now 10 U.S.C. 4351] and 139b [see 10 U.S.C. 4371 to 4375] of title 10, United States Code, as added by subsection (a), shall take effect on January 1, 1983, and shall apply beginning with respect to reports for the first quarter of fiscal year 1983. The repeal made by subsection (b) [repealing section 811 of Pub. L. 94–106, formerly set out as a Reports to Congress of Acquisitions for Major Defense Systems note under section 2431 of this title] shall take effect on January 1, 1983."

Acquisition Reporting System

Pub. L. 117–263, div. A, title VIII, §809(a), (b), Dec. 23, 2022, 136 Stat. 2705, provided that:

"(a) In General.—The Secretary of Defense shall institute a defense acquisition reporting system to replace the requirements of section 4351 of title 10, United States Code, as soon as practicable but not later than June 30, 2023.

"(b) Elements.—The reporting system required under subsection (a) shall—

"(1) produce the information necessary to carry out the actions specified in chapter 325 of title 10, United States Code;

"(2) produce the information necessary to carry out the actions specified in sections 4217 and 4311 of the Atomic Energy Defense Act (50 U.S.C. 2537, 2577);

"(3) incorporate—

"(A) the lessons learned from the demonstration carried out under subsection (b) of section 805 of the National Defense Authorization Act for Fiscal Year 2022 (Public Law 117–81; 135 Stat. 1816); and

"(B) the plans required under subsection (c) of such section (Public Law 117–81; 135 Stat. 1817);

"(4) provide the congressional defense committees [Committees on Armed Services and Appropriations of the Senate and the House of Representatives] and other designated Government entities with access to acquisition reporting that is updated on a not less than quarterly basis; and

"(5) include such other information and functions as the Secretary of Defense determines appropriate to support the acquisition reporting needs of the Department of Defense."

Termination of Reporting Requirements

For termination, effective Dec. 31, 2021, of provisions in this section requiring submittal of reports to Congress, see section 1051(x) of Pub. L. 115–91, set out as a note under section 111 of this title.

Annual Reporting

Pub. L. 114–328, div. A, title VIII, §847(b), Dec. 23, 2016, 130 Stat. 2292, provided that: "The Secretary of Defense shall include in each comprehensive annual Selected Acquisition Report submitted under section 2432 of title 10, United States Code [now 10 U.S.C. 4351], a listing of all programs or projects being developed or procured under the exceptions to the definition of major defense acquisition program set forth in paragraph (2) of section 2430(a) of [title 10,] United States Code [now 10 U.S.C. 4201(b)], as added by subsection (a)(1)(C) of this section."

Selected Acquisition Reports for Certain Programs

Pub. L. 100–180, div. A, title I, §127, Dec. 4, 1987, 101 Stat. 1044, as amended by Pub. L. 102–484, div. A, title VIII, §817(a), Oct. 23, 1992, 106 Stat. 2454, provided that:

"(a) SAR Coverage for ATB, ACM, and ATA Programs.—The Secretary of Defense shall submit to the Committees on Armed Services of the Senate and House of Representatives, in accordance with the provisions of subsection (b) of section 2432 of title 10, United States Code [now 10 U.S.C. 4351(b)], a Selected Acquisition Report with respect to each program referred to in subsection (b), notwithstanding that such a report would not otherwise be required under section 2432 of title 10, United States Code [now 10 U.S.C. 4351].

"(b) Covered Programs.—Subsection (a) applies to the Advanced Technology Bomber program, the Advanced Cruise Missile program, and the Advanced Tactical Aircraft program.

"(c) Selected Acquisition Report Defined.—As used in subsection (a), the term 'Selected Acquisition Report' means a report containing the information referred to in section 2432 of title 10, United States Code [now 10 U.S.C. 4351]."

[§§4352 to 4358. Omitted]

Editorial Notes

Codification

See Codification note set out under section 4351 of this title.

CHAPTER 325—COST GROWTH—UNIT COST REPORTS (NUNN-MCCURDY)

Sec.

4371.

Cost growth definitions; applicability of reporting requirements; constant base year dollars.

4372.

Unit cost reports: quarterly report from program manager to service acquisition executive.

4373.

Unit cost reports: immediate report from program manager to service acquisition executive upon breach of significant cost growth threshold.

4374.

Unit cost reports: determinations by service acquisition executive and secretary concerned of breach of significant cost growth threshold or critical cost growth threshold; reports to Congress.

4375.

Breach of significant cost growth threshold or critical cost growth threshold: required action.

4376.

Breach of critical cost growth threshold: reassessment of program; presumption of program termination.

4377.

Breach of critical cost growth threshold: actions if program not terminated.

Editorial Notes

Prior Provisions

A prior chapter 325 "DEPARTMENT OF DEFENSE LABORATORIES", consisting of reserved section 4351, was repealed by Pub. L. 116–283, div. A, title XVIII, §1841(a)(1)(A), Jan. 1, 2021, 134 Stat. 4242.

§4371. Cost growth definitions; applicability of reporting requirements; constant base year dollars

(a) Definitions.—In this chapter:

(1) Program acquisition unit cost; procurement unit cost; major contract.—Except as provided in section 4203(d) of this title, the terms "program acquisition unit cost", "procurement unit cost", and "major contract" have the same meanings as provided in section 4351(a) of this title.

(2) Significant cost growth threshold.—The term "significant cost growth threshold" means the following:

(A) In the case of a major defense acquisition program or designated major defense subprogram, a percentage increase in the program acquisition unit cost for the program or subprogram of—

(i) at least 15 percent over the program acquisition unit cost for the program or subprogram as shown in the current Baseline Estimate for the program or subprogram; or

(ii) at least 30 percent over the program acquisition unit cost for the program or subprogram as shown in the original Baseline Estimate for the program or subprogram.

(B) In the case of a major defense acquisition program or designated major defense subprogram that is a procurement program, a percentage increase in the procurement unit cost for the program or subprogram of—

(i) at least 15 percent over the procurement unit cost for the program or subprogram as shown in the current Baseline Estimate for the program or subprogram; or

(ii) at least 30 percent over the procurement unit cost for the program or subprogram as shown in the original Baseline Estimate for the program or subprogram.

(3) Critical cost growth threshold.—The term "critical cost growth threshold" means the following:

(A) In the case of a major defense acquisition program or designated major defense subprogram, a percentage increase in the program acquisition unit cost for the program or subprogram of—

(i) at least 25 percent over the program acquisition unit cost for the program or subprogram as shown in the current Baseline Estimate for the program or subprogram; or

(ii) at least 50 percent over the program acquisition unit cost for the program or subprogram as shown in the original Baseline Estimate for the program or subprogram.

(i) at least 25 percent over the procurement unit cost for the program or subprogram as shown in the current Baseline Estimate for the program or subprogram; or

(ii) at least 50 percent over the procurement unit cost for the program or subprogram as shown in the original Baseline Estimate for the program or subprogram.

(4) Baseline estimate.—The term "Baseline Estimate", with respect to a unit cost report that is submitted under this chapter to the service acquisition executive designated by the Secretary concerned on a major defense acquisition program or designated major subprogram, means the cost estimate included in the baseline description for the program or subprogram under section 4214 of this title.

(5) Original baseline estimate.—The term "original Baseline Estimate" has the same meaning as provided in section 4214(d) of this title.

(6) Procurement program.—The term "procurement program" means a program for which funds for procurement are authorized to be appropriated in a fiscal year.

(b) Reporting under this chapter shall not apply if a program has received a limited reporting waiver under section 4351(h) of this title.

(c) Any determination of a percentage increase under this chapter shall be stated in terms of constant base year dollars (as described in section 4202 of this title).

(Added and amended Pub. L. 116–283, div. A, title XVIII, §1850(a)–(d), Jan. 1, 2021, 134 Stat. 4265, 4266; Pub. L. 117–81, div. A, title XVII, §1701(o)(6)(E)(i), (ii), Dec. 27, 2021, 135 Stat. 2147, 2148.)

Editorial Notes

Codification

The text of subsec. (a) of section 2433 of this title, which was transferred to this section and amended by Pub. L. 116–283, §1850(b)(1), was based on Pub. L. 97–252, title XI, §1107(a)(1), Sept. 8, 1982, 96 Stat. 741, §139b; Pub. L. 98–525, title XII, §1242(b)(1), Oct. 19, 1984, 98 Stat. 2607; renumbered §2433 and amended Pub. L. 99–433, title I, §§101(a)(5), 110(g)(8)(A), Oct. 1, 1986, 100 Stat. 995, 1004; Pub. L. 100–26, §7(b)(4), (k)(7), Apr. 21, 1987, 101 Stat. 279, 284; Pub. L. 100–180, div. A, title XIII, §1314(a)(1), Dec. 4, 1987, 101 Stat. 1175; Pub. L. 101–189, div. A, title VIII, §811(a)(1), Nov. 29, 1989, 103 Stat. 1490; Pub. L. 102–484, div. A, title VIII, §817(d)(1), Oct. 23, 1992, 106 Stat. 2456; Pub. L. 103–355, title III, §3003(a)(1), Oct. 13, 1994, 108 Stat. 3329; Pub. L. 109–163, div. A, title VIII, §802(a), (d)(2), Jan. 6, 2006, 119 Stat. 3367, 3370; Pub. L. 110–417, [div. A], title VIII, §811(c)(1), Oct. 14, 2008, 122 Stat. 4522; Pub. L. 111–383, div. A, title X, §1075(b)(34), Jan. 7, 2011, 124 Stat. 4371.

The text of subsec. (f) of section 2433 of this title, which was transferred to this section, redesignated subsec. (c) and amended by Pub. L. 116–283, §1850(d), was based on Pub. L. 97–252, title XI, §1107(a)(1), Sept. 8, 1982, 96 Stat. 741, §139b; renumbered §2433, Pub. L. 99–433, title I, §101(a)(5), Oct. 1, 1986, 100 Stat. 995; Pub. L. 103–355, title III, §3003(d), Oct. 13, 1994, 108 Stat. 3329.

The text of subsec. (h) of section 2433 of this title, which was transferred to this section, redesignated subsec. (b) and amended by Pub. L. 116–283, §1850(c), was based on Pub. L. 99–500, §101(c) [title X, §961(b)(2)], Oct. 18, 1986, 100 Stat. 1783–82, 1783-176, and Pub. L. 99–591, §101(c) [title X, §961(b)(2)], Oct. 30, 1986, 100 Stat. 3341–82, 3341-176; Pub. L. 99–661, div. A, title IX, formerly title IV, §961(b)(2), Nov. 14, 1986, 100 Stat. 3956, renumbered title IX, Pub. L. 100–26, §3(5), Apr. 21, 1987, 101 Stat. 273.

Amendments

2021—Subsec. (a). Pub. L. 116–283, §1850(b)(2), inserted subsec. heading and headings in pars. (1) to (6).

Pub. L. 116–283, §1850(b)(1), transferred subsec. (a) of section 2433 of this title to this section and substituted "this chapter" for "this section" in introductory provisions and par. (2).

Subsec. (a)(1). Pub. L. 116–283, §1850(b)(3)(A), as amended by Pub. L. 117–81, §1701(o)(6)(E)(i), substituted "section 4203(d)" for "section 2430a(d)" and "section 4351(a)" for "section 2432(a)".

Subsec. (a)(2). Pub. L. 116–283, §1850(b)(4), redesignated par. (4) as (2) and transferred it to appear in numerical order. Former par. (2) redesignated (4).

Pub. L. 116–283, §1850(b)(3)(B), substituted "section 4214" for "section 2435".

Subsec. (a)(3) to (5). Pub. L. 116–283, §1850(b)(4), redesignated pars. (5), (2), and (6) as (3) to (5), respectively, and transferred them to appear in numerical order. Former pars. (3) and (4) redesignated pars. (6) and (2), respectively.

Subsec. (a)(6). Pub. L. 116–283, §1850(b)(4), redesignated par. (3) as (6) and transferred it to appear in numerical order. Former par. (6) redesignated (5).

Pub. L. 116–283, §1850(b)(3)(C), substituted "section 4214(d)" for "section 2435(d)".

