Requirement for contractors to provide reasonable access to repair materials

(a)

In general

Chapter 363 of title 10, United States Code, is amended by adding at the end the following new section:

4663.

Requirement for contractors to provide reasonable access to repair materials

(a)

Requirement

The head of an agency may not enter into a contract for the procurement of goods unless the contractor agrees in writing to provide the Department of Defense fair and reasonable access to all the repair materials, including parts, tools, and information, used by the manufacturer or provider or their authorized repair providers to diagnose, maintain, or repair the goods. (b)

Waiver authority for existing programs

The head of an agency may waive the requirement under subsection (a) for a contract that is related to a program that began before the date of the enactment of this section upon submitting to the congressional defense committees a justification for the waiver based on an independent technical risk assessment identifying likely impacts to the program’s costs, schedule, or technical performance, including consideration and reporting of quantifiable, cost, schedule, and technical performance implications. (c)

Definitions

In this section: (1)

Fair and reasonable access

The term fair and reasonable access means— (A)terms and conditions that allow the Department of Defense to provide the repair materials to an authorized contractor for the purpose of diagnosing, maintaining, or repairing the good; (B)provision at prices, terms, and conditions that are equivalent to the most favorable prices, terms, and conditions under which the manufacturer or an authorized reseller or distributor offers the part, tool, or information to an authorized repair provider, accounting for any discount, rebate, convenient and timely means of delivery, means of enabling fully restored and updated functionality, rights of use, or other incentive or preference the manufacturer or an authorized reseller or distributor offers to an authorized repair provider; and (C)if a manufacturer does not offer, directly or through an authorized reseller or distributor, the part, tool, or information to any authorized repair provider, then provision of such part, tool, or information at prices, terms, and conditions that are otherwise determined by the United States Government to be fair and reasonable in accordance with this title. (2)

Part

The term part means any replacement part, either new or used, made available by or to an original equipment manufacturer (OEM) for purposes of effecting the services of maintenance or repair of digital electronic equipment manufactured by or on behalf of, sold, or otherwise supplied by the OEM. (3)

Tool

The term tool means any software program, hardware implement, or other apparatus used for diagnosis, maintenance, or repair of digital electronic equipment, including software or other mechanisms that provision, program, or pair a part, calibrate functionality, or perform any other function required to bring the equipment back to fully functional condition.

(b)

Report

Not later than 1 year after the date of the enactment of this Act, the Comptroller General of the United States shall submit to the congressional defense committees a report on the implementation of section 4663 of title 10, United States Code, as added by this section, including a description of compliance by the Department of Defense with the requirements of such section.

Requirement for contract modifications related to repair capabilities

(a)

In general

The Secretary of Defense shall conduct a review to identify contract modifications necessary to remove intellectual property constraints that limit the ability of the Department of Defense to conduct maintenance and access the repair materials, including parts, tools, and information, used by the manufacturer or provider or their authorized repair providers to diagnose, maintain, or repair goods covered by a contract. (b)

Definitions

In this section: (1)

Part

Tool