Subsec. (b). Pub. L. 116–283, §1850(c), as amended by Pub. L. 117–81, §1701(o)(6)(E)(ii), transferred subsec. (h) of section 2433 of this title to this section, redesignated it as subsec. (b), and substituted "under this chapter" for "under this section" and "section 4351(h)" for "section 2432(h)".

Subsec. (c). Pub. L. 116–283, §1850(d), transferred subsec. (f) of section 2433 of this title to this section, redesignated it as subsec. (c), and substituted "under this chapter" for "under this section" and "section 4202" for "section 2430".

Statutory Notes and Related Subsidiaries

Effective Date of 2021 Amendment

Effective Date

§4372. Unit cost reports: quarterly report from program manager to service acquisition executive

(a) Required Reports.—

(1) Requirement.—The program manager for a major defense acquisition program (other than a program not required to be included in the Selected Acquisition Report for that quarter under section 4351(b)(3) of this title) shall, on a quarterly basis, submit to the service acquisition executive designated by the Secretary concerned a written report on the unit costs of the program (or of each designated major subprogram under the program).

(2) Time for submittal.—Each report shall be submitted not more than 30 calendar days after the end of that quarter.

(b) Matter to Be Included in Unit Cost Reports.—The program manager shall include in each such unit cost report the following information with respect to the program (as of the last day of the quarter for which the report is made):

(1) The program acquisition unit cost for the program (or for each designated major subprogram under the program).

(2) In the case of a procurement program, the procurement unit cost for the program (or for each designated major subprogram under the program).

(3) Any cost variance or schedule variance in a major contract under the program since the contract was entered into.

(4) Any changes from program schedule milestones or program performances reflected in the baseline description established under section 4214 of this title that are known, expected, or anticipated by the program manager.

(5) Any significant changes in the total program cost for development and procurement of the software component of the program or subprogram, schedule milestones for the software component of the program or subprogram, or expected performance for the software component of the program or subprogram that are known, expected, or anticipated by the program manager.

(Added and amended Pub. L. 116–283, div. A, title XVIII, §1850(a), (e), Jan. 1, 2021, 134 Stat. 4265, 4266; Pub. L. 117–81, div. A, title XVII, §1701(b)(18), (o)(6)(E)(iii), Dec. 27, 2021, 135 Stat. 2135, 2148.)

Editorial Notes

Codification

The text of subsec. (b) of section 2433 of this title, which was transferred to this section and redesignated as subsec. (a) by Pub. L. 116–283, §1850(e)(1), was based on Pub. L. 97–252, title XI, §1107(a)(1), Sept. 8, 1982, 96 Stat. 741, §139b; Pub. L. 98–525, title XII, §1242(b)(2), Oct. 19, 1984, 98 Stat. 2607; renumbered §2433 and amended Pub. L. 99–433, title I, §§101(a)(5), 110(g)(8)(B), Oct. 1, 1986, 100 Stat. 995, 1004; Pub. L. 99–500, §101(c) [title X, §961(b)(1)], Oct. 18, 1986, 100 Stat. 1783–82, 1783-176, and Pub. L. 99–591, §101(c) [title X, §961(b)(1)], Oct. 30, 1986, 100 Stat. 3341–82, 3341-176; Pub. L. 99–661, div. A, title IX, formerly title IV, §961(b)(1), Nov. 14, 1986, 100 Stat. 3956, renumbered title IX, Pub. L. 100–26, §3(5), Apr. 21, 1987, 101 Stat. 273; Pub. L. 100–180, div. A, title XIII, §1314(a)(1), Dec. 4, 1987, 101 Stat. 1175; Pub. L. 101–189, div. A, title VIII, §811(a)(2), Nov. 29, 1989, 103 Stat. 1490; Pub. L. 102–484, div. A, title VIII, §817(d)(2), Oct. 23, 1992, 106 Stat. 2456; Pub. L. 103–355, title III, §3003(b), Oct. 13, 1994, 108 Stat. 3329; Pub. L. 108–375, div. A, title VIII, §801(a), Oct. 28, 2004, 118 Stat. 2004; Pub. L. 110–417, [div. A], title VIII, §811(c)(2), Oct. 14, 2008, 122 Stat. 4522.

Amendments

2021—Subsec. (a). Pub. L. 116–283, §1850(e)(3), designated first and second sentences as pars. (1) and (2), respectively, and inserted subsec. and par. headings.

Pub. L. 116–283, §1850(e)(2), as amended by Pub. L. 117–81, §1701(b)(18), designated third sentence of subsec. (a) as (b).

Pub. L. 116–283, §1850(e)(1), transferred subsec. (b) of section 2433 of this title to this section and redesignated it as subsec. (a).

Subsec. (a)(1). Pub. L. 116–283, §1850(e)(4)(A), as amended by Pub. L. 117–81, §1701(o)(6)(E)(iii), substituted "section 4351(b)(3)" for "section 2432(b)(3)".

Subsec. (b). Pub. L. 116–283, §1850(e)(2), as amended by Pub. L. 117–81, §1701(b)(18), designated third sentence of subsec. (a) as (b) and inserted heading.

Subsec. (b)(4). Pub. L. 116–283, §1850(e)(4)(B), substituted "section 4214" for "section 2435".

Statutory Notes and Related Subsidiaries

Effective Date of 2021 Amendment

Effective Date

§4373. Unit cost reports: immediate report from program manager to service acquisition executive upon breach of significant cost growth threshold

If the program manager of a major defense acquisition program for which a unit cost report has previously been submitted under section 4372 of this title determines at any time during a quarter that there is reasonable cause to believe that the program acquisition unit cost for the program (or for a designated major subprogram under the program) or the procurement unit cost for the program (or for such a subprogram), as applicable, has increased by a percentage equal to or greater than the significant cost growth threshold; and if a unit cost report indicating an increase of such percentage or more has not previously been submitted to the service acquisition executive designated by the Secretary concerned, then the program manager shall immediately submit to such service acquisition executive a unit cost report containing the information, determined as of the date of the report, required under section 4372 of this title.

(Added and amended Pub. L. 116–283, div. A, title XVIII, §1850(a), (f), Jan. 1, 2021, 134 Stat. 4265, 4266.)

Editorial Notes

Codification

The text of subsec. (c) of section 2433 of this title, which was transferred to this section and amended by Pub. L. 116–283, §1850(f), was based on Pub. L. 97–252, title XI, §1107(a)(1), Sept. 8, 1982, 96 Stat. 741, §139b; Pub. L. 98–525, title XII, §1242(b)(3), Oct. 19, 1984, 98 Stat. 2608; renumbered §2433, Pub. L. 99–433, title I, §101(a)(5), Oct. 1, 1986, 100 Stat. 995; Pub. L. 100–180, div. A, title XIII, §1314(a)(1), Dec. 4, 1987, 101 Stat. 1175; Pub. L. 101–189, div. A, title VIII, §811(a)(3), Nov. 29, 1989, 103 Stat. 1490; Pub. L. 101–510, div. A, title XIV, §1484(k)(10), Nov. 5, 1990, 104 Stat. 1719; Pub. L. 102–484, div. A, title VIII, §817(d)(3), Oct. 23, 1992, 106 Stat. 2457; Pub. L. 103–355, title III, §§3002(a)(2)(A), 3003(a)(2)(A), (c), Oct. 13, 1994, 108 Stat. 3328, 3329; Pub. L. 105–85, div. A, title VIII, §833(a), (b), Nov. 18, 1997, 111 Stat. 1842, 1843; Pub. L. 109–163, div. A, title VIII, §802(b)(1), Jan. 6, 2006, 119 Stat. 3368; Pub. L. 110–417, [div. A], title VIII, §811(c)(3), Oct. 14, 2008, 122 Stat. 4522.

Amendments

2021—Pub. L. 116–283, §1850(f), transferred subsec. (c) of section 2433 of this title to this section, struck out subsec. designation, and substituted "section 4372 of this title" for "subsection (b)" in two places.

Statutory Notes and Related Subsidiaries

Effective Date

§4374. Unit cost reports: determinations by service acquisition executive and secretary concerned of breach of significant cost growth threshold or critical cost growth threshold; reports to Congress

(a) Determination of Breach by Service Acquisition Executive.—When a unit cost report is submitted to the service acquisition executive designated by the Secretary concerned under this chapter with respect to a major defense acquisition program or any designated major subprogram under the program, the service acquisition executive shall determine whether the current program acquisition unit cost for the program or subprogram has increased by a percentage equal to or greater than the significant cost growth threshold, or the critical cost growth threshold, for the program or subprogram.

(b) Additional Determination by Service Acquisition Executive When Program or Subprogram Is a Procurement Program.—When a unit cost report is submitted to the service acquisition executive designated by the Secretary concerned under this chapter with respect to a major defense acquisition program or any designated major subprogram under the program that is a procurement program, the service acquisition executive, in addition to the determination under subsection (a), shall determine whether the procurement unit cost for the program or subprogram has increased by a percentage equal to or greater than the significant cost growth threshold, or the critical cost growth threshold, for the program or subprogram.

(1) In general.—If, based upon the service acquisition executive's determination, the Secretary concerned determines that the current program acquisition unit cost has increased by a percentage equal to or greater than the significant cost growth threshold or critical cost growth threshold or that the procurement unit cost has increased by a percentage equal to or greater than the significant cost growth threshold or critical cost growth threshold, the Secretary shall notify Congress in writing of such determination and of the increase with respect to the program or subprogram concerned.

(2) Time for submission of notification to congress.—In the case of a determination based on a quarterly report submitted in accordance with section 4372 of this title, the Secretary shall submit the notification to Congress within 45 days after the end of the quarter. In the case of a determination based on a report submitted in accordance with section 4373 of this title, the Secretary shall submit the notification to Congress within 45 days after the date of that report.

(3) Inclusion of date of determination.—The Secretary shall include in the notification the date on which the determination was made.

(Added and amended Pub. L. 116–283, div. A, title XVIII, §1850(a), (g), Jan. 1, 2021, 134 Stat. 4265, 4267.)

Editorial Notes

Codification

The text of subsec. (d) of section 2433 of this title, which was transferred to this section and amended by Pub. L. 116–283, §1850(g)(1), was based on Pub. L. 97–252, title XI, §1107(a)(1), Sept. 8, 1982, 96 Stat. 741, §139b; Pub. L. 98–525, title XII, §1242(b)(4), Oct. 19, 1984, 98 Stat. 2608; Pub. L. 99–145, title XIII, §1303(a)(2), Nov. 8, 1985, 99 Stat. 738; renumbered §2433, Pub. L. 99–433, title I, §101(a)(5), Oct. 1, 1986, 100 Stat. 995; Pub. L. 100–180, div. A, title XIII, §1314(a)(1), Dec. 4, 1987, 101 Stat. 1175; Pub. L. 101–189, div. A, title VIII, §811(a)(4), Nov. 29, 1989, 103 Stat. 1491; Pub. L. 102–484, div. A, title VIII, §817(d)(4), Oct. 23, 1992, 106 Stat. 2457; Pub. L. 103–355, title III, §§3002(a)(2)(B), 3003(a)(2)(B), Oct. 13, 1994, 108 Stat. 3328, 3329; Pub. L. 105–85, div. A, title VIII, §833(c), Nov. 18, 1997, 111 Stat. 1843; Pub. L. 109–163, div. A, title VIII, §802(b)(2), Jan. 6, 2006, 119 Stat. 3368; Pub. L. 110–417, [div. A], title VIII, §811(c)(4), Oct. 14, 2008, 122 Stat. 4523.

Amendments

2021—Pub. L. 116–283, §1850(g)(1), transferred subsec. (d) of section 2433 of this title to this section, struck out subsec. designation, and redesignated pars. (1) to (3) as subsecs. (a) to (c), respectively.

Subsec. (a). Pub. L. 116–283, §1850(g)(2), inserted heading and substituted "under this chapter" for "under this section".

Subsec. (b). Pub. L. 116–283, §1850(g)(3), inserted heading and substituted "under this chapter" for "under this section" and "subsection (a)" for "paragraph (1)".

Subsec. (c). Pub. L. 116–283, §1850(g)(4)(B), which directed amendment of subsec. (c) by designating second sentence as par. (2) and fourth sentence as par. (3), was executed by designating second and third sentences as par. (2) and fourth sentence as par. (3) to reflect the probable intent of Congress.

Pub. L. 116–283, §1850(g)(4)(A), inserted subsec. heading, designated first sentence as par. (1) and inserted par. heading.

Subsec. (c)(2). Pub. L. 116–283, §1850(g)(4)(C), inserted heading and substituted "section 4372 of this title" for "subsection (b)" and "section 4373 of this title" for "subsection (c)".

Subsec. (c)(3). Pub. L. 116–283, §1850(g)(4)(D), inserted heading.

Statutory Notes and Related Subsidiaries

Effective Date

§4375. Breach of significant cost growth threshold or critical cost growth threshold: required action

(a) Breach of significant cost growth threshold; submission of a selected acquisition report.—

(1) General rule.—Except as provided in paragraph (2), whenever the Secretary concerned determines under section 4374 of this title that the program acquisition unit cost or the procurement unit cost of a major defense acquisition program or designated major subprogram has increased by a percentage equal to or greater than the significant cost growth threshold for the program or subprogram, a Selected Acquisition Report shall be submitted to Congress for the first fiscal-year quarter ending on or after the date of the determination or for the fiscal-year quarter which immediately precedes the first fiscal-year quarter ending on or after that date. The report shall include the information described in section 4351(e) of this title and shall be submitted in accordance with section 4351(f) of this title.

(2) Whenever the Secretary makes a determination referred to in paragraph (1) in the case of a major defense acquisition program or designated major subprogram during the second quarter of a fiscal year and before the date on which the President transmits the budget for the following fiscal year to Congress pursuant to section 1105 of title 31, the Secretary is not required to file a Selected Acquisition Report under paragraph (1) but shall include the information described in subsection (d) regarding that program or subprogram in the comprehensive annual Selected Acquisition Report submitted in that quarter.

(b) Breach of Critical Cost Growth Threshold.—If the program acquisition unit cost or procurement unit cost of a major defense acquisition program or designated major subprogram (as determined by the Secretary under section 4374 of this title) increases by a percentage equal to or greater than the critical cost growth threshold for the program or subprogram, the Secretary of Defense shall take actions consistent with the requirements of sections 4376 and 4377 of this title.

(1) Prohibition.—If a determination of an increase by a percentage equal to or greater than the significant cost growth threshold is made by the Secretary under section 4374 of this title and a Selected Acquisition Report containing the information described in subsection (d) is not submitted to Congress under subsection (a), or if a determination of an increase by a percentage equal to or greater than the critical cost growth threshold is made by the Secretary under section 4374 of this title and the certification of the Secretary of Defense is not submitted to Congress under subsection (b), funds appropriated for military construction, for research, development, test, and evaluation, and for procurement may not be obligated for a major contract under the program.

(2) Termination of prohibition.—The prohibition under paragraph (1) on the obligation of funds for a major defense acquisition program shall cease to apply at the end of a period of 30 days of continuous session of Congress (as determined under section 8677(b)(2) of this title) beginning on the date—

(A) on which Congress receives the Selected Acquisition Report under subsection (a) with respect to that program, in the case of a determination of an increase by a percentage equal to or greater than the significant cost growth threshold (as determined in section 4374 of this title); or

(B) on which Congress has received both the Selected Acquisition Report under subsection (a) and the certification of the Secretary of Defense under section 4376 with respect to that program, in the case of an increase by a percentage equal to or greater than the critical cost growth threshold (as determined under section 4374 of this title).

(d) Matter to Be Included in Reports.—Except as provided in subsection (e), each report under this section with respect to a major defense acquisition program shall include the following:

(1) The name of the major defense acquisition program.

(2) The date of the preparation of the report.

(3) The program phase as of the date of the preparation of the report.

(4) The estimate of the program acquisition cost for the program (and for each designated major subprogram under the program) as shown in the Selected Acquisition Report in which the program or subprogram was first included, expressed in constant base-year dollars and in current dollars.

(5) The current program acquisition cost for the program (and for each designated major subprogram under the program) in constant base-year dollars and in current dollars.

(6) A statement of the reasons for any increase in program acquisition unit cost or procurement unit cost for the program (or for any designated major subprogram under the program).

(7) The completion status of the program and each designated major subprogram under the program—

(A) expressed as the percentage that the number of years for which funds have been appropriated for the program or subprogram is of the number of years for which it is planned that funds will be appropriated for the program or subprogram; and

(B) expressed as the percentage that the amount of funds that have been appropriated for the program or subprogram is of the total amount of funds which it is planned will be appropriated for the program or subprogram.

(8) The fiscal year in which information on the program and each designated major subprogram under the program was first included in a Selected Acquisition Report (referred to in this paragraph as the "base year") and the date of that Selected Acquisition Report in which information on the program or subprogram was first included.

(9) The type of the Baseline Estimate that was included in the baseline description under section 4214 of this title and the date of the Baseline Estimate.

(10) The current change and the total change, in dollars and expressed as a percentage, in the program acquisition unit cost for the program (or for each designated major subprogram under the program), stated both in constant base-year dollars and in current dollars.

(11) The current change and the total change, in dollars and expressed as a percentage, in the procurement unit cost for the program (or for each designated major subprogram under the program), stated both in constant base-year dollars and in current dollars and the procurement unit cost for the program (or for each designated major subprogram under the program) for the succeeding fiscal year expressed in constant base-year dollars and in current year dollars.

(12) The quantity of end items to be acquired under the program and the current change and total change, if any, in that quantity.

(13) The identities of the military and civilian officers responsible for program management and cost control of the program.

(14) The action taken and proposed to be taken to control future cost growth of the program.

(15) Any changes made in the performance or schedule milestones of the program and the extent to which such changes have contributed to the increase in program acquisition unit cost or procurement unit cost for the program (or for any designated major subprogram under the program).

(16) The following contract performance assessment information with respect to each major contract under the program or subprogram:

(A) The name of the contractor.

(B) The phase that the contract is in at the time of the preparation of the report.

(D) Any current change and the total change, in dollars and expressed as a percentage, in the contract cost.

(E) The percentage by which the contract is currently ahead of or behind schedule.

(F) A narrative providing a summary explanation of the most significant occurrences, including cost and schedule variances under major contracts of the program and any designated major subprogram under the program, contributing to the changes identified and a discussion of the effect these occurrences will have on future program costs and the program schedule.

(17) In any case in which one or more problems with the software component of the program or any designated major subprogram under the program significantly contributed to the increase in program unit costs, the action taken and proposed to be taken to solve such problems.

(e) Breach Due to Termination or Cancellation of Program or Subprogram.—

(1) Limited reporting.—If a program acquisition unit cost increase or a procurement unit cost increase for a major defense acquisition program or designated major subprogram that results in a report under this subsection is due to termination or cancellation of the entire program or subprogram, only the information specified in paragraphs (1) through (6) of subsection (d) and the percentage change in program acquisition unit cost or procurement unit cost that resulted in the report need be included in the report.

(2) Certification not required.—The certification of the Secretary of Defense under subsection (b) is not required to be submitted for termination or cancellation of a program or subprogram.

(Added and amended Pub. L. 116–283, div. A, title XVIII, §1850(a), (h), (i), Jan. 1, 2021, 134 Stat. 4265, 4267, 4269; Pub. L. 117–81, div. A, title XVII, §1701(c)(4), (d)(12), (o)(6)(E)(iv), Dec. 27, 2021, 135 Stat. 2136, 2137, 2148.)

Editorial Notes

Codification

The text of subsec. (e) of section 2433 of this title, which was transferred to this section, redesignated subsecs. (a) to (c), and amended by Pub. L. 116–283, §1850(h)(1), was based on Pub. L. 97–252, title XI, §1107(a)(1), Sept. 8, 1982, 96 Stat. 741, §139b; Pub. L. 98–525, title XII, §1242(b)(5), Oct. 19, 1984, 98 Stat. 2608; renumbered §2433, Pub. L. 99–433, title I, §101(a)(5), Oct. 1, 1986, 100 Stat. 995; Pub. L. 100–180, div. A, title XIII, §1314(a)(1), Dec. 4, 1987, 101 Stat. 1175; Pub. L. 101–189, div. A, title VIII, §811(a)(5), Nov. 29, 1989, 103 Stat. 1491; Pub. L. 102–484, div. A, title VIII, §817(d)(5), Oct. 23, 1992, 106 Stat. 2457; Pub. L. 103–35, title II, §201(i)(2), May 31, 1993, 107 Stat. 100; Pub. L. 103–355, title III, §3002(a)(2)(C), Oct. 13, 1994, 108 Stat. 3328; Pub. L. 109–163, div. A, title VIII, §802(b)(3), (c), Jan. 6, 2006, 119 Stat. 3369; Pub. L. 109–364, div. A, title II, §213(a), Oct. 17, 2006, 120 Stat. 2121; Pub. L. 110–181, div. A, title IX, §942(e), Jan. 28, 2008, 122 Stat. 288; Pub. L. 110–417, [div. A], title VIII, §811(c)(5), Oct. 14, 2008, 122 Stat. 4523; Pub. L. 111–23, title II, §206(a)(3), May 22, 2009, 123 Stat. 1728; Pub. L. 115–232, div. A, title VIII, §809(a), Aug. 13, 2018, 132 Stat. 1840.

The text of subsec. (g) of section 2433 of this title, which was transferred to this section, redesignated subsecs. (d) and (e), and amended by Pub. L. 116–283, §1850(i)(1), was based on Pub. L. 97–252, title XI, §1107(a)(1), Sept. 8, 1982, 96 Stat. 741, §139b; Pub. L. 98–94, title XII, §1268(1), Sept. 24, 1983, 97 Stat. 705; Pub. L. 98–525, title XII, §1242(b)(6), Oct. 19, 1984, 98 Stat. 2608; renumbered §2433, Pub. L. 99–433, title I, §101(a)(5), Oct. 1, 1986, 100 Stat. 995; Pub. L. 100–180, div. A, title XIII, §1314(a)(1), Dec. 4, 1987, 101 Stat. 1175; Pub. L. 101–189, div. A, title VIII, §811(a)(6), Nov. 29, 1989, 103 Stat. 1493; Pub. L. 103–355, title III, §3003(e), Oct. 13, 1994, 108 Stat. 3329; Pub. L. 108–375, div. A, title VIII, §801(b)(1), Oct. 28, 2004, 118 Stat. 2004; Pub. L. 110–417, [div. A], title VIII, §811(c)(6), Oct. 14, 2008, 122 Stat. 4523; Pub. L. 111–84, div. A, title X, §1073(c)(4), Oct. 28, 2009, 123 Stat. 2474.

Amendments

2021—Pub. L. 116–283, §1850(i)(1), transferred subsec. (g) of section 2433 of this title to this section, struck out subsec. designation, and redesignated pars. (1) and (2) as subsecs. (d) and (e), respectively.

Pub. L. 116–283, §1850(h)(1), transferred subsec. (e) of section 2433 of this title to this section, struck out subsec. designation, and redesignated pars. (1) to (3) as subsecs. (a) to (c), respectively.

Subsec. (a). Pub. L. 116–283, §1850(h)(2)(A), (B), inserted subsec. heading, redesignated subpars. (A) and (B) as pars. (1) and (2), respectively, inserted par. (1) heading, and substituted "Except as provided in paragraph (2)," for "Except as provided in subparagraph (B)," in par. (1).

Subsec. (a)(1). Pub. L. 116–283, §1850(h)(2)(C), as amended by Pub. L. 117–81, §1701(o)(6)(E)(iv), substituted "under section 4374 of this title" for "under subsection (d)", "section 4351(e)" for "section 2432(e)", and "section 4351(f)" for "section 2432(f)".

Subsec. (a)(2). Pub. L. 116–283, §1850(h)(2)(D), substituted "paragraph (1)" for "subparagraph (A)" in two places and "subsection (d)" for "subsection (g)".

Subsec. (b). Pub. L. 116–283, §1850(h)(3), inserted heading and substituted "section 4374 of this title" for "subsection (d)" and "sections 4376 and 4377" for "section 2433a".

Subsec. (c). Pub. L. 116–283, §1850(h)(4)(A), (B), inserted subsec. heading, designated first and second sentences as pars. (1) and (2), respectively, and inserted par. (1) heading.

Subsec. (c)(1). Pub. L. 116–283, §1850(h)(4)(C), substituted "section 4374 of this title" for "subsection (d)" in two places, "subsection (d)" for "subsection (g)", "subsection (a)" for "paragraph (1)", and "subsection (b)" for "paragraph (2)".

Subsec. (c)(2). Pub. L. 116–283, §1850(h)(4)(D)(i), inserted heading and substituted "The prohibition under paragraph (1)" for "The prohibition" in introductory provisions.

Subsec. (c)(2)(A). Pub. L. 117–81, §1701(d)(12)(A), struck out "or (b)(2)" after "subsection (a)".

Pub. L. 116–283, §1850(h)(4)(D)(ii), substituted "subsection (a) or (b)(2)" for "paragraph (1) or (2)(B)" and "section 4374 of this title" for "subsection (d)".

Subsec. (c)(2)(B). Pub. L. 117–81, §1701(d)(12)(B), struck out "or (b)(2)" after "subsection (a)" and substituted "section 4376" for "subsection (b)(1)".

Pub. L. 116–283, §1850(h)(4)(D)(iii), substituted "subsection (a) or (b)(2)" for "paragraph (1) or (2)(B)", "subsection (b)(1)" for "paragraph (2)(A)", and "section 4374 of this title" for "subsection (d)".

Subsec. (d). Pub. L. 116–283, §1850(i)(2)(A), (B), inserted heading, substituted "Except as provided in subsection (e), each report under this section" for "Except as provided in paragraph (2), each report under subsection (e)" in introductory provisions, and redesignated subpars. (A) to (Q) as pars. (1) to (17), respectively.

Subsec. (d)(7). Pub. L. 117–81, §1701(c)(4), substituted "under the program—

"(A) expressed as"

for "under the program (i) expressed as" and "or subprogram; and

"(B) expressed as"

for "or subprogram, and (ii) expressed as".

Subsec. (d)(9). Pub. L. 116–283, §1850(i)(2)(C), substituted "section 4214" for "section 2435".

Subsec. (d)(16). Pub. L. 116–283, §1850(i)(2)(D), redesignated cls. (i) to (vi) as subpars. (A) to (F), respectively.

Subsec. (e). Pub. L. 116–283, §1850(i)(3)(A)–(C), inserted subsec. heading, designated first and second sentences as pars. (1) and (2), respectively, inserted par. (1) heading, and, in par. (1), substituted "paragraphs (1) through (6) of subsection (d)" for "clauses (A) through (F) of paragraph (1)".

Subsec. (e)(2). Pub. L. 116–283, §1850(i)(3)(D), inserted heading and substituted "subsection (b)" for "subsection (e)".

Statutory Notes and Related Subsidiaries

Effective Date of 2021 Amendment

Amendment by section 1701(c)(4), (d)(12) of Pub. L. 117–81 to take effect immediately after the amendments made by title XVIII of Pub. L. 116–283 have taken effect, see section 1701(a)(3) of Pub. L. 117–81, set out in a note preceding section 3001 of this title and Effective Date note below.

Amendment by section 1701(o)(6)(E)(iv) of Pub. L. 117–81 applicable as if included in the enactment of title XVIII of Pub. L. 116–283 as enacted, see section 1701(a)(2) of Pub. L. 117–81, set out in a note preceding section 3001 of this title and Effective Date note below.

Effective Date

§4376. Breach of critical cost growth threshold: reassessment of program; presumption of program termination

(a) Reassessment of Program.—If the program acquisition unit cost or procurement unit cost of a major defense acquisition program or designated subprogram (as determined by the Secretary under section 4374 of this title) increases by a percentage equal to or greater than the critical cost growth threshold for the program or subprogram, the Secretary of Defense, after consultation with the Joint Requirements Oversight Council regarding program requirements, shall—

(1) determine the root cause or causes of the critical cost growth in accordance with applicable statutory requirements and Department of Defense policies, procedures, and guidance; and

(2) in consultation with the Director of Cost Assessment and Program Evaluation, carry out an assessment of—

(A) the projected cost of completing the program if current requirements are not modified;

(B) the projected cost of completing the program based on reasonable modification of such requirements;

(D) the need to reduce funding for other programs due to the growth in cost of the program.

(b) Presumption of Termination.—

(1) Termination unless secretary submits certification and report.—After conducting the reassessment required by subsection (a) with respect to a major defense acquisition program, the Secretary shall terminate the program unless the Secretary submits to Congress, before the end of the 60-day period beginning on the day the Selected Acquisition Report containing the information described in section 4375(d) and (e) of this title is required to be submitted under section 4351(f) of this title, a written certification in accordance with paragraph (2).

(2) Certification.—A certification described by this paragraph with respect to a major defense acquisition program is a written certification that—

(A) the continuation of the program is essential to the national security;

(B) there are no alternatives to the program which will provide acceptable capability to meet the joint military requirement (as defined in section 181(g)(1) of this title) at less cost;

(C) the new estimates of the program acquisition unit cost or procurement unit cost have been determined by the Director of Cost Assessment and Program Evaluation to be reasonable;

(D) the program is a higher priority than programs whose funding must be reduced to accommodate the growth in cost of the program; and

(E) the management structure for the program is adequate to manage and control program acquisition unit cost or procurement unit cost.

(3) Report.—A written certification under paragraph (2) shall be accompanied by a report presenting the root cause analysis and assessment carried out pursuant to subsection (a) and the basis for each determination made in accordance with subparagraphs (A) through (E) of paragraph (2), together with supporting documentation.

(c) Actions if Program Terminated.—If a major defense acquisition program is terminated pursuant to subsection (b), the Secretary shall submit to Congress a written report setting forth—

(1) an explanation of the reasons for terminating the program;

(2) the alternatives considered to address any problems in the program; and

(3) the course the Department plans to pursue to meet any continuing joint military requirements otherwise intended to be met by the program.

(Added and amended Pub. L. 116–283, div. A, title XVIII, §1850(a), (j), Jan. 1, 2021, 134 Stat. 4265, 4269; Pub. L. 117–81, div. A, title XVII, §1701(o)(6)(E)(v), Dec. 27, 2021, 135 Stat. 2148.)

Editorial Notes

Codification

The text of subsecs. (a) and (b) of section 2433a of this title, which was transferred to this section by Pub. L. 116–283, §1850(j)(1), was based on Pub. L. 111–23, title II, §206(a)(1), May 22, 2009, 123 Stat. 1726; Pub. L. 111–383, div. A, title X, §1075(b)(35), Jan. 7, 2011, 124 Stat. 4371.

The text of subsec. (d) of section 2433a of this title, which was transferred to this section and redesignated subsec. (c) by Pub. L. 116–283, §1850(j)(2), was based on Pub. L. 111–23, title II, §206(a)(1), May 22, 2009, 123 Stat. 1726.

Amendments

2021—Pub. L. 116–283, §1850(j)(1), (2), transferred subsecs. (a), (b), and (d) of section 2433a of this title to this section and redesignated subsec. (d) as (c).

Subsec. (a). Pub. L. 116–283, §1850(j)(3)(A), substituted "section 4374" for "section 2433(d)" in introductory provisions.

Subsec. (b)(1). Pub. L. 116–283, §1850(j)(4)(A), inserted heading.

Pub. L. 116–283, §1850(j)(3)(B), as amended by Pub. L. 117–81, §1701(o)(6)(E)(v), substituted "section 4375(d) and (e)" for "section 2433(g)" and "section 4351(f)" for "section 2432(f)".

Subsec. (b)(2), (3). Pub. L. 116–283, §1850(j)(4)(B)–(D), realigned margins and inserted headings.

Statutory Notes and Related Subsidiaries

Effective Date of 2021 Amendment

Effective Date

§4377. Breach of critical cost growth threshold: actions if program not terminated

(a) Actions if Program Not Terminated.—If the Secretary elects not to terminate a major defense acquisition program pursuant to subsection (b) of section 4376 of this title, the Secretary shall—

(1) restructure the program in a manner that addresses the root cause or causes of the critical cost growth, as identified pursuant to subsection (a) of that section, and ensures that the program has an appropriate management structure as set forth in the certification submitted pursuant to subsection (b)(2)(E) of that section;

(2) rescind the most recent Milestone approval for the program and withdraw any associated certification under section 4251 or 4252 of this title;

(3) require a new Milestone approval for the program before taking any contract action to enter a new contract, exercise an option under an existing contract, or otherwise extend the scope of an existing contract under the program, except to the extent determined necessary by the Milestone Decision Authority, on a non-delegable basis, to ensure that the program can be restructured as intended by the Secretary without unnecessarily wasting resources;

(4) include in the report specified in subsection (b) a description of all funding changes made as a result of the growth in cost of the program, including reductions made in funding for other programs to accommodate such cost growth; and

(5) conduct regular reviews of the program in accordance with the requirements of section 205 of the Weapon Systems Acquisition Reform Act of 2009.

(b) Identification of Report for Description of Funding Changes.—For purposes of subsection (a)(4), the report specified in this subsection is the first Selected Acquisition Report for the program submitted pursuant to section 4351 of this title after the President submits a budget pursuant to section 1105 of title 31, in the calendar year following the year in which the program was restructured.

(1) Conditions for inapplicability.—The requirements of paragraphs (2), (3), and (5) of subsection (a) shall not apply to a program or subprogram if—

(A) the Milestone Decision Authority determines in writing, on the basis of a cost assessment and root cause analysis conducted pursuant to section 4376(a) of this title, that—

(i) but for a change in the quantity of items to be purchased under the program or subprogram, the program acquisition unit cost or procurement unit cost for the program or subprogram would not have increased by a percentage equal to or greater than the cost growth thresholds for the program or subprogram set forth in paragraph (2); and

(ii) the change in quantity of items described in clause (i) was not made as a result of an increase in program cost, a delay in the program, or a problem meeting program requirements;

(B) the Secretary determines in writing that the cost to the Department of Defense of complying with such requirements is likely to exceed the benefits to the Department of complying with such requirements; and

(C) the Secretary submits to Congress, before the end of the 60-day period beginning on the day the Selected Acquisition Report containing the information described in subsections (d) and (e) of section 4375 of this title is required to be submitted under section 4351(f) of this title—

(i) a copy of the written determination under subparagraph (A) and an explanation of the basis for the determination; and

(ii) a copy of the written determination under subparagraph (B) and an explanation of the basis for the determination.

(2) Cost growth thresholds.—The cost growth thresholds specified in this paragraph are as follows:

(A) In the case of a major defense acquisition program or designated major defense subprogram, a percentage increase in the program acquisition unit cost for the program or subprogram of—

(i) 5 percent over the program acquisition unit cost for the program or subprogram as shown in the current Baseline Estimate for the program or subprogram; and

(ii) 10 percent over the program acquisition unit cost for the program or subprogram as shown in the original Baseline Estimate for the program or subprogram.

(i) 5 percent over the procurement unit cost for the program or subprogram as shown in the current Baseline Estimate for the program or subprogram; and

(ii) 10 percent over the procurement unit cost for the program or subprogram as shown in the original Baseline Estimate for the program or subprogram.

(Added and amended Pub. L. 116–283, div. A, title XVIII, §1850(a), (k), Jan. 1, 2021, 134 Stat. 4265, 4270; Pub. L. 117–81, div. A, title XVII, §1701(o)(6)(E)(vi), (vii), Dec. 27, 2021, 135 Stat. 2148.)

Editorial Notes

References in Text

Section 205 of the Weapon Systems Acquisition Reform Act of 2009, referred to in subsec. (a)(5), is section 205 of Pub. L. 111–23, which amended section 4252 of this title and enacted provisions set out as notes under this section and former section 2366b of this title.

Codification

The text of subsec. (c) of section 2433a of this title, which was transferred to this section and redesignated as subsec. (a) by Pub. L. 116–283, §1850(k)(1), was based on Pub. L. 111–23, title II, §206(a)(1), May 22, 2009, 123 Stat. 1726; Pub. L. 112–81, div. A, title VIII, §§801(e)(4), 831, Dec. 31, 2011, 125 Stat. 1484, 1503; Pub. L. 112–239, div. A, title VIII, §813, Jan. 2, 2013, 126 Stat. 1829.

Prior Provisions

Prior sections 4381 to 4387 were repealed by Pub. L. 88–647, title III, §301(10), Oct. 13, 1964, 78 Stat. 1072.

Section 4381, act Aug. 10, 1956, ch. 1041, 70A Stat. 246, defined "advanced training" for purposes of chapter 405.

Section 4382, act Aug. 10, 1956, ch. 1041, 70A Stat. 246, provided for the establishment and composition of the Reserve Officers' Training Corps.

Section 4383, act Aug. 10, 1956, ch. 1041, 70A Stat. 247, related to admission and training of medical, dental, pharmacy, and veterinary students.

Section 4384, act Aug. 10, 1956, ch. 1041, 70A Stat. 247; Pub. L. 85–861, §1(104), Sept. 2, 1958, 72 Stat. 1489, set out courses of training.

Section 4385, act Aug. 10, 1956, ch. 1041, 70A Stat. 247, authorized the operation and maintenance of training camps.

Section 4386, act Aug. 10, 1956, ch. 1041, 70A Stat. 248, provided for supplies and uniforms.

Section 4387, act Aug. 10, 1956, ch. 1041, 70A Stat. 248, provided for advanced training and compensation.

Amendments

2021—Pub. L. 116–283, §1850(k)(2), redesignated pars. (2) and (3) of subsec. (a) as subsecs. (b) and (c), respectively.

Pub. L. 116–283, §1850(k)(1), transferred subsec. (c) of section 2433a of this title to this section and redesignated it as subsec. (a).

Subsec. (a). Pub. L. 116–283, §1850(k)(3)(A)–(C), struck out par. (1) designation before "If the Secretary", inserted "of section 4376 of this title" after "subsection (b)" in introductory provisions, and redesignated subpars. (A) to (E) as pars. (1) to (5), respectively.

Subsec. (a)(1). Pub. L. 116–283, §1850(k)(3)(D), inserted "of that section" after "subsection (a)" and "subsection (b)(2)(E)".

Subsec. (a)(2). Pub. L. 116–283, §1850(k)(3)(E), substituted "section 4251 or 4252" for "section 2366a or 2366b".

Subsec. (a)(4). Pub. L. 116–283, §1850(k)(3)(F), substituted "subsection (b)" for "paragraph (2)".

Subsec. (b). Pub. L. 116–283, §1850(k)(4), as amended by Pub. L. 117–81, §1701(o)(6)(E)(vi), inserted heading and substituted "subsection (a)(4)" for "paragraph (1)(D)", "in this subsection" for "in this paragraph", and "section 4351" for "section 2432".

Subsec. (c). Pub. L. 116–283, §1850(k)(5), inserted subsec. heading, redesignated subpars. (A) and (B) as pars. (1) and (2), respectively, inserted par. headings, and substituted "The requirements of paragraphs (2), (3), and (5) of subsection (a)" for "The requirements of subparagraphs (B), (C), and (E) of paragraph (1)" in introductory provisions of par. (1).

Subsec. (c)(1). Pub. L. 116–283, §1850(k)(6)(A), redesignated cls. (i) to (iii) as subpars. (A) to (C), respectively.

Subsec. (c)(1)(A). Pub. L. 116–283, §1850(k)(6)(C)(i), substituted "pursuant to section 4376(a) of this title" for "pursuant to subsection (a)" in introductory provisions.

Pub. L. 116–283, §1850(k)(6)(B), redesignated subcls. (I) and (II) as cls. (i) and (ii), respectively.

Subsec. (c)(1)(A)(i). Pub. L. 116–283, §1850(k)(6)(C)(ii), substituted "paragraph (2)" for "subparagraph (B)".

Subsec. (c)(1)(A)(ii). Pub. L. 116–283, §1850(k)(6)(C)(iii), substituted "clause (i)" for "subclause (I)".

Subsec. (c)(1)(C). Pub. L. 116–283, §1850(k)(6)(D)(i), as amended by Pub. L. 117–81, §1701(o)(6)(E)(vii), substituted "subsections (d) and (e) of section 4375" for "section 2433(g)" and "section 4351(f)" for "section 2432(f)" in introductory provisions.

Pub. L. 116–283, §1850(k)(6)(B), redesignated subcls. (I) and (II) as cls. (i) and (ii), respectively.

Subsec. (c)(1)(C)(i). Pub. L. 116–283, §1850(k)(6)(D)(ii), substituted "subparagraph (A)" for "clause (i)".

Subsec. (c)(1)(C)(ii). Pub. L. 116–283, §1850(k)(6)(D)(iii), substituted "subparagraph (B)" for "clause (ii)".

Subsec. (c)(2). Pub. L. 116–283, §1850(k)(7)(A), (B), substituted "this paragraph" for "this subparagraph" in introductory provisions and redesignated cls. (i) and (ii) as subpars. (A) and (B), respectively.

Subsec. (c)(2)(A), (B). Pub. L. 116–283, §1850(k)(7)(C), redesignated subcls. (I) and (II) as cls. (i) and (ii), respectively.

Statutory Notes and Related Subsidiaries

Effective Date of 2021 Amendment

Effective Date

Reviews of Programs Restructured After Experiencing Critical Cost Growth

Pub. L. 111–23, title II, §205(c), May 22, 2009, 123 Stat. 1725, as amended by Pub. L. 111–383, div. A, title VIII, §813(e), title X, §1075(k)(2), Jan. 7, 2011, 124 Stat. 4266, 4378, provided that: "The official designated to perform oversight of performance assessment pursuant to section 103 of this Act [formerly set out as a note under section 2430 of this title, see 10 U.S.C. 4273], shall assess the performance of each major defense acquisition program that has exceeded critical cost growth thresholds established pursuant to [former] section 2433(e) of title 10, United States Code [see 10 U.S.C. 4375(a) to (c)], but has not been terminated in accordance with [former] section 2433a of such title [see 10 U.S.C. 4376, 4377] (as added by section 206(a) of this Act) not less often than semi-annually until one year after the date on which such program receives a new milestone approval, in accordance with [former] section 2433a(c)(1)(C) of such title [see 10 U.S.C. 4377(a)(3)] (as so added). The results of reviews performed under this subsection shall be reported to the Under Secretary of Defense for Acquisition, Technology, and Logistics and summarized in the next annual report of such designated official."

[Pub. L. 111–383, div. A, title VIII, §813(e), Jan. 7, 2011, 124 Stat. 4266, provided that the amendment made by section 813(e) to section 205(c) of Pub. L. 111–23, set out above, is effective as of May 22, 2009, and as if included in Pub. L. 111–23, as enacted.]

[For definition of "major defense acquisition program" as used in section 205(c) of Pub. L. 111–23, set out above, see section 2(2) of Pub. L. 111–23, set out as a note preceding section 4321 of this title.]

CHAPTER 327—WEAPON SYSTEMS DEVELOPMENT AND RELATED MATTERS

Subchapter

Sec.

Modular Open System Approach in Development of Weapon Systems

4401

II.

Development, Prototyping, and Deployment of Weapon System Components or Technology

4421

Editorial Notes

Prior Provisions

A prior chapter 327 "RESEARCH AND DEVELOPMENT CENTERS AND FACILITIES", consisting of reserved section 4401, was repealed by Pub. L. 116–283, div. A, title XVIII, §1841(a)(1)(A), Jan. 1, 2021, 134 Stat. 4242.

A prior chapter 329 "OPERATIONAL TEST AND EVALUATION; DEVELOPMENTAL TEST AND EVALUATION", consisting of reserved section 4451, was repealed by Pub. L. 116–283, div. A, title XVIII, §1841(a)(1)(A), Jan. 1, 2021, 134 Stat. 4242.

SUBCHAPTER I—MODULAR OPEN SYSTEM APPROACH IN DEVELOPMENT OF WEAPON SYSTEMS

Sec.

4401.

Requirement for modular open system approach in major defense acquisition programs; definitions.

4402.

Requirement to address modular open system approach in program capabilities development and acquisition weapon system design.

4403.

Requirements relating to availability of major system interfaces and support for modular open system approach.

§4401. Requirement for modular open system approach in major defense acquisition programs; definitions

(a) Modular Open System Approach Requirement.—A major defense acquisition program that receives Milestone A or Milestone B approval after January 1, 2019, shall be designed and developed, to the maximum extent practicable, with a modular open system approach to enable incremental development and enhance competition, innovation, and interoperability. Other defense acquisition programs shall also be designed and developed, to the maximum extent practicable, with a modular open system approach to enable incremental development and enhance competition, innovation, and interoperability.

(b) Definitions.—In this chapter:

(1) The term "modular open system approach" means, with respect to a major defense acquisition program, an integrated business and technical strategy that—

(A) employs a modular design that uses modular system interfaces between major systems, major system components and modular systems;

(B) is subjected to verification to ensure that relevant modular system interfaces—

(i) comply with, if available and suitable, widely supported and consensus-based standards; or

(ii) are delivered pursuant to the requirements established in subsection (a)(2)(B) of section 804 of the William M. (Mac) Thornberry National Defense Authorization Act for Fiscal Year 2021, including the delivery of—

(I) software-defined interface syntax and properties, specifically governing how values are validly passed and received between major subsystems and components, in machine-readable format;

(II) a machine-readable definition of the relationship between the delivered interface and existing common standards or interfaces available in Department interface repositories; and

(III) documentation with functional descriptions of software-defined interfaces, conveying semantic meaning of interface elements, such as the function of a given interface field;

(C) uses a system architecture that allows severable major system components and modular systems at the appropriate level to be incrementally added, removed, or replaced throughout the life cycle of a major system platform to afford opportunities for enhanced competition and innovation while yielding—

(i) significant cost savings or avoidance;

(ii) schedule reduction;

(iii) opportunities for technical upgrades;

(iv) increased interoperability, including system of systems interoperability and mission integration; or

(v) other benefits during the sustainment phase of a major weapon system; and

(D) complies with the technical data rights set forth in sections 3771 through 3775 of this title.

(2) The term "major system platform" means the highest level structure of a major weapon system that is not physically mounted or installed onto a higher level structure and on which a major system component can be physically mounted or installed.

(3) The term "major system component"—

(A) means a high level subsystem or assembly, including hardware, software, or an integrated assembly of both, that can be mounted or installed on a major system platform through modular system interfaces; and

(B) includes a subsystem or assembly that is likely to have additional capability requirements, is likely to change because of evolving technology or threat, is needed for interoperability, facilitates incremental deployment of capabilities, or is expected to be replaced by another major system component.

(4) The term "modular system interface" means a shared boundary between major systems, major system components, or modular systems, defined by various physical, logical, and functional characteristics, such as electrical, mechanical, fluidic, optical, radio frequency, data, networking, or software elements.

(5) The term "modular system" refers to a weapon system or weapon system component that—

(A) is able to execute without requiring coincident execution of other specific weapon systems or components;

(B) can communicate across component boundaries and through interfaces; and

(C) functions as a module that can be separated, recombined, and connected with other weapon systems or weapon system components in order to achieve various effects, missions, or capabilities.

(6) The term "program capability document" means, with respect to a major defense acquisition program, a document that specifies capability requirements for the program, such as a capability development document or a capability production document.

(7) The terms "program cost targets" and "fielding target" have the meanings provided in section 4271(a) of this title.

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

(9) The term "major weapon system" has the meaning provided in section 3455(f) of this title.

(Added Pub. L. 114–328, div. A, title VIII, §805(a)(1), Dec. 23, 2016, 130 Stat. 2252, §2446a; renumbered §4401 and amended Pub. L. 116–283, div. A, title VIII, §804(b)(1), title XVIII, §1851(b)(1), (2), Jan. 1, 2021, 134 Stat. 3737, 4272.)

Editorial Notes

References in Text

Section 804 of the William M. (Mac) Thornberry National Defense Authorization Act for Fiscal Year 2021, referred to in subsec. (b)(1)(B)(ii), is section 804 of Pub. L. 116–283, which is set out as a note below.

Amendments

2021—Pub. L. 116–283, §1851(b)(1), renumbered section 2446a of this title as this section.

Subsec. (a). Pub. L. 116–283, §804(b)(1)(A), inserted at end "Other defense acquisition programs shall also be designed and developed, to the maximum extent practicable, with a modular open system approach to enable incremental development and enhance competition, innovation, and interoperability."

Subsec. (b)(1)(A). Pub. L. 116–283, §804(b)(1)(B)(i)(I), substituted "modular system interfaces between major systems, major system components and modular systems;" for "major system interfaces between a major system platform and a major system component, between major system components, or between major system platforms;".

Subsec. (b)(1)(B). Pub. L. 116–283, §804(b)(1)(B)(i)(II), substituted "that relevant modular system interfaces—" for "major system interfaces comply with, if available and suitable, widely supported and consensus-based standards;" and added cls. (i) and (ii).

Subsec. (b)(1)(C). Pub. L. 116–283, §804(b)(1)(B)(i)(III), inserted "and modular systems" after "severable major system components" in introductory provisions.

Subsec. (b)(1)(D). Pub. L. 116–283, §1851(b)(2)(A), substituted "sections 3771 through 3775" for "section 2320".

Subsec. (b)(3)(A). Pub. L. 116–283, §804(b)(1)(B)(ii), substituted "modular system interfaces" for "well-defined major system interfaces".

Subsec. (b)(4). Pub. L. 116–283, §804(b)(1)(B)(iii), amended par. (4) generally. Prior to amendment, par. (4) defined major system interface.

Subsec. (b)(5), (6). Pub. L. 116–283, §804(b)(1)(B)(iv), (v), added par. (5) and redesignated former pars. (5) and (6) as (6) and (7), respectively.

Subsec. (b)(7). Pub. L. 116–283, §1851(b)(2)(B), which directed amendment of par. (6) of subsec. (b) by substituting "section 4271(a)" for "section 2448a(a)", was executed by making the substitution in par. (7) to reflect the probable intent of Congress and the intervening amendment by section 804(b)(1)(B)(iv) of Pub. L. 116–283 which redesignated par. (6) as (7). See below.

Pub. L. 116–283, §804(b)(1)(B)(iv), redesignated par. (6) as (7). Former par. (7) redesignated (8).

Subsec. (b)(8). Pub. L. 116–283, §1851(b)(2)(C), which directed amendment of par. (7) of subsec. (b) by substituting "section 4201" for "section 2430", was executed by making the substitution in par. (8) to reflect the probable intent of Congress and the intervening amendment by section 804(b)(1)(B)(iv) of Pub. L. 116–283 which redesignated par. (7) as (8). See below.

Pub. L. 116–283, §804(b)(1)(B)(iv), redesignated par. (7) as (8). Former par. (8) redesignated (9).

Subsec. (b)(9). Pub. L. 116–283, §1851(b)(2)(D), which directed amendment of par. (8) of subsec. (b) by substituting "section 3455(f)" for "section 2379(f)", was executed by making the substitution in par. (9) to reflect the probable intent of Congress and the intervening amendment by section 804(b)(1)(B)(iv) of Pub. L. 116–283 which redesignated par. (8) as (9). See below.

Pub. L. 116–283, §804(b)(1)(B)(iv), redesignated par. (8) as (9).

Statutory Notes and Related Subsidiaries

Effective Date of 2021 Amendment

Amendment by section 1851(b)(1), (2) of Pub. L. 116–283 effective Jan. 1, 2022, with additional provisions for delayed implementation and applicability of existing law, see section 1801(d) of Pub. L. 116–283, set out as a note preceding section 3001 of this title.

Effective Date

Pub. L. 114–328, div. A, title VIII, §805(a)(4), Dec. 23, 2016, 130 Stat. 2255, provided that: "Subchapter I of chapter 144B of title 10, United States Code [see, now, this subchapter], as added by paragraph (1), shall take effect on January 1, 2017."

Implementation of Modular Open Systems Approaches

Pub. L. 116–283, div. A, title VIII, §804, Jan. 1, 2021, 134 Stat. 3735, provided that:

"(a) Requirements for Interface Delivery.—

"(1) In general.—Not later than one year after the date of the enactment of this Act [Jan. 1, 2021], the Under Secretary of Defense for Acquisition and Sustainment, in coordination with the Joint All-Domain Command and Control cross-functional team and the Director for Command, Control, Communications, and Computers/Cyber, shall issue regulations and guidance applicable to the military departments, Defense Agencies, Department of Defense Field Activities (as such terms are defined, respectively, in section 101 of title 10, United States Code), and combatant commands, as appropriate, to—

"(A) facilitate the Department of Defense's access to and utilization of modular system interfaces;

"(B) fully realize the intent of [former] chapter 144B of title 10, United States Code [see this chapter and sections 4271 and 4272 of this title], by facilitating the implementation of modular open system approaches across major defense acquisition programs (as defined in section 2430 of title 10, United States Code [now 10 U.S.C. 4201]) and other relevant acquisition programs, including in the acquisition and sustainment of weapon systems, platforms, and components for which no common interface standard has been established, to enable communication between such weapon systems, platforms, and components; and

"(C) advance the efforts of the Department to generate diverse and recomposable kill chains.

"(2) Elements.—The regulations and guidance required under paragraph (1) shall include requirements that—

"(A) the program officer for each weapon system characterizes, in the acquisition strategy required under section 2431a of title 10, United States Code [now 10 U.S.C. 4211] or in other documentation, the desired modularity of the weapon system for which the program officer is responsible, including—

"(i) identification of—

"(I) the modular systems that comprise the weapon system;

"(II) the information that should be communicated between individual modular systems (such as tracking and targeting data or command and control instructions); and

"(III) the desired function of the communication between modular systems (such as fire control functions); and

"(ii) a default configuration specifying which modular systems should communicate with other modular systems, including modular systems of other weapon systems;

"(B) each relevant Department of Defense contract entered into after the date on which the regulations and guidance required under paragraph (1) are implemented includes requirements for the delivery of modular system interfaces for modular systems deemed relevant in the acquisition strategy or documentation referred to in subparagraph (A), including—

"(i) software-defined interface syntax and properties, specifically governing how values are validly passed and received between major subsystems and components, in machine-readable format;

"(ii) a machine-readable definition of the relationship between the delivered interface and existing common standards or interfaces available in the interface repositories established pursuant to subsection (c); and

"(iii) documentation with functional descriptions of software-defined interfaces, conveying semantic meaning of interface elements, such as the function of a given interface field;

"(C) the relevant program offices, including those responsible for maintaining and upgrading legacy systems—

"(i) that have not characterized the desired modularity of the systems nevertheless meet the requirements of paragraph (2)(A), if the program officers make an effort, to the extent practicable, to update the acquisition strategies required under section 2431a of title 10, United States Code [now 10 U.S.C. 4211], or to develop or update other relevant documentation; and

"(ii) that have awarded contracts that do not include the requirements specified in subparagraph (B) of paragraph (2) nevertheless acquire, to the extent practicable, the items specified in clauses (i) through (iii) of such subparagraph, either through contractual updates, separate negotiations or contracts, or program management mechanisms; and

"(D) the relevant program officers deliver modular system interfaces and the associated documentation to at least one of the repositories established pursuant to subsection (c).

"(3) Applicability of regulations and guidance.—

"(A) Applicability.—The regulations and guidance required under paragraph (1) shall apply to any program office responsible for the prototyping, acquisition, or sustainment of a new or existing weapon system.

"(B) Extension of scope.—Not earlier than 1 year before, and not later than 2 years after the regulations and guidance required under paragraph (1) are issued for weapon systems, the Under Secretary of Defense for Acquisition and Sustainment may extend such regulations and guidance to apply to software-based non-weapon systems, including business systems and cybersecurity systems.

"(4) Inclusion of components.—For the purposes of paragraph (2)(A), each component that meets the following requirements shall be treated as a modular system:

"(A) A component that is able to execute without requiring coincident execution of other weapon systems or components and can communicate across component boundaries and through interfaces.

"(B) A component that can be separated from and recombined with other weapon systems or components to achieve various effects, missions, or capabilities.

"(C) A component that is covered by a unique contract line item.

"(5) Machine-readable definition.—Where appropriate and available, the requirement in paragraph (2)(B)(ii) for a machine-readable definition may be satisfied by using a covered technology.

"(b) Extension of Modular Open Systems Approach and Rights in Interface Software.—

"(1) Requirement for modular open system approach.—[Amended section 4401 of this title.]

"(2) Rights in technical data.—

"(A) In general.—[Amended former section 2320 of this title.]

"(B) Regulations.—Not later than 180 days after the date of the enactment of this Act [Jan. 1, 2021], the Secretary of Defense shall update the regulations required by section 2320(a)(1) of title 10, United States Code [see 10 U.S.C. 3771(a)], to reflect the amendments made by this paragraph.

"(c) Interface Repositories.—

"(1) Establishment.—Not later than 90 days after the date of the enactment of this Act [Jan. 1, 2021], the Under Secretary of Defense for Acquisition and Sustainment shall—

"(A) direct the Secretaries concerned and the heads of other appropriate Department of Defense components to establish and maintain repositories for interfaces, syntax and properties, documentation, and communication implementations delivered pursuant to the requirements established under subsection (a)(2)(B);

"(B) establish and maintain a comprehensive index of interfaces, syntax and properties, documentation, and communication implementations delivered pursuant to the requirements established under subsection (a)(2)(B) and maintained in the repositories required under subparagraph (A); and

"(C) if practicable, establish and maintain an alternate reference repository of interfaces, syntax and properties, documentation, and communication implementations delivered pursuant to the requirements established under subsection (a)(2)(B).

"(2) Distribution of interfaces.—

"(A) In general.—Consistent with the requirements of section 2320 of title 10, United States Code [see 10 U.S.C. 3771 et seq.], the Under Secretary of Defense for Acquisition and Sustainment shall, in coordination with the Director of the Defense Standardization Program Office, use the index and repositories established pursuant to paragraph (1) to provide access to interfaces and relevant documentation to authorized Federal Government and non-Governmental entities.

"(B) Non-government recipient use limits.—A non-Governmental entity that receives access under subparagraph (A) may not further release, disclose, or use such data except as authorized.

"(d) System of Systems Integration Technology and Experimentation.—

"(1) Demonstration and assessment.—

"(A) In general.—Not later than one year after the date of the enactment of this Act [Jan. 1, 2021], the Director for Command, Control, Communications, and Computers/Cyber and the Chief Information Officer of the Department of Defense, acting through the Joint All-Domain Command and Control cross-functional team, shall conduct demonstrations and complete an assessment of the technologies developed under the System of Systems Integration Technology and Experimentation program of the Defense Advanced Research Projects Agency, including a covered technology, and the applicability of any such technologies to the Joint All-Domain Command and Control architecture.

"(B) Coverage.—The demonstrations and assessment required under subparagraph (A) shall include—

"(i) at least three demonstrations of the use of a covered technology to create, under constrained schedules and budgets, novel kill chains involving previously incompatible weapon systems, sensors, and command, control, and communication systems from multiple military services in cooperation with United States Indo-Pacific Command or United States European Command;

"(ii) an evaluation as to whether the communications enabled via a covered technology are sufficient for military missions and whether such technology results in any substantial performance loss in communication between systems, major subsystems, and major components;

"(iii) an evaluation as to whether a covered technology obviates the need to develop, impose, and maintain strict adherence to common communication and interface standards for weapon systems;

"(iv) the appropriate roles and responsibilities of the Chief Information Officer of the Department of Defense, the Under Secretary of Defense for Acquisition and Sustainment, the heads of the combatant commands, the Secretaries concerned, the Defense Advanced Research Projects Agency, and the defense industrial base in using and maintaining a covered technology to generate diverse and recomposable kill chains as part of the Joint All-Domain Command and Control architecture;

"(v) for at least one of the demonstrations conducted under clause (i), demonstration of the use of technology developed under the High-Assurance Cyber Military Systems program of the Defense Advanced Research Projects Agency to secure legacy weapon systems and command and control capabilities while facilitating interoperability;

"(vi) an evaluation of how the technology referred to in clause (v) and covered technology should be used to improve cybersecurity and interoperability across critical weapon systems and command and control capabilities across the joint forces; and

"(vii) coordination with the program manager for the Time Sensitive Targeting Defeat program under the Under Secretary of Defense for Research and Engineering and the Under Secretary of Defense for Intelligence and Security.

"(2) Chief information officer assessment.—

"(A) In general.—The Chief Information Officer for the Department of Defense, in coordination with the Principal Cyber Advisor to the Secretary of Defense and the Director of the Cybersecurity Directorate of the National Security Agency, shall assess the technologies developed under the System of Systems Integration Technology and Experimentation program of the Defense Advanced Research Projects Agency, including the covered technology, and applicability of such technology to the business systems and cybersecurity tools of the Department.

"(B) Coverage.—The assessment required under subparagraph (A) shall include—

"(i) an evaluation as to how the technologies referred to in such subparagraph could be used in conjunction with or instead of existing cybersecurity standards, frameworks, and technologies designed to enable communication between, and coordination of, cybersecurity tools;

"(ii) as appropriate, demonstrations by the Chief Information Office of the use of such technologies in enabling communication between, and coordination of, previously incompatible cybersecurity tools; and

"(iii) as appropriate, demonstrations of the use of such technologies in enabling communication between previously incompatible business systems.

"(3) Sustainment of certain engineering resources and capabilities.—During the period the demonstrations and assessments required under this subsection are conducted, and thereafter to the extent required to execute the activities directed by the Joint All-Domain Command and Control cross-functional team, the Joint All-Domain Command and Control cross-functional team shall sustain the System of Systems Technology Integration Tool Chain for Heterogeneous Electronic Systems engineering resources and capabilities developed by the Defense Advanced Research Projects Agency.

"(4) Transfer of responsibility.—Not earlier than 1 year before, and not later than 2 years after the date of the enactment of this Act, the Secretary of Defense may transfer responsibility for maintaining the engineering resources and capabilities described in paragraph (3) to a different organization within the Department.

"(e) Open Standards.—Nothing in this section shall be construed as requiring, preventing, or interfering with the use or application of any given communication standard or interface. The communication described in subsection (a)(2)(A) may be accomplished by using existing open standards, by the creation and use of new open standards, or through other approaches, provided that such standards meet the requirements of subsection (a)(2)(B).

"(f) Definitions.—In this section:

"(1) The term 'covered technology' means the domain-specific programming language for interface field transformations and its associated compilation toolchain (commonly known as the 'System of Systems Technology Integration ToolChain for Heterogeneous Electronic Systems') developed under the Defense Advanced Research Projects Agency System of Systems Integration Technology and Experimentation program, or any other technology that is functionally equivalent.

"(2) The term 'desired modularity' means the desired degree to which weapon systems, components within a weapon system, and components across weapon systems can function as modules that can communicate across component boundaries and through interfaces and can be separated and recombined to achieve various effects, missions, or capabilities, as determined by the program officer for such weapon system.

"(3) The term 'machine-readable format' means a format that can be easily processed by a computer without human intervention.

"(4) The terms 'major system', 'major system component', 'modular open system approach', 'modular system', 'modular system interface', and 'weapon system' have the meanings given such terms, respectively, in section 2446a of title 10, United States Code [now 10 U.S.C. 4401]."

§4402. Requirement to address modular open system approach in program capabilities development and acquisition weapon system design

(a) Program Capability Document.—A program capability document for a major defense acquisition program shall identify and characterize—

(1) the extent to which requirements for system performance are likely to evolve during the life cycle of the system because of evolving technology, threat, or interoperability needs; and

(2) for requirements that are expected to evolve, the minimum acceptable capability that is necessary for initial operating capability of the major defense acquisition program.

(b) Analysis of Alternatives.—The Director of Cost Assessment and Performance Evaluation, in formulating study guidance for analyses of alternatives for major defense acquisition programs and performing such analyses under section 139a(d)(4) of this title, shall ensure that any such analysis for a major defense acquisition program includes consideration of evolutionary acquisition, prototyping, and a modular open system approach.

(c) Acquisition Strategy.—In the case of a major defense acquisition program that uses a modular open system approach, the acquisition strategy required under section 4211 of this title shall—

(1) clearly describe the modular open system approach to be used for the program;

(2) differentiate between the major system platform and major system components being developed under the program, as well as major system components developed outside the program that will be integrated into the major defense acquisition program;

(3) clearly describe the evolution of major system components that are anticipated to be added, removed, or replaced in subsequent increments;

(4) identify additional major system components that may be added later in the life cycle of the major system platform;

(5) clearly describe how intellectual property and related issues, such as technical data deliverables, that are necessary to support a modular open system approach, will be addressed; and

(6) clearly describe the approach to systems integration and systems-level configuration management to ensure mission and information assurance.

(d) Request for Proposals.—The milestone decision authority for a major defense acquisition program that uses a modular open system approach shall ensure that a request for proposals for the development or production phases of the program shall describe the modular open system approach and the minimum set of major system components that must be included in the design of the major defense acquisition program.

(e) Milestone B.—A major defense acquisition program may not receive Milestone B approval under section 4252 of this title until the milestone decision authority determines in writing—

(1) in the case of a program that uses a modular open system approach, that—

(A) the program incorporates clearly defined major system interfaces between the major system platform and major system components, between major system components, and between major system platforms;

(B) such major system interfaces are consistent with the widely supported and consensus-based standards that exist at the time of the milestone decision, unless such standards are unavailable or unsuitable for particular major system interfaces; and

(C) the Government has arranged to obtain appropriate and necessary intellectual property rights with respect to such major system interfaces upon completion of the development of the major system platform; or

(2) in the case of a program that does not use a modular open system approach, that the use of a modular open system approach is not practicable.

(f) Implementation Guidance.—The Secretaries of the military departments shall issue guidance to implement the requirements of this section.

(Added Pub. L. 114–328, div. A, title VIII, §805(a)(1), Dec. 23, 2016, 130 Stat. 2253, §2446b; amended Pub. L. 115–91, div. A, title X, §1081(a)(40), Dec. 12, 2017, 131 Stat. 1596; Pub. L. 116–92, div. A, title VIII, §840(a), Dec. 20, 2019, 133 Stat. 1499; renumbered §4402 and amended Pub. L. 116–283, div. A, title XVIII, §1851(b)(1), (3), Jan. 1, 2021, 134 Stat. 4272.)

Editorial Notes

Amendments

2021—Pub. L. 116–283, §1851(b)(1), renumbered section 2446b of this title as this section.

Subsec. (c). Pub. L. 116–283, §1851(b)(3)(A), substituted "section 4211" for "section 2431a" in introductory provisions.

Subsec. (e). Pub. L. 116–283, §1851(b)(3)(B), substituted "section 4252" for "section 2366b" in introductory provisions.

2019—Subsec. (f). Pub. L. 116–92 added subsec. (f).

2017—Subsec. (e). Pub. L. 115–91 substituted "in writing—" for "in writing that—" in introductory provisions and inserted ", that" after "open system approach" in introductory provisions of par. (1).

Statutory Notes and Related Subsidiaries

Effective Date of 2021 Amendment

Effective Date

Section effective Jan. 1, 2017, see section 805(a)(4) of Pub. L. 114–328, set out as a note under section 4401 of this title.

§4403. Requirements relating to availability of major system interfaces and support for modular open system approach

The Secretary of each military department shall—

(1) coordinate with the other military departments, the defense agencies, defense and other private sector entities, national standards-setting organizations, and, when appropriate, with elements of the intelligence community with respect to the specification, identification, development, and maintenance of major system interfaces and standards for use in major system platforms, where practicable;

(2) ensure that major system interfaces incorporate commercial standards and other widely supported consensus-based standards that are validated, published, and maintained by recognized standards organizations to the maximum extent practicable;

(3) ensure that sufficient systems engineering and development expertise and resources are available to support the use of a modular open system approach in requirements development and acquisition program planning;

(4) ensure that necessary planning, programming, and budgeting resources are provided to specify, identify, develop, and sustain the modular open system approach, associated major system interfaces, systems integration, and any additional program activities necessary to sustain innovation and interoperability;

(5) ensure that adequate training in the use of a modular open system approach is provided to members of the requirements and acquisition workforce; and

(6) issue guidance to implement the requirements of this section.

(Added Pub. L. 114–328, div. A, title VIII, §805(a)(1), Dec. 23, 2016, 130 Stat. 2255, §2446c; amended Pub. L. 116–92, div. A, title VIII, §840(b), Dec. 20, 2019, 133 Stat. 1499; renumbered §4403, Pub. L. 116–283, div. A, title XVIII, §1851(b)(1), Jan. 1, 2021, 134 Stat. 4272.)

Editorial Notes

Prior Provisions

Prior sections 4411 to 4414 were renumbered sections 7481 to 7484 of this title, respectively.

A prior section 4415, added Pub. L. 100–180, div. A, title III, §319(a)(1), Dec. 4, 1987, 101 Stat. 1077; amended Pub. L. 100–526, title I, §106(c), Oct. 24, 1988, 102 Stat. 2625, related to United States Army School of the Americas, prior to repeal by Pub. L. 106–398, §1 [[div. A], title IX, §911(b)], Oct. 30, 2000, 114 Stat. 1654, 1654A-228.

Prior sections 4416 and 4417 were renumbered sections 7486 and 7487 of this title, respectively.

Amendments

2021—Pub. L. 116–283 renumbered section 2446c of this title as this section.

2019—Par. (6). Pub. L. 116–92 added par. (6).

Statutory Notes and Related Subsidiaries

Effective Date of 2021 Amendment

Effective Date

Section effective Jan. 1, 2017, see section 805(a)(4) of Pub. L. 114–328, set out as a note under section 4401 of this title.

SUBCHAPTER II—DEVELOPMENT, PROTOTYPING, AND DEPLOYMENT OF WEAPON SYSTEM COMPONENTS OR TECHNOLOGY

Sec.

4421.

Weapon system component or technology prototype projects: display of budget information.

4422.

Weapon system component or technology prototype projects: oversight.

4423.

Requirements and limitations for weapon system component or technology prototype projects.

4424.

Mechanisms to speed deployment of successful weapon system component or technology prototypes.

4425.

Definition of weapon system component.

Statutory Notes and Related Subsidiaries

Pilot Program on Development of Reentry Vehicles and Related Systems

Pub. L. 118–31, div. A, title XVI, §1645, Dec. 22, 2023, 137 Stat. 598, provided that:

"(a) In General.—The Secretary of the Air Force may carry out a pilot program, to be known as the 'Reentry Vehicle Flight Test Bed Program', to assess the feasibility of providing regular flight test opportunities that support the development of reentry vehicles to—

"(1) facilitate technology upgrades tested in a realistic flight environment;

"(2) provide an enduring, high-cadence test bed to mature technologies for planned reentry vehicles; and

"(3) transition technologies developed under other programs and projects relating to long-range ballistic or hypersonic strike missiles from the research and development or prototyping phases into operational use.

"(b) Grants, Contracts, and Other Agreements.—

"(1) Authority.—In carrying out a pilot program under this section, the Secretary may, subject to paragraph (2), award grants and enter into contracts or other agreements with appropriate entities for the conduct of relevant flight tests of reentry vehicles and systems.

"(2) Grant and contract requirements.—

"(A) Merit-based grants.—Any grant under paragraph (1) shall be awarded through merit-based selection procedures.

"(B) Competitive contract procedures.—Any contract or other agreement under paragraph (1) shall be awarded using competitive procedures (as defined in section 3012 of title 10, United States Code).

"(3) Use of funds.—An entity that receives a grant, or enters into a contract or other agreement, as part of a pilot program carried out under this section shall use the grant, or any amount received under the contract or other agreement, to carry out one or more of the following activities:

"(A) Conducting flight tests to develop or validate—

"(i) aeroshell design;

"(ii) thermal protective systems;

"(iii) guidance and control systems;

"(iv) sensors;

"(v) communications;

"(vi) environmental sensors; or

"(vii) other relevant technologies.

"(B) Expanding flight test opportunities through low-cost, high-cadence platforms.

"(c) Coordination.—If the Secretary of the Air Force carries out a pilot program under this section, the Secretary shall ensure that the activities under the pilot program are carried out in coordination with the Secretary of Defense and the Secretary of the Navy.

"(d) Termination.—The authority to carry out a pilot program under this section shall terminate on December 31, 2029."

§4421. Weapon system component or technology prototype projects: display of budget information

(a) Requirements for Budget Display.—In the defense budget materials for any fiscal year, the Secretary of Defense shall, with respect to advanced component development and prototype activities (within the research, development, test, and evaluation budget), set forth the amounts requested for each of the following:

(1) Acquisition programs of record.

(2) Development, prototyping, and experimentation of weapon system components or other technologies, including those based on commercial products and technologies, separate from acquisition programs of record.

(3) Other budget line items as determined by the Secretary of Defense.

(b) Additional Requirements.—For purposes of subsection (a)(2), the amounts requested for development, prototyping, and experimentation of weapon system components or other technologies shall be—

(1) structured into either capability, weapon system component, or technology portfolios that reflect the priority areas for prototype projects; and

(2) justified with general descriptions of the types of capability areas and technologies being funded or expected to be funded during the fiscal year concerned.

(c) Definitions.—In this section, the terms "budget" and "defense budget materials" have the meaning given those terms in section 234 of this title and the term "commercial product" has the meaning given that term in section 103 of title 41.

(Added Pub. L. 114–328, div. A, title VIII, §806(a)(1), Dec. 23, 2016, 130 Stat. 2256, §2447a; amended Pub. L. 115–232, div. A, title VIII, §836(e)(8), Aug. 13, 2018, 132 Stat. 1870; Pub. L. 116–92, div. A, title XVII, §1731(a)(51), Dec. 20, 2019, 133 Stat. 1815; renumbered §4421, Pub. L. 116–283, div. A, title XVIII, §1851(c)(1), Jan. 1, 2021, 134 Stat. 4272.)

Editorial Notes

Amendments

2021—Pub. L. 116–283 renumbered section 2447a of this title as this section.

2019—Subsec. (a). Pub. L. 116–92 struck out "after fiscal year 2017" after "any fiscal year" in introductory provisions.

2018—Subsec. (a)(2). Pub. L. 115–232, §836(e)(8)(A), substituted "commercial products and technologies" for "commercial items and technologies".

Subsec. (c). Pub. L. 115–232, §836(e)(8)(B), inserted before period at end "and the term 'commercial product' has the meaning given that term in section 103 of title 41".

Statutory Notes and Related Subsidiaries

Effective Date of 2021 Amendment

Effective Date of 2018 Amendment

Amendment by Pub. L. 115–232 effective Jan. 1, 2020, subject to a savings provision, see section 836(h) of Pub. L. 115–232, set out as an Effective Date of 2018 Amendment; Savings Provision note under section 453b of Title 6, Domestic Security.

Effective Date

Pub. L. 114–328, div. A, title VIII, §806(a)(2), Dec. 23, 2016, 130 Stat. 2259, provided that: "Subchapter II of chapter 144B of title 10, United States Code [see, now, this subchapter], as added by paragraph (1), shall take effect on January 1, 2017."

§4422. Weapon system component or technology prototype projects: oversight

(a) Establishment.—The Secretary of each military department shall establish an oversight board or identify a similar existing group of senior advisors for managing prototype projects for weapon system components and other technologies and subsystems, including the use of funds for such projects, within the military department concerned.

(b) Membership.—Each oversight board shall be comprised of senior officials with—

(1) expertise in requirements; research, development, test, and evaluation; acquisition; sustainment; or other relevant areas within the military department concerned;

(2) awareness of technology development activities and opportunities in the Department of Defense, industry, and other sources; and

(3) awareness of the component capability requirements of major weapon systems, including scheduling and fielding goals for such component capabilities.

(1) To issue a strategic plan every three years that prioritizes the capability and weapon system component portfolio areas for conducting prototype projects, based on assessments of—

(A) high priority warfighter needs;

(B) capability gaps or readiness issues with major weapon systems;

(C) opportunities to incrementally integrate new components into major weapon systems based on commercial technology or science and technology efforts that are expected to be sufficiently mature to prototype within three years; and

(D) opportunities to reduce operation and support costs of major weapon systems.

(2) To annually recommend funding levels for weapon system component or technology development and prototype projects across capability or weapon system component portfolios.

(3) To annually recommend to the service acquisition executive of the military department concerned specific weapon system component or technology development and prototype projects, subject to the requirements and limitations in section 4423 of this title.

(4) To ensure projects are managed by experts within the Department of Defense who are knowledgeable in research, development, test, and evaluation and who are aware of opportunities for incremental deployment of component capabilities and other technologies to major weapon systems or directly to support warfighting capabilities.

(5) To ensure projects are conducted in a manner that allows for appropriate experimentation and technology risk.

(6) To ensure projects have a plan for technology transition of the prototype into a fielded system, program of record, or operational use, as appropriate, upon successful achievement of technical and project goals.

(7) To ensure necessary technical, contracting, and financial management resources are available to support each project.

(8) To submit to the congressional defense committees a semiannual notification that includes the following:

(A) each weapon system component or technology prototype project initiated during the preceding six months, including an explanation of each project and its required funding.

(B) the results achieved from weapon system component prototype and technology projects completed and tested during the preceding six months.

(Added Pub. L. 114–328, div. A, title VIII, §806(a)(1), Dec. 23, 2016, 130 Stat. 2257, §2447b; renumbered §4422 and amended Pub. L. 116–283, div. A, title XVIII, §1851(c)(1), (2), Jan. 1, 2021, 134 Stat. 4272.)

Editorial Notes

Amendments

2021—Pub. L. 116–283, §1851(c)(1), renumbered section 2447b of this title as this section.

Subsec. (c)(3). Pub. L. 116–283, §1851(c)(2), substituted "section 4423" for "section 2447c".

Statutory Notes and Related Subsidiaries

Effective Date of 2021 Amendment

Effective Date

Section effective Jan. 1, 2017, see section 806(a)(2) of Pub. L. 114–328, set out as a note under section 4421 of this title.

§4423. Requirements and limitations for weapon system component or technology prototype projects

(a) Limitation on Prototype Project Duration.—A prototype project shall be completed within two years of its initiation.

(b) Merit-based Selection Process.—A prototype project shall be selected by the service acquisition executive of the military department concerned through a merit-based selection process that identifies the most promising, innovative, and cost-effective prototypes that address one or more of the elements set forth in subsection (c)(1) of section 4422 of this title and are expected to be successfully demonstrated in a relevant environment.

(c) Type of Transaction.—Prototype projects shall be funded through contracts, cooperative agreements, or other transactions.

(d) Funding Limit.—(1) Each prototype project may not exceed a total amount of $10,000,000 (based on fiscal year 2017 constant dollars), unless—

(A) the Secretary of the military department, or the Secretary's designee, approves a larger amount of funding for the project, not to exceed $50,000,000; and

(B) the Secretary, or the Secretary's designee, submits to the congressional defense committees, within 30 days after approval of such funding for the project, a notification that includes—

(i) the project;

(ii) expected funding for the project; and

(iii) a statement of the anticipated outcome of the project.

(2) The Secretary of Defense may adjust the amounts (and the base fiscal year) provided in paragraph (1) on the basis of Department of Defense escalation rates.

(e) Related Prototype Authorities.—Prototype projects that exceed the duration and funding limits established in this section shall be pursued under the rapid prototyping process established by section 804 of the National Defense Authorization Act for Fiscal Year 2016 (Public Law 114–92; 10 U.S.C. 2302 note). In addition, nothing in this subchapter shall affect the authority to carry out prototype projects under section 4022 or any other section of this title related to prototyping.

(Added Pub. L. 114–328, div. A, title VIII, §806(a)(1), Dec. 23, 2016, 130 Stat. 2258, §2447c; renumbered §4423 and amended Pub. L. 116–283, div. A, title XVIII, §1851(c)(1), (3), Jan. 1, 2021, 134 Stat. 4272, 4273; Pub. L. 117–263, div. A, title X, §1081(a)(5), Dec. 23, 2022, 136 Stat. 2797.)

Editorial Notes

Amendments

2022—Subsec. (e). Pub. L. 117–263 substituted "section 4022" for "section 4003".

2021—Pub. L. 116–283, §1851(c)(1), renumbered section 2447c of this title as this section.

Subsec. (b). Pub. L. 116–283, §1851(c)(3)(A), substituted "section 4422" for "section 2447b".

Subsec. (e). Pub. L. 116–283, §1851(c)(3)(B), substituted "section 4003" for "section 2371b".

Statutory Notes and Related Subsidiaries

Effective Date of 2021 Amendment

Effective Date

Section effective Jan. 1, 2017, see section 806(a)(2) of Pub. L. 114–328, set out as a note under section 4421 of this title.

§4424. Mechanisms to speed deployment of successful weapon system component or technology prototypes

(a) Selection of Prototype Project for Production and Rapid Fielding.—A weapon system component or technology prototype project may be selected by the service acquisition executive of the military department concerned for a follow-on production contract or other transaction without the use of competitive procedures, notwithstanding the requirements of sections 3201 through 3205 of this title, if—

(1) the follow-on production project addresses a high priority warfighter need or reduces the costs of a weapon system;

(2) competitive procedures were used for the selection of parties for participation in the original prototype project;

(3) the participants in the original prototype project successfully completed the requirements of the project; and

(4) a prototype of the system to be procured was demonstrated in a relevant environment.

(b) Special Transfer Authority.—(1) The Secretary of a military department may, as specified in advance by appropriations Acts, transfer funds that remain available for obligation in procurement appropriation accounts of the military department to fund the low-rate initial production of the rapid fielding project until required funding for full-rate production can be submitted and approved through the regular budget process of the Department of Defense.

(2) The funds transferred under this subsection to fund the low-rate initial production of a rapid fielding project shall be for a period not to exceed two years, the amount for such period may not exceed $50,000,000, and the special transfer authority provided in this subsection may not be used more than once to fund procurement of a particular new or upgraded system.

(3) The special transfer authority provided in this subsection is in addition to any other transfer authority available to the Department of Defense.

(c) Notification to Congress.—Within 30 days after the service acquisition executive of a military department selects a weapon system component or technology project for a follow-on production contract or other transaction, the service acquisition executive shall notify the congressional defense committees of the selection and provide a brief description of the rapid fielding project.

(Added Pub. L. 114–328, div. A, title VIII, §806(a)(1), Dec. 23, 2016, 130 Stat. 2259, §2447d; renumbered §4424 and amended Pub. L. 116–283, div. A, title XVIII, §1851(c)(1), (4), Jan. 1, 2021, 134 Stat. 4272, 4273.)

Editorial Notes

Amendments

2021—Pub. L. 116–283, §1851(c)(1), renumbered section 2447d of this title as this section.

Subsec. (a). Pub. L. 116–283, §1851(c)(4), substituted "sections 3201 through 3205" for "section 2304" in introductory provisions.

Statutory Notes and Related Subsidiaries

Effective Date of 2021 Amendment

Effective Date

Section effective Jan. 1, 2017, see section 806(a)(2) of Pub. L. 114–328, set out as a note under section 4421 of this title.

§4425. Definition of weapon system component

In this subchapter, the term "weapon system component" has the meaning given the term "major system component" in section 4401 of this title.

(Added Pub. L. 114–328, div. A, title VIII, §806(a)(1), Dec. 23, 2016, 130 Stat. 2259, §2447e; renumbered §4425 and amended Pub. L. 116–283, div. A, title XVIII, §1851(c)(1), (5), Jan. 1, 2021, 134 Stat. 4272, 4273.)

Editorial Notes

Amendments

2021—Pub. L. 116–283, §1851(c)(5), substituted "section 4401" for "section 2446a".

Pub. L. 116–283, §1851(c)(1), renumbered section 2447e of this title as this section.

Statutory Notes and Related Subsidiaries

Effective Date of 2021 Amendment

Effective Date

Section effective Jan. 1, 2017, see section 806(a)(2) of Pub. L. 114–328, set out as a note under section 4421 of this title